Supreme Court of Canada –  2 S.C.R. 751
The Supreme Court found that there a provincial adoption act can apply to aboriginal people, in this case because it created no inconsistency. The child can keep its status even though he is adopted by two non-Natives.
Was section 10 of the Adoption Act, a provincial statute, incorporated into the Indian Act under section 88 of the same Act?
Yes, because it does not create any inconsistency (unanimous – many concurring opinions).
Between: Natural Parents
And: Superintendent of Child Welfare of British Columbia and the Petitioners For Adoption
Interveners: Canada, Saskatchewan, Ontario and Alberta
The facts of this case pertain to the adoption of an Indian child by non-Indians. The petitioners for adoption acted as the child’s foster parents after he was admitted to a hospital where one of them works as a nurse. He came to the hospital severely injured as a result of being neglected by his natural parents. The natural parents, both band members and registered Indians, opposed the validity of the adoption order.
The British Columbia Adoption Act stipulates that the adoption of a child registered as an Indian by non-Indians does not affect its status, rights and privileges.
The government: The Adoption Act does not impinge on the Indian Act since the provisions in question are of general application and do not affect core “Indianness”. There is no inconsistency in maintaining the status of an adopted Indian child if the applicants were non-Indian, even though the status in given by a federal statute.
The natural parents: As the original family of the child put up for adoption, they represent the essence of his Indian identity. By adopting the child, the non-Indian applicants will severe the child’s tie to its natural family, cutting him from his Indian identify. The Adoption Act, a provincial legislation, cannot maintain the Indian status because it will be interfering with the federal’s legislative power. The only way to apply the Adoption Act to Indians would be under section 88 of the Indian Act, and only to the case of an adoption of a Indian child by Indian parents.
British Columbia Supreme Court (1974): An adoption order could be made without the natural parent’s consent. However, there is an inconsistency between the Adoption Act and the Indian Act. Since the Indian Act provides a special status to those covered by the Act and to apply the terms of the Adoption Act to them would rob them of that status.
British Columbia Court of Appeal (1974): The Adoption Act is a legislation of general application that does not impinge on the Indian Act. The arguments pertaining to the Canadian Bill of Rights on the basis of race are set aside.
Laskin, Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz, de Grandpré
Laskin (Judson, Spence and Dickson): The Adoption Act is incorporated into the Indian Act because it is provincial law of general application and its enforcement does not create inconsistency with the Indian Act, more precisely the definition of “Indian”. The adoption of the Indian child by the non-Native parents can be permitted.
Martland (and Pigeon for the effect of section 88): The Adoption Act can be applied to Indians. They fall under its scope because it was not enacted specifically for Indians, but for every resident of the province. Section 88 does not incorporate every provincial law into the Indian Act, it simply states the extent to which they are applied.
Ritchie: The Adoption Act can be applied to Indian residents of British Columbia since it is applied to every resident of the province. The specific stipulation in the Adoption Act that Indians keep their status does not change anything, it is ineffective.
Beetz (Pigeon and De Grandpré): The Adoption Act is only incorporated in the Indian Act, because the latter law does not provide for legal adoption. it refers to the definition of “Indian”. The specific stipulation in the Adoption Act that Indians keep their status is ultra vires.
Under some Aboriginal customs, the extended family, grandparents, uncle, aunts and cousins, is responsible for the protection and care of children if the natural parents are unable to do so. This informal process provided that the band’s traditions and values could be passed on to a younger generation (INAC, 2005: 3).
For a long time stretching from 1870, the federal government promoted the assimilation of Aboriginals living on Canadian territory. It sent Aboriginal children to residential school, separating them from their parents. The objective was to “take the Indian out of the child” by forcing the pupils to abandon their culture, their language and their traditional way of life. Social problems affecting Aboriginal communities are still rooted in the residential school system since parents who studied there had difficulties in raising their children.
In the 1960s, provincial child welfare agencies across Canada increase the removal of Aboriginal children from their parents on the ground that they were neglected because of their dire state of poverty. They were placed outside of their communities in the vast majority subsequently adopted by non-Aboriginal families in a 70 percent proportion (Tourigny, Domond, Trocmé, Sioui and Baril, 2007). These adoptions and placements, known as the “Sixities Scoop”, were the subjects of a public inquiry commissioned by the Government of Manitoba after the death of an Indian child in the welfare system in the late 1970s. J. Edwin Kimelman was chairman of the Review Committee on Indian and Métis Adoptions and Placement and authored the final report No Quiet Place in 1983 in which he qualified theses operations as “cultural genocide” (Kimelman, 1984). In 2006, more than 27,000 Aboriginal children were placed in foster care across Canada. This number is three time higher than the annual attendance of residential school at its height. (FNCFCSC, 2005: 8).
According to Natural Parents v. Superintendent of Child Welfaire et al. decision, provincial child welfare legislations are incorporated into the Indian Act under its section 88 if they are not in conflict with this Act or its treaties, which has yet to happen. This means that registered Indians, both on and off-reserve, fall under their scope. It is also true for all provincial legislations on matters relating to child and family services, such as adoption, child custody, child welfare and child support. As of 2010, the federal government has not used its discretionary power to enact legislation relating to the protection and care of Indian children (INAC, 2005: 5). Since the provinces are responsible of providing health and social services under section 92 (7) of the Constitution Act, 1867 and the federal for “Indians, And Lands reserves for the Indians” under section 91 (24) of the same Act, any programs related to the protection and care of Indian children must have the assessments of both orders. The current First Nations Child and Family Services Program is financed by the federal government, but administered by the concerned province (INAC, 2010b).
First Nation Child and Family Services Program
The First Nation Child and Family Services Program started in 1990 and went under significant changes in 2000. It finances First Nations agencies to oversee the child and family services on reserve (INAC, 2005: 4). Its primary objective is to help First Nations provide culturally sensitive child welfare services for those living ordinarily on-reserve, but at the same time consistent with provincial legislation on these matters. (INAC, 2010b). At all time, children in the care of a First Nation agency must be protected from neglect and abuse. The difference with provincial welfare agency is that the First Nation agency will seek the support of the concerned child extended family and community in order to limit its placement or adoption outside of the reserve (INAC, 2005: 6). These initiatives are being implanted at the time in First Nations communities in Nova Scotia, Quebec, Prince Edward Island, Saskatchewan and Alberta (INAC, 2010b). They emphasize on more on prevention than reprimand. In the last twenty years, thirty-four First Nations welfare agency received funding from INAC, and in the past decade, the amounts allocated double to reach $523 million in 2009 (INAC, 2010a: 3).
One of those agency is the Sytème d’intervention d’autorité atikamekw (SIAA), started in 2000 by the Attikamekw National Council in Quebec. The Attikamewks reached an agreement with the Mauricie and the Lanaudière regional Directors of Youth Protection. Instead of involving the Director of Youth Protection when the security or the development of an Attikameks child residing on reserve is at stake, the SIAA intervene instead. With an approach close to the nation’s values and traditions, the nation’s social services try to solve the issue the participation of the child’s extended family. If they cannot reach a consensus, an elders council is summon and decided in a way that the well-being and the security of the child is maintained. (CNA, 2009 ; Carpentier, 2000).
Quebec’s Youth Protection Act
In Quebec, the Youth Protection Act contains two provisions relating to Aboriginal children, both on and off-reserve. The Director of Youth Protection must take into account the Aboriginal ascendancy of a child in its decision-making process. To that effect, the Court of Appeal is of the opinion that this factor must not be prioritize over the child’s best interest (Directeur de la protection de la jeunesse c. J.K.). On the same subject, the Supreme Court also said that the Aboriginal ascendancy factor’s importance diminished proportionally to the time the child spent with its future non-Aboriginal parents (Racine v. Woods). Section of the Youth Protection Act, adopted in 2001, allows for Aboriginal communities to enact their own mechanism for child welfare after reaching an agreement with the provincial government.
It requires that the powers of the Director of Youth Protection to intervene in abuse or neglect cases be kept. (Carpentier, 2000). According to AWQ and the Regroupement des Centre d’amitié autochtone du Québec (RCAAQ), few of those agreements have been reached and the problematics of Aboriginal children placement outside of their communities remains unchanged. The effects on this new generation are the same as those related to the residential school system. They also complain about the lack of cultural training given to social worker about aboriginal issues and of communication with the parents at fault. (QNW and RCAAQ, 2005). In late 2009, the Act to amend various legislative provisions concerning health was assented. It modified the Youth Protection Act in order to give further powers to Aboriginal communities in the assessment of a child situation and living condition. A member of the community’s staff, more culturally sensible to the child situation, can make such decision. The change is also welcome by rural aboriginal communities that do not have the resources to put in place a full children welfare agency (Bernard, 2009).
Delgamuukw v. British Columbia,  3 S.C.R. 1010
Dick v. The Queen,  2 S.C.R. 309
Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31,  2 S.C.R. 146
Kruger and al. v. The Queen,  1 S.C.R. 104
Mitchell v. M.N.R., 2001 SCC 33,  1 S.C.R. 911
Indian Act, R.S.C. 1985, c. I-5
Youth Protection Act, R.S.Q., c. P-34.1
Racine v. Woods,  2 S.C.R. 173
Directeur de la protection de la jeunesse c. J.K., 2004 CanLII 60131 (C.A.)
Bernard Claire. 2009. Commentaires sur le Projet de loi n° 24, Loi modifiant diverses dispositions législatives en matière de santé. Québec : Commission des droits de la personne et des droits de la jeunesse du Québec.
Carpentier Daniel. 2001. Commentaires sur le Projet de loi no156, Loi modifiant la Loi sur la protection de la jeunesse. Québec : Commission des droits de la personne et des droits de la jeunesse du Québec.
Comat Ioana and Anne-Marie Genin-Charette. 2009. Protection de la jeunesse en milieu autochtone. Montréal: Réseau DIALOG [unpublished].
Conseil de la Nation Atikamekw. 2009. Système SIAA. Online. http://www.atikamekwsipi.com/systeme_siaa. Retrieved on June 29th 2010.
First Nation Child and Family Caring Society of Canada. 2005. Wen’de : We are Coming to the Light of Day. Online. http://www.fncfcs.com/docs/WendeReport.pdf. Retrieved on June 29th 2010.
Government of Canada. 2008. Statement of Apology—to Former Students of Indian Residential Schools. Online. http://ainc-inac.gc.ca/ai/rqpi/apo/sig-eng.pdf, Retrieved on June 23rd 2010.
Indian and Northern Affairs Canada. 2005. First Nations Child and Family Services – National Program Manual. Online. http://www.ainc-inac.gc.ca/hb/sp/fncf/pubs/fnc/fnc-eng.pdf. Retrieved on June 29th 2010.
Indian and Northern Affairs Canada. 2010a. Better Outcomes for First Nations Children: INAC’s Role as a Funder in First Nations Child and Family Services – May 2010. Online. http://www.ainc-inac.gc.ca/hb/sp/fncf/cfsd-eng.pdf. Retrieved on June 29th 2010.
Indian and Northern Affairs Canada. 2010b. First Nation Child and Family Services Program. Online. http://www.ainc-inac.gc.ca/hb/sp/fncf/index-eng.asp. Retrieved on June 29th 2010.
Kimelman Edwin. 1984. File Review Report : Report of the Review Committee on Indian and Métis Adoptions and Placement. Winnipeg: Manitoba Community Services.
Olthuis John, Kleer Nancy and Roger Townshend. 2008. Aboriginal Law Handbook. 3rd ed.. Toronto : Carswell.
Quebec Native Women and Regroupement des Centres d’amitié autochtones du Québec. 2005. Joint Presentation Concerning the Revision of the Youth Protection Act : Is the History of the Aboriginal Residential Schools in Danger of Repeating Itself?. Online. http://www.faq-qnw.org/documents/memoirelpj05_eng.pdf. Retrieved on June 29th 2010.
Tourigny Marc, Domond Pascale, Trocmé Nico, Sioui Bruno and Baril Karine. 2007. Les mauvais traitements envers les enfants autochtones signalés à la Protection de la jeunesse du Québec: comparaison interculturelle, First Peoples Child & Family Review 3 (3) : 81-102.