The Justice System and Aboriginal People
The Aboriginal Justice Implementation Commission
Aboriginal people appearing before this Inquiry have repeatedly expressed their concern that any overhaul of the justice system in Manitoba must also include a re-examination of the child welfare system. They see the child welfare and justice systems as being interconnected and interwoven. To them, the child welfare system is but one more outside institution that disrupts their lives and societies.
The intrusion by child welfare authorities in the past has been paternalistic and colonial in nature, condescending and demeaning in fact, and often insensitive and brutal to Aboriginal people. Aboriginal children have been taken from their families, communities and societies, first by the residential school system and later by the child welfare system. Both systems have left Aboriginal people and their societies severely damaged.
If Aboriginal people are correct, and we believe they are, part of the reason for the high numbers of Aboriginal people in correctional facilities is the fact that Aboriginal people still do not fully control their own lives and destinies, or the lives of their own children. Aboriginal people must have more control over the ways in which their children are raised, taught and protected.
Failing this, we are convinced we will see more, not fewer, Aboriginal people in our correctional facilities in the future. We will see more young Aboriginal people falling into a pattern that is becoming all too familiar. It takes them from institution to institution, from foster home to young offender facility and, finally, on to adult jails. As Oscar Lathlin, the then chief of The Pas Band, asked our Inquiry, Is the current system conditioning our young for lives in institutions and not in society?
The implications of these patterns are most obvious to people in Aboriginal communities. People there worry because they know their young people make up a significant proportion of their populations today. The numbers of young people in these communities are increasing at a rate far higher than that of the general population. Aboriginal people worry about the future survival of their languages, cultures and societies if yet another generation is swept into institutions and away from their communities.
It is for these and many other reasons that we have made a careful examination of the child welfare system. We felt it necessary because:
An Historical Overview of Government-Aboriginal Relations
For some time, governments have undertaken to serve neglected children by taking them into their care or by helping the families of these children through what we now call child welfare services. Services may include family counselling, substance abuse counselling, assistance to an unmarried parent, or taking the child away from a disrupted home or family and placing the child in a foster home, a group home or with a new family, through adoption. In Canada, each province is responsible for developing and maintaining its own child welfare system. Each province gets financial help from the federal government under the Canada Assistance Plan, which pays approximately half the costs of these programs.
At first glance, this system appears to be one most people would support and encourage. It is certainly a far cry from the way Western or European societies have treated children in the past. Historically, the phrase a mans home is his castle meant just that. Society took a very dim view of interfering with the manner in which the head of a household treated his children. In ancient Rome, a father had complete authority over his children, including the legal authority to sell them into slavery or even put them to death.1
Over time, a fathers power over his children was tempered to a limited right of reasonable chastisement, although this continued to mean a father could beat his children and even sell them into apprenticeship.2 Eventually, there were laws that forbade parents from killing or maiming their children or failing to provide them with the necessities of life. Nevertheless, children were still subject to abuse and forced labour in mines and factories.
Societys attitudes toward children began to change when social reformers became increasingly concerned at the plight of the working poor and, in particular, with the way children were treated. In the latter part of the 1800s, they pressured governments to pass laws to make the lives of children better. Private childrens aid societies formed with the intent of caring for abused, abandoned or neglected children. Governments passed child labour laws and provided for public school systems. For the first time, governments adopted a policy allowing for the intervention by child care workers to protect the life of a child in extreme situations.3 These laws and policies make up the foundation of the modern child welfare system.
Most of these developments, however, passed by unnoticed in Aboriginal communities and reserves. The history of child welfare in these communities developed separately and much differently from the way it did in the rest of society. TOP
The Residential School System
Since the time of earliest contact, Aboriginal people and European settlers have seen things from vastly divergent points of view, because their attitudes and philosophies differed. The interaction of the two groups has been characterized as one of cooperation and conflict but, more importantly, by misconceptions and contradictions.4 One of the first, and perhaps the most enduring, of these misconceptions was that:
At first, these differences had minimal impact upon most Aboriginal people. The missionaries tried to convert Aboriginal people and to mould them into their religious ideal, often with mixed results.
This was an impossible task as long as Aboriginal people continued to live in vibrant, self-sufficient communities often far removed from the missionaries influence. However, this did not prevent the missionaries from forming opinions about the ways Aboriginal people raised and taught their children, or from laying the foundation for future misconceptions of Aboriginal child-rearing methods.
Aboriginal parents taught their children
The early missionaries also condemned Aboriginal child-rearing methods as being negligent, irresponsible and uncivilized. This stereotype was to endure even after Aboriginal people had lost much of their independence and in the point of view of the European, the Indian became irrelevant.9 From then on, the relationship between Aboriginal people and Europeans became even more one-sided and paternalistic. Aboriginal people were reduced to being wards of the state.10 All relevant decision-making power on financial, social or political matters, and even education, came to rest in the hands of the federal government. Eventually, the cause of civilizing Aboriginal people to European cultures and values evolved into the government policy of assimilation, and education became the primary vehicle in the civilization and advancement of the Indian race.11
The federal government had little previous experience in civilizing Aboriginal people so it turned to the United States for an example. It sent Nicholas F. Davin to study the Americans aggressive civilization policy,12 based on sending Indian children to large, racially segregated, industrial schools. Davin was convinced the Americans were correct in their approach and the only way to civilize Aboriginal people was to remove them from the disruptive influences of the parents and the community. His final comment in the report to Ottawa was representative of attitudes of the time that ... if anything is to be done with the Indian, we must catch him very young.13
The federal government delegated the job of civilizing and educating Aboriginal people in Canada to religious organizations and churches. It encouraged the opening of large, industrial residential schools far from reserves and, later, of boarding schools for younger children nearer to their homes. There, every aspect of European life, from dress and behaviour to religion and language, was impressed upon the Aboriginal children. The belief was that Indians were a vanishing race and their only hope of surviving was to assimilate. Their uncivilized and pagan ways would be replaced by good Christian values.
The residential school system was a conscious, deliberate and often brutal attempt to force Aboriginal people to assimilate into mainstream society, mostly by forcing the children away from their languages, cultures and societies. In 1920, during debates in the House of Commons on planned changes to the Indian Act, Duncan Campbell Scott, the Deputy Superintendent of Indian Affairs, left no doubt about the federal governments aims:
The experience of residential schools is one shared by many Aboriginal people all across Canada. That experience was marked by emotional, physical and sexual abuse, social and spiritual deprivation, and substandard education. Even as assimilation was stated as the goal of education for Native people, one researcher wrote, the assimilation was to take place under conditions which would cause no threat to the surrounding business and farming community.15 Few Aboriginal people achieved more than a grade five level of education.
The main goal of residential schools and the assimilation policy, however, was not further education, but, rather, to remove Aboriginal children from the influences of their parents and communities, and to rid them of their languages and cultures. The methods, as one former residential school student explained, often were brutally effective:
After the Second World War, the federal government began to reconsider its assimilation policy. It wanted a more effective means of accomplishing the ultimate aims of the policy. This coincided with yet another revamping of the Indian Act and another set of hearings at the House of Commons. This also allowed another famous Canadian, noted anthropologist Diamond Jenness, to unveil his Plan for Liquidating Canadas Indian Problems Within 25 Years. Jenness proposed abolishing Indian reserves, scrapping the treaties and integrating Indian students into the public school system. For the time being, the federal government shelved most of Jenness proposals. It did, however, heed his suggestion to change the Indian Act to allow Indian children to be enrolled in public schools. This event signalled the beginning of the end for many residential schools.17
The effects upon Aboriginal societies of the federal governments residential school system, and its policy of assimilation, have been astounding. Residential schools denigrated Aboriginal cultures, customs and religions, and disrupted the traditional practices of Aboriginal child-rearing and education. They tore apart families and extended families, leaving the children straddling two worlds, the European one and that of their own Aboriginal societies, but belonging to neither. These policies have caused a wound to fester in Aboriginal communities that has left them diminished to this day. In testimony to our Inquiry, Janet Ross said:
The loss of successive generations of children to residential schools, the destruction of Aboriginal economic bases, the decimation of their populations through diseases and the increasing dependence on government welfare have led to social chaos. This manifests itself in Aboriginal communities through staggering poverty rates, high unemployment rates, high suicide rates, lower education levels, high rates of alcoholism and high rates of crime. In individuals, the legacy of the residential schools has been lowered self-esteem, confusion of self-identity and cultural identity, and a distrust of, and antagonism toward, authority.
The residential school experience also resulted in a breakdown in traditional Aboriginal methods of teaching child-rearing and parenting. Entire families once took part in the raising of children. Young parents, like young parents everywhere, learned how to raise their children from their own parents, by example. Traditionally, they also drew upon the examples and advice of their extended families, their grandparents, uncles, aunts and siblings. The residential schools made this impossible. Without that example, many Aboriginal parents today feel that they have never learned how to raise their own children.
Aboriginal communities have not yet recovered from the damage caused by the residential schools. It is only in recent times that children are again being taught close to home. For the first time in over 100 years, many families are experiencing a generation of children who live with parents until their teens. The readjustment to this new situation has been difficult for both the parents and their children. The current generation of parents does not even have its own experiences as children growing up in a unified family upon which to draw.
The damage done by these schools is still evident today, as Aboriginal people struggle to recapture their cultural practices and beliefs. The return of self-identity and self-esteem is a slow process. Perhaps, if left alone, this social confusion might have corrected itself to some extent, once children returned to their communities. But, as we will see, there was another dramatic intrusion into their lives after the Second World War. TOP
The intrusion by state-run child welfare programs into the lives of Aboriginal children and families did not come about until quite recently, despite the devastating effects which colonization had wreaked on their communities and societies for more than a century. The modern child welfare system, for the most part, is a post-Second World War phenomenon. As one researcher has noted:
However, the end of the Second World War brought about a number of new developments. There was a tremendous proliferation of government-operated and funded social services. These services, once concentrated in urban centres, were increasingly extended to more rural and northern communities, including Aboriginal communities.
This was mirrored by a corresponding proliferation in the new field of professional social work. This profession was anxious to carve a niche for itself. More importantly, the profession provided a means by which the standards of the dominant society could be used to judge traditional Aboriginal family and child care practices. At the same time, Aboriginal peoples became much more visible because of increased mobility and, in particular, because of their massive migration to urban centres in search of jobs, an education or a better life. This increased the contacts between Aboriginal people and the dominant society, and led to heightened awareness of the dire social and economic conditions in Aboriginal communities.
One of the first alarms about living conditions on reserves was sounded in 1947 by the Canadian Welfare Council and the Canadian Association of Social Workers.19 These groups presented a brief to a joint parliamentary committee examining possible changes to the federal Indian Act. The brief described living conditions as inadequate and the services delivered to Aboriginal communities as incompatible with similar services provided to non-Aboriginal communities.
In considering Indian adoptions and the role of the Indian agent, the brief stated that the practice of adopting Indian children is loosely conceived and executed and is usually devoid of the careful legal and social protection afforded to white children.20 As wards of the federal government, Indian children who are neglected lack the protection afforded under social legislation available to white children in the community.21 The councils submission also condemned the practice of sending Aboriginal children to residential schools.
In the minds of many experts of the day, the solution to these problems was obvious. They felt existing provincial child welfare programs should be extended to include federal Indian reserves, since the child welfare services provided by the Department of Indian Affairs were very limited or nonexistent. However, there were several problems with this apparently obvious solution.
The federal government had exclusive constitutional authority over Indians and lands reserved for Indians under s. 91(24) of the British North America Act of 1867. The Indian Act reinforced this exclusive federal jurisdiction. To complicate matters, at that time the federal government had no cost-sharing agreement with the provinces for social services, including child welfare programs, and it was reluctant to carry the costs of such programs itself.
Provincial governments, which were under pressure to extend their jurisdiction in certain areas such as education, policing and social services, including child welfare, were reluctant to extend their responsibilities without federal funding. In the end, neither level of government was prepared to provide child welfare to Indians living on- or off-reserve. This jurisdictional wrangling left Indians caught in a legal no-mans land, with devastating results for their children.
In 1951 the federal government amended s. 88 of the Indian Act to allow all laws of general application ... in force in any province to apply as well to Indians both on- and off-reserve.22 This included child welfare programs. Unfortunately, while the federal government changed the law, it did not provide any additional money to help pay for these new provincial responsibilities. The result was a patchwork of provincial child welfare services to reserves: some agencies in some provinces extended some services to some reserves, some extended none, and some acted to apprehend children only when they considered them to be in a life or death situation.
During the 1960s, public and political attention was once again focussed on the living conditions endured by Aboriginal people on reserves and, specifically, on the welfare of Aboriginal children. In 1966 the federal Department of Indian Affairs and Northern Development completed an ambitious survey detailing all aspects of life for Canadas Aboriginal peoples living on reserves. It was called the Hawthorn Report, after its editor. In respect to child welfare services, the report found that the situation varies from unsatisfactory to appalling.23
In the same year, the federal government, attempting once again to expand existing child welfare services to Aboriginal communities, signed an agreement with the provinces to share the costs of extending social services under the Canada Assistance Plan. No Aboriginal people or organizations were consulted about these changes, and there was no commitment to preserve Aboriginal culture or to provide for local Aboriginal control over child welfare services. These services were to be delivered by non-Aboriginal agencies employing non-Aboriginal social workers. TOP
The history of Aboriginal child welfare in Manitoba closely parallels the situation across the country. During the late 1970s and 1980s, however, the Manitoba government made a number of changes to its child welfare system in order to provide Aboriginal communities with better and more humane services through greater local control.
Like other provinces, Manitoba had passed various laws over the years, dealing with child welfare matters. In 1887, for example, Manitoba passed the Apprentices and Minors Act (S.M. 1877, c. 40), and established a superintendent of neglected and dependent children. The next year, the Act Respecting Infants (S.M. 1878, c. 39) was passed. In 1895 the Humane Societies Act was amended to provide for the establishment of societies which served children, as well as animals. In 1898 An Act for the Better Protection of Neglected and Dependent Children (S.M. 1898, c. 6) was passed, in which provision for the formal establishment of a Childrens Aid Society was made. In the same year, the Childrens Aid Society of Winnipeg was established. In 1922 Manitoba introduced the Child Welfare Act. (S.M. 1922, c. 2). Following the introduction of this legislation, the first foster homes were established and, in the 1950s, the first group homes.
The child welfare system had only a limited impact on Aboriginal people before the 1950s and the accompanying government-sponsored boom in social service programs. However, as we have seen, this changed as two things occurred coincidentally. First, there was a massive migration by Aboriginal people into southern and urban areas. Second, there was an expansion into the North of better communication and transportation, and industrial development. With this expansion came southern bureaucracy. Aboriginal and non-Aboriginal people were no longer separated by vast distances or artificial barriers, such as reserve boundaries. To its astonishment and dismay, the latter group quickly learned of the appalling inequities which affected all aspects of the lives of Aboriginal people. Unfortunately, its responses only worsened the situation. TOP
Before the mid-1960s, there was no organized way to provide child welfare services to Aboriginal peoples in Manitoba living on reserves. Then, in 1966 the federal government and the government of Manitoba entered into an agreement that provided for the existing Childrens Aid Societies of Central, Eastern and Western Manitoba to deliver child welfare services to 14 bands in southern Manitoba. Three-quarters of the bands in Manitoba were not covered by this arrangement. As in the past, the northern bands continued to receive some services from the Department of Indian Affairs, but provincial child welfare authorities would intervene only in emergency or life and death situations.
This expansion of child welfare services to Aboriginal communities, which took place across Canada at this time, left a profound and negative impact on these communities. As the Canadian Council on Social Development documented:
In most provinces, these child welfare services were never provided in any kind of meaningful or culturally appropriate way. Instead of the counselling of families, or consultation with the community about alternatives to apprehending the child, the apprehension of Aboriginal children became the standard operating procedure with child welfare authorities in most provinces.
In Manitoba, the child welfare system protected many Aboriginal children by taking them away from their families and placing them for adoption with non-Aboriginal families. This came to be known as the Sixties Scoop, but it continued into the 1980s. Although the flaws in this approach would only become evident to most of society later, Aboriginal people immediately condemned the practice. As Anthony Wood of Gods River told our Inquiry:
The child welfare system was doing essentially the same thing with Aboriginal children that the residential schools had done. It removed Aboriginal children from their families, communities and cultures, and placed them in mainstream society. Child welfare workers removed Aboriginal children from their families and communities because they felt the best homes for the children were not Aboriginal homes. The ideal home would instil the values and lifestyles with which the child welfare workers themselves were familiar: white, middle-class homes in white, middle-class neighbourhoods. Aboriginal communities and Aboriginal parents and families were deemed to be unfit. As a result, between 1971 and 1981 alone, over 3,400 Aboriginal children were shipped away to adoptive parents in other societies, and sometimes in other countries.25
As part of its comprehensive survey of Aboriginal child welfare policies and procedures, in 1983 the Canadian Council on Social Development compiled a statistical overview of Aboriginal children in the care of child welfare authorities across Canada. The director of the project, Patrick Johnston, found that Aboriginal children were highly over-represented in the child welfare system. They represented 4050% of children in care in the province of Alberta, 6070% of children in care in Saskatchewan and some 5060% of children in care in Manitoba. Johnston estimated that, across Canada, Aboriginal children were 4.5 times more likely than non-Aboriginal children to be in the care of child welfare authorities. Similar findings have been reported by other experts.
What began in the 1960s, with very few exceptions, carried on through the 1970s and 1980s. Patrick Johnston, in examining the history of Aboriginal childrens involvement with the child welfare system, wrote:
These unprecedented levels of apprehensions led Aboriginal communities in the 1970s to put intense pressure on government to stop what, in their view, amounted to cultural genocide. TOP
In 1977, in recognition of the serious problems that existed in delivering child welfare services to Aboriginal peoples, the federal and provincial governments established a tripartite working committee on Aboriginal child welfare. The committee was chaired by Caroll Hurd, from the provincial department of Intergovernmental Relations, with representatives from the Manitoba Indian Brotherhood, the provincial Department of Health and Social Development, and the federal departments of Indian Affairs and Health and Welfare. The Indian Child Welfare Sub-Committee, as it became known, completed its work in 1980. It called for sweeping reforms to the existing child welfare system to serve Aboriginal people better. In its final report, the subcommittee put the challenge this way:
The subcommittee determined that the child welfare needs of Aboriginal people were a matter of urgent and immediate priority. The committee quoted the statement of Provincial Court Judge Garson, now the Deputy Minister of the Department of Justice, as typifying the disorganized state of services:
The Indian Child Welfare Sub-Committee soon learned it had to deal with certain realities and establish certain principles when dealing with Aboriginal people. It had to recognize that registered or status Indians have a unique status as laid out in the treaties, the Indian Act and the British North America Act of 1867. It had to realize that, in Aboriginal communities, the extended family is the first resource for the nurturing and the protection of children. It also determined some families would need support in their parenting role and that children, for a variety of reasons, might need substitute care.30
The subcommittee came quickly to the realization that, as a result of culture, geography and history, Indian people were in a unique situation, with needs peculiar to their special legal, political and social circumstances. One of the foremost issues identified by both Aboriginal people and the subcommittee was the need to preserve Indian identity, in terms of language and culture, within the framework of tribes, bands, communities, extended families and individuals.31 Finally, the subcommittee determined that any child welfare service must include and involve Indian people.
The subcommittee examined the types of services that were required and recommended that a full range of community-based child welfare services be developed. It also recommended that these services include child care resources, services to single parents, adoption, and juvenile probation services.
The subcommittee considered different ways the governments and Aboriginal groups should deliver these programs. It decided that there needed to be a common legal base throughout the province, integrating the statutory provisions for all family-related services to registered Indians in Manitoba. It recommended the development of regional child welfare agencies for Indian reserves controlled by band chiefs and councils, with at least one Aboriginal staff member living in the community and supported by ongoing training, education, professional supervision, guidance and assistance. The report pointed out the need for clear management and administrative authority. There would be a local board or committee of residents that would function as an advisory, monitoring, evaluative and planning group, and which would be a liaison and communication channel between the chief and council and its staff. The board or committee might represent several communities. Some management functions might be included.32
The chief and council on a reserve were to play a unique role, which was to be recognized and respected through cooperative planning and action. A formal service was to be provided as soon as possible to all Aboriginal communities. Funding was to be based on such variables as population considerations, vulnerability of target populations, individual developmental needs, geographic considerations, degree of social and economic development of the local area, and the existing service structure, as well as accessibility to wider resources. The implementation of these programs needed to be flexible, and priority needed to be given to developing local or regional homes or facilities to ensure that children would be placed in their cultural or geographic area whenever possible.
These findings and recommendations proved to be important in laying the foundation for a series of tripartite agreements between Aboriginal groups and the Manitoba and federal governments. TOP
Owing to the influences we have outlined already, Indian child welfare agencies began to develop at a rapid pace in the late 1970s and throughout the 1980s. By 1980, when the Indian Child Welfare Sub-Committee released its report, three bands and two area tribal councils were running their own child welfare services.
In 1976 the Fort Alexander Band signed an agreement with the Department of Indian Affairs and employed a director and three trainee social workers. That same year, The Pas Band hired a social worker for its new child and family service. The next year, 1977, the Peguis Band followed suit and set up a Child Care Committee. In 1979 the Island Lake Tribal Council, representing the bands of Garden Hill, St. Theresa Point, Wasagamack and Red Sucker Lake, hired a preventive services worker to serve those bands and to staff its Preventive Services Committee. Also in 1979, the Dakota Ojibway Tribal Council hired a social worker to work with existing child welfare agencies. For all these bands and tribal councils, the eventual aim was to take over complete control of all social services delivered to their communities, with child and family services as a first step. The 1980 report of the Indian Child Welfare Sub-Committee concluded that:
The report set the stage for negotiations between the federal and provincial governments and the Manitoba Indian Brotherhood, which represented the 49 Indian bands in the province.
The Manitoba Indian Brotherhood wanted 46 childrens service workers at the band level and six resource support workers at the tribal council level. These would be in addition to the 15 child and family workers already working for the bands, and would be paid for by the Department of Indian Affairs. The agreement could be used to set up specific Aboriginal agencies that then could provide a full range of child welfare programs on reserves. Aboriginal communities could control these services and programs. The Aboriginal communities were unanimous in wanting some way of repatriating Aboriginal children already adopted by non-Aboriginal families, of helping families remain together, and of preventing further family breakdowns that could provoke an increase in the apprehension of their children.
Almost immediately, however, there were political problems with these negotiations. Most of the northern bands distrusted both the involvement of the provincial government and the willingness of the federal government to hand over jurisdictional responsibility for Indians on reserves to the Province. Their suspicion was that Ottawa would unload its legal responsibilities for Indians piecemeal, first with child welfare and later with some other areas of responsibility. As one researcher pointed out:
As well, Aboriginal people still bitterly remembered the 1969 White Paper, which clarified the federal governments preferred Indian policy in Canada. In effect, it advocated abolishing the legal rights of Indians, scrapping the reserves system, unilaterally abrogating the treaties with Indians, and removing any special rights Aboriginal people might have derived from specific legislation such as the Indian Act. Still, Aboriginal people faced tremendous problems in their home communities and there was great pressure to find some means of providing for the welfare of their children. However, the resulting tripartite agreement split the Manitoba Indian Brotherhood. The northern bands withdrew to form the Manitoba Keewatinowi Okimakinak, or MKO. The southern bands became the Four Nations Confederacy, or FNC. TOP
Aboriginal people were particularly disturbed by the number of Aboriginal children who were being adopted by people who lived outside the country. By 1982 Manitoba was the only province that still allowed adoptions outside Canada. According to statistics for Manitoba, 38% of Indian adoptions and 17% of Metis adoptions in 1981 were placements in the United States.35 Between 1971 and 1981, 7080% of Manitobas Aboriginal adoptions were in non-Aboriginal homes. Aboriginal leaders strenuously objected to these practices and accused the government of selling babies and committing cultural genocide. In our hearings in Camperville, David Chartrand said:
As the scope of the export of children became more widely known, the reaction of Aboriginal people was one of anger and outrage. Aboriginal leaders linked the child welfare system to the residential school system and the policy of assimilation. They made no distinction between deliberate or unintentional adherence to these policies. To them, it was all part of one ongoing attack by outside authorities, first to destroy their culture and then to absorb them. Glenda Richards of Camperville told our Inquiry:
The provincial government had been stung by the emotional nature of the charges from Aboriginal leaders and battered by an outraged public. In 1982 it ordered a stop to all out-of-province adoptions of Aboriginal children, and appointed Associate Chief Judge Edwin C. Kimelman of the Provincial Court, Family Division, to head an inquiry into the child welfare system and how it affected Aboriginal people. In his final report, No Quiet Place, Chief Judge Kimelman concluded that the Aboriginal leaders were right; the child welfare system was guilty of cultural genocide.
The Sixties Scoop stripped hundreds of Aboriginal children in Manitoba from their families and placed them in non-Aboriginal homes. Some reserves experienced extreme losses of children through the actions of child welfare authorities during this time. Aboriginal people complained that the child welfare agencies offered them only one optionrelinquish custody of the child.37 The child care workers argued that these apprehensions were justified on the basis of inadequate care, improper supervision or unfit circumstances. Chief Judge Kimelman said the child welfare workers were overzealous in applying their authority. He called them well-intentioned but misguided.
There is a theme running through Chief Judge Kimelmans report. It refers constantly to the cultural misconceptions held by child care workers about Aboriginal people and about the way they raised their children. Cultural bias in the child welfare system, Chief Judge Kimelman concluded, is practiced at every level from the social worker who works directly with the family, through the lawyers who represent the various parties in a custody case, to the judges who make the final disposition in the case.39
However, they were not the only ones to blame.
In the end, Chief Judge Kimelman recommended changes to Manitobas child welfare legislation so that the determination of a childs best interests would include consideration of the childs cultural and linguistic heritage. He also proposed that agencies increase the involvement of parents in child welfare programming, provide more counselling in the home to prevent children from being separated from their families and stress a more preventive approach to child abuse.41
Chief Judge Kimelman advocated a drastic overhaul of the child welfare system in Manitoba. Some of his recommendations included:
Chief Judge Kimelman also recommended that the province hire more Aboriginal child care workers, have child care workers attend cultural awareness or Aboriginal studies programs, and recommend that the Province establish Aboriginal child care agencies. He also recommended a system of adoption subsidies, primarily to provide financial aid to people who otherwise could not consider taking care of an adoptive child. This recommendation was aimed at encouraging members of an extended family to take a child into their care. Most of the recommendations from that report have been implemented. Child welfare services on reserves have been taken out of the hands of non-Aboriginal child welfare workers, and now are provided by Aboriginal child and family agencies. However, Chief Judge Kimelmans major recommendation for the establishment of a Child Protector was not implemented.
A strong rationale for the Office of Child Protector was stated eloquently by the chairperson of another provincial inquiry into family and child welfare. In 1975 Justice Thomas R. Berger was chairperson of the British Columbia Royal Commission on Family and Childrens Law. Writing 10 years later, Berger noted the vulnerability of children and families to massive child welfare systems:
In cases such as these, there is no one to act as advocate for the parents or the child, to monitor the circumstances of apprehension, to monitor the actions of the child care agency, to ensure the prompt and appropriate disposition of the case or to do follow-up monitoring afterwards. Who is responsible for ensuring the adequate care of children in public and private agencies? Chief Judge Kimelman recommended the establishment of a Child Protector to provide some assurances of quality service. We believe a Child Protector is necessary to ensure the rights of the child and to ensure the proper administration of all child welfare agencies.
We recommend that:
We recognize that in implementing this recommendation, the provincial government will have to amend the duties of the Director of Child and Family Services, under s. 4(2) of the Child and Family Services Act. We believe that the present legislative framework inappropriately combines the service delivery and administrative function of the director, with weak accountability for some of the appeal and supervisory functions outlined above for the Child Protector. A separation of these two roles is necessary. TOP
There are two main types of child welfare services which agencies provide: mandated and non-mandated. Mandated agencies have the legal authority to apprehend children, while non-mandated agencies do not. Both types of agencies can offer a wide range of child and family support services. The actions taken to establish mandated Aboriginal child welfare agencies in Manitoba were preceded by the development of several local initiatives. The Sagkeeng Child and Family Services of the Fort Alexander Band started providing non-mandated services to the Fort Alexander Band in 1976, when it signed a funding agreement with the federal government. The band formed Sagkeeng in response to serious concerns of its residents about the delivery of social services to the reserve, including child welfare services. However, the reserve got caught in a jurisdictional battle between the federal and provincial governments. The Province did not want to extend its child welfare program to the reserve unless the federal government paid 100% of the costs, the band argued against such a provincial extension of service as an intrusion into its jurisdiction, and the federal government was unwilling to pay for statutory child welfare costs. In the end, Fort Alexander signed a separate agreement with only the federal government in order to deliver its own non-mandated child and family service programs. When Sagkeeng feels that, for the safety of the child, a child needs to be put into care, it calls on an outside agency to work with it. Sagkeeng has developed a fairly good relationship with other agencies, which usually heed its advice on placements. Often, this means a placement with someone in the childs extended family.
In 1981 the Dakota Ojibway Tribal Council signed separate agreements with both the federal and provincial governments, transferring child care from the non-Aboriginal agencies serving eight Indian bands within the Tribal Councils territory. The Dakota Ojibway Child and Family Services (DOCFS) became the first mandated Aboriginal child welfare agency in Canada. The transfer of authority was possible under a section of the former Child Welfare Act, which allowed a director of child welfare to empower a committee of local citizens known to be interested in child welfare to provide child welfare services. DOCFS now handles the full range of child and family welfare services as a mandated agency.
The completion of tripartite negotiations on child welfare between Aboriginal leaders of the Four Nations Confederacy and the federal and provincial governments, and the signing of a master agreement in 1982, were giant steps towards establishing Aboriginally controlled child and family service agencies serving status Indians living on reserves throughout Manitoba. This agreement has been called perhaps the most comprehensive and significant development affecting child welfare services to Indian people in Canada.44
The 1982 agreement has been referred to as the Master Agreement because it defines a broad relationship between the Aboriginal bands and their organizations and the governments. It allows for other subsidiary agreements authorizing the establishment of specific child and family service agencies. The Master Agreement outlines the obligations and responsibilities of the various parties, establishes guiding principles for the operation of Aboriginal child welfare services and specifies the way in which these agencies would be funded. Each government is responsible for funding services on behalf of children who are that governments responsibility. While the actual proportions vary from agency to agency, it appears that about three-quarters of the funding comes from the federal level and the remainder from the Province.
Agencies established through the tripartite agreement provide a full range of child welfare services to status Indians living on reserves. The mandated reserve-based agencies are funded by the federal government, but operate under provincial child welfare legislation, while the non-mandated services of Ma Mawi Chi Itata in Winnipeg are funded largely by the Province, with smaller amounts of funding from the federal government and the private sector.
In 1983 the Manitoba Keewatinowi Okimakinak (MKO) signed a similar tripartite agreement. The following year, the Brotherhood of Indian Nations signed the third such agreement. Today there are five mandated Aboriginal agencies in Manitoba: the Dakota Ojibway Child and Family Services, Southeast Child and Family Services, West Region Child and Family Services, Anishinaabe Child and Family Services, and Awasis Child and Family Services.
While the creation of regional Aboriginal child welfare agencies was authorized by the tripartite agreement and the subsidiary agreements with the tribal councils, it was left up to each band to consider whether to join an Aboriginal agency. Sixty of Manitobas 61 bands have done so by 1991. The internal structure of each agency is determined by its board, which also does its own hiring and establishes operating policies. Most of the boards of directors are made up of the chiefs of the participating bands.
Each band has a volunteer child care committee or a resident child care worker appointed by the chief and council. One band councillor is responsible for child welfare and works with the committee or with the child care worker. In theory, the child care worker is not responsible to the local band child care committee, or to the chief and council. Rather, the worker reports to the agency supervisor and the agencys board. In practice, however, the worker receives considerable direction from local officials. This may present some problems for the local worker, since the lines of authority are not always clear. On the other hand, this system has the advantage of ensuring that the worker receives a lot of advice and assistance from the local community.
The non-mandated Ma Mawi Chi Itata Centre (Ma Mawi) was established in 1984 to serve Aboriginal families in Winnipeg as the result of a determined effort by Aboriginal people to remove services for Aboriginal families and children from the Childrens Aid Society of Winnipeg. Aboriginal people were convinced that the C.A.S. of Winnipeg was more interested in apprehending children than in providing support to parents to help keep their families together. Ma Mawi was founded after a long series of negotiations between the provincial government and the Winnipeg Urban Indian Coalition. It did not replace the mandated services of other non-Aboriginal agencies in the city, but, rather, extended and complemented them. Most Aboriginal people tend to trust Ma Mawi more than the other agencies, perhaps because Ma Mawi is not mandated and, therefore, cannot apprehend their children. For this reason, we recommend that Ma Mawi remain a non-mandated agency. As we shall discuss more fully later, however, there is a need to improve the delivery of mandated services to Aboriginal people living in Winnipeg.
The philosophy of the Aboriginal agencies differs from that of non-Aboriginal child care agencies. The Aboriginal agencies are more sensitive to Aboriginal culture and the needs of the families. They are sometimes able to find solutions which those not familiar with the community might not even consider. While adhering to their understanding of the best interest of the child, they tend to view child and family situations and problems in a much more holistic fashion than do non-Aboriginal agencies, and treat the whole family, rather than intercede only when presented with a troubled or neglected child.
The Aboriginal view of the best interests of the child takes into account the needs of the family and of the community. The Aboriginal agencies believe they can serve the interests of the child best by ensuring a supportive family or, failing that, a supportive extended family. In many cases, the extended family encompasses the whole community. For Aboriginal agencies, the health of the community is an important factor in addressing the best interests of the child. Removing a child from one family in the community can have a negative impact on other children in that family, as well as on the wider community.
If removal of children occurs on a large scale, the ability of the community to function properly and to retain its cultural traditions with a sense of positive self-esteem are undermined, and social disorganization results. Taking measures on a child-by-child basis that undermine the long-term health of the community puts the entire culture at risk.
The child who is removed will always remain an Aboriginal person. Children have to deal with their heritage for their entire lives, must confront stereotypes about it and must learn how to accept it as part of themselves. If their communities and peoples are weakened and thrown into a state of social disorganization, the child will face the negative feelings and stereotypes created by those problems. If the child is placed in a non-Aboriginal home, the likelihood of even greater problems is increased.
Pursuing policies which foster conditions that lead to social disorganization and weaken families is not in the long-term best interests of the child. What is in the best interests of the child is a healthy community. Removing children, as was done in the past, cannot produce healthy communities. Solutions are needed that protect Aboriginal children, while sustaining the health of the communities. Aboriginal agencies believe it is not possible to choose between the best interests of the child and the best interests of the community; the one profoundly affects the other.
Secondly, Aboriginal agencies do not equate apprehension with removal from the family. Child apprehensions are done to remove a child from a particular situation, while still maintaining the maximum possible contact with the family, community and culture. The primary goal of planning for a child taken into care is to reunite the child with the parents, if and when the parents situation improves. If the agencies conclude that the parents are unlikely to be able to reassume their role, then long-term planning involves placing the child with members of the extended family or, if that is not possible, with another family on the reserve. On the other hand, for many non-Aboriginal agencies, it seems that apprehension is both a first resort and a last step. Too often children, once apprehended, are kept removed from their parents or extended family.
A third difference seems to occur in the relative importance attached to economic, educational and other opportunities, compared to the importance of maintaining relationships with parents, extended families and community. Non-Aboriginal agencies give more emphasis to the former, and Aboriginal agencies place more emphasis on the latter.
In examining these differences, it becomes clear that interpretations of best interests of children are culturally bound, and not universal. Aboriginal views of the best interest of the child, or, for that matter, the views of any culture, can conflict with non-Aboriginal views. Such differences are legitimate and should be respected.
In summary, the pace of development and the success of Aboriginal child and family service agencies have been remarkable. In its presentation, the Department of Community Services informed our Inquiry that over 45,000 Indian people on reserves, and more than 28,000 off-reserve status Indian people, are now served by Aboriginal agencies. As a result, in 1987, 840 of the 1,200 Aboriginal children in care in Manitoba, or about 70%, were under the care of Aboriginal agencies. There are now more than 900 foster homes in Aboriginal communities and over 300 Aboriginal professionals who have been trained to deliver culturally appropriate child and family services. TOP
When the current state of Aboriginal child welfare in Manitoba is compared to the conditions that existed even 10 years ago, the changes cannot be characterized as anything less than remarkable. Prior to 1980, Aboriginal communities frequently were denied services and the few services they did receive were provided by non-Aboriginal agencies. These services often were disruptive and destructive to the very families and communities they were supposed to help. The federal and provincial government officials responsible for bringing about the positive changes that have occurred are to be commended for their efforts. However, it should not be overlooked or forgotten that it was Aboriginal people, particularly Aboriginal women, who refused to accept the status quo and pressed hard for most of the changes that have come about.
Tremendous advances have been made in Manitobas approach to the delivery of Aboriginal child and family services, especially when compared to those of many other jurisdictions. The approach that has been adopted here is serving as a model for Aboriginal people in other provinces and countries, many of whose governments continue to operate as Manitoba did throughout the 1960s and 1970s. The numerous evaluations of the Manitoba approach that have been conducted to date, and the results in Aboriginal communities themselves, confirm our belief that Aboriginal communities benefit greatly when they gain more control of the services that affect them.
Limited space will not permit us to review the extensive documentation that has been prepared on the effectiveness of Aboriginal child and family service agencies. However, we would like to summarize some of the common findings and observations that have been reported in these studies. In particular, we will draw on the evaluation of the Canada-Manitoba-Brotherhood of Indian Nations Child Welfare Agreement that was conducted by Caroll P. Hurd and Jeanne M. Hurd,45 the evaluation of the Northern Indian Child Welfare Agreement that was conducted by Peter Hudson and Sharon Taylor-Henley,46 and the evaluation that was conducted of the West Region Child and Family Services and of the Southeast Child and Family Services by consultants Coopers and Lybrand.47 These and other studies have found that:
The relevant literature has also pointed to a number of problems:
In 1980 there were no children in the care of mandated Aboriginal agencies. A review of the numbers of children in care in December 1984 and in March 1990 shows continuing progress in regard to the care of Aboriginal children by mandated Aboriginal agencies. In this latest five-year period, the proportion of Aboriginal children in the care of Aboriginal agencies has grown to almost 70%. When we take into account the fact that Aboriginal agencies are not mandated to provide service outside the reserve, this is a remarkable achievement.
Children in Care
Source: Manitoba Child and Family Services Statistics
It must be remembered that the reforms we have been discussing have been aimed primarily at improving the services to status Indians living on reserves, many of which simply had little or no service prior to 1980. Considering the degree of poverty and stress on many reserves, it is remarkable that the rate of increase in the number of Aboriginal children in care has been no greater than that of non-Aboriginal children. TOP
In 1987, Manitoba passed a new Child and Family Services Act. This Act incorporates many of the improvements that have been achieved in the delivery of Aboriginal child and family services in Manitoba. In particular, the declaration of principles provides that:
We believe that this Act is a very progressive piece of legislation and we commend the provincial government for recognizing the right of reserve communities to have control over the child and family services that affect them. We believe this step towards the Aboriginal administration of institutions and services is very significant. The success of these agencies points the way for a similar approach in the criminal justice system. However, Indians are the only Aboriginal community to which this recognition has been extended. Neither the Metis people, nor other Aboriginal people living off-reserve, can be served by mandated Aboriginal agencies. We believe this should change.
The reserve-based agencies demonstrate that Aboriginal communities, given the opportunity, can not only provide services, but can provide them better than the outside agencies or institutions they replace. Aboriginal agencies understand the people and the problems with which they are dealing. As a result, there is a greater degree of satisfaction among Aboriginal people with the Aboriginal agencies than with the non-Aboriginal ones.
At the same time, the existing child and family service system is not perfect. In particular, the improvement of the Aboriginal child and family service system in Manitoba requires the provincial governments attention on a number of issues. These include:
We will examine each of these issues and provide our recommendations as to how we think these challenges should be addressed. TOP
There are a number of financial and other resource issues facing the child and family service system. Caseloads in all agencies have risen sharply, particularly cases related to abuse and serious neglect. Each worker is carrying more cases than workload studies suggest can be appropriately served. What is more striking is that available evidence suggests that on a per-case basis, real agency funding from provincial sources has actually fallen in the past three years.
While our focus is on services to Aboriginal peoples, we know that financial support for non-Aboriginal child and family service agencies is far from adequate. We are aware that there are no funding formulas related to caseloads or needs used to develop agency budgets, and that recent, severe funding constraints have resulted in reductions in prevention and early intervention services, particularly in Winnipeg. Among those most in need of child and family services in Winnipeg are Aboriginal residents. We are concerned that as services are reduced, these families will be among the hardest hit. It is false economy to reduce services to children and families in need, because the effects of such reductions inevitably will show up in other systems. Children will drop out of school, families will suffer higher levels of abuse and disintegration, and rates of involvement in the young offenders system will increase.
As with provincial funding, federal child and family service funding has developed over the years on an incremental basis, with annual adjustments related, but not necessarily equal, to inflation. Each agency negotiates its funding separately with the Department of Indian and Northern Affairs. Funding is not based upon population, remoteness, levels of need or any other criteria. Agencies present funding levels restrict them to acting only when crises already have occurred. Inadequate funding has created deficits and prevented some families and children from receiving the services they require. This should not be allowed to continue.
Indian Affairs is proposing to introduce a formula funding approach which takes some of the above criteria into account. According to Indian Affairs staff, the formula will result in some increased support for all agencies, and substantial increases for those in the North. We believe that the new funding regime must recognize and support the full range of programs and services which are mandated under the Act. If this new funding will enable the agencies to be involved more extensively in community development, public education, support for family counselling and healing, and prevention, we welcome the development of the formula.
We recommend that:
Aboriginal child and family service agencies need more than increased funding. They require other types of support and assistance, as well. There is a critical need to have more and better trained child care workers. Staff need better ongoing training and development plans after they are hired. Agencies should provide better working conditions, better advancement opportunities and improved benefits to attract and retain Aboriginal professionals in the field of child welfare. In short, human resources training and development are needed for the Aboriginal child welfare system.
There are already some examples upon which to draw. Distance education programs may be included in any long-term training and development plan for Aboriginal people in northern or remote communities. The Winnipeg Education Centre provides a range of degree programs for people seeking a career in social work. ACCESS programs have successfully demonstrated that Aboriginal people can complete higher education and training programs in a variety of professions.
The Brandon University Northern Teacher Education Program (BUNTEP) provides an example of an extremely effective program to increase the number of Aboriginal teachers, with over 200 graduates to date. This program provides training in northern communities, establishing pods to train people from a given settlement over a period of several years. The award-winning PENT (Project for the Education of Native Teachers) program which trains teacher aides as full teachers is a slightly different, but equally successful program. Students attend programs on Brandon campus during the summer, but are able to remain with their families during the remainder of the year, employed as school aides, gaining both theoretical and practical teaching experience. PENT has over 200 graduates, of whom 85% were employed as educators, according to a 1985 survey.49
All these examples make it clear that it is both practical and possible to develop successful programs to support substantial numbers of Aboriginal people to gain professional skills. All indications are that the graduates meet professional standards and remain employed in Aboriginal communities. Programs such as these should be taken into account when training and development plans for child and family service agencies are considered. Unfortunately, the recent provincial budget made severe reductions in the BUNTEP and ACCESS programs, and in other northern post-secondary education programs. We find these reductions to be regressive, in view of the continuing need and the high numbers of Aboriginal people who directly benefited from them. TOP
Aboriginal Agency Accountability
We believe that the way in which the individual Aboriginal child and family service agencies are structured is appropriate, given the services they provide and the needs of the communities they serve. The agency board and administrative staff, the chief and council of a band, and the federal and provincial governments all are involved. However, we believe this can create a confusing mix of jurisdiction, responsibility and accountability. At present, there are multiple answers to the question of to whom the Aboriginal agencies are accountable. This issue will require continued attention as new forms of Aboriginal self-government evolve, expanding and clarifying the scope of agency mandates. We do not believe outside models or structures should be imposed upon the Aboriginal agencies by the funding agencies. Rather, we believe that the Aboriginal agencies and the Aboriginal communities must develop and clarify their own lines of authority. We must then be prepared to accept and to work with their structures.
Integrating Child Protection and Young Offenders Systems
We believe that a more holistic approach to the issues of young people is needed, whether they are involved in the child welfare system or in the youth justice system. Essentially, both systems are dealing with children, families and communities. There is a bewildering array of programs, services and jurisdictions involved. The Court of Queens Bench, Family Division, has exclusive jurisdiction to hear child protection cases in Winnipeg, St. Boniface, Selkirk and Brandon. In the rest of the province, the Queens Bench and the Provincial Court both have jurisdiction. At Provincial Court circuit points, only that court deals with these matters. Youth court matters are within the exclusive jurisdiction of the Provincial Court throughout the province. The youth court system is sometimes called upon to try to untangle the inevitable confusion when services or jurisdictions overlap. However, under the Young Offenders Act, there is no provision to refer cases to a child and family service agency.
Since both the youth court and child protection systems may be called upon to deal with the problems of the same young person and his or her family, we propose that these services be better coordinated. When two separate cases involving the same youth reach court, they should be dealt with by the same judge in the same division of one court. Judges should also have the authority to involve a child protection agency to assist a young person charged with an offence. We believe that the closer involvement of the youth courts and child and family service agencies, on an ongoing basis, would provide the opportunity for more informal and more productive resolutions when such entanglements occur. We deal at greater length with these issues and make specific recommendations in Chapter 8 on court reform and in Chapter 15 on young offenders.
We are anxious to see Aboriginal communities become more involved in justice services, and we believe that many of the barriers between the justice and child welfare systems are artificial ones that need to be broken down. There is also a need to change the philosophical focus of current justice services so that less emphasis is placed on punishment and more emphasis is placed on the needs of Aboriginal individuals and communities. Aboriginal child and family service agencies, we believe, are strategically placed to bring about these changes.
We see the opportunity for Aboriginal child and family service agencies to be a building block towards the development of more comprehensive social and justice services for Aboriginal communities. While more resources will obviously be required if the existing agencies are to take on an expanded role, there are significant opportunities to reallocate resources that are not now being used in a very effective manner.
Organizational and Management Support
Aboriginal child and family service agencies have not been receiving enough organizational support. In particular, these agencies need assistance to develop policies, standards, protocols and procedures in a wide array of areas. All child and family service agencies need modern information systems to enable them to communicate with other agencies, to track cases and to share information through some network. These are fundamental needs for any effective organization, and no less so for an Aboriginal child welfare agency. However, these needs of all agencies, including Aboriginal agencies, have largely been ignored.
We recommend that:
The current Aboriginal child and family service agencies we have referred to above are all Indian agencies. They do not include or serve non-band members or non-status Indians. They provide services to only a few Metis people who actually live on a reserve. As a consequence, most Metis people are served by non-Aboriginal agencies. Many of the problems that characterized child welfare services for Indians prior to the development of Aboriginal child and family service agencies continue to exist for Manitobas Metis people.
Metis is a word historically used to describe a person of mixed Indian and French heritage in Manitoba and other western provinces. Today, it has become a term used to describe anyone in Canada of mixed Indian and white ancestry. A non-status Indian is an Indian person who had status or treaty rights, but has lost them or has had these rights taken away by government.
Both Metis and non-status Indians have been considered, for jurisdiction purposes, a part of the non-Aboriginal population by the federal and provincial governments. There have been few statistical studies to identify the numbers and social characteristics of either group. Metis and non-status Indians, therefore, have not been able to convince either government to fund specific services, except in conjunction with general Aboriginal programs which include status or treaty Indians and Inuit, as well.
A study commissioned by our Inquiry estimates that there are at least 47,000 Metis and 6,000 non-status Indians in the province. Neither of these groups, either jointly or separately, has been able to obtain the culturally appropriate child welfare services now considered absolutely rightful and necessary for status Indians.
In 1982, when the Charter of Rights and Freedoms was enacted, section 35 of the Charter recognized aboriginal peoples to include Metis and it recognized and affirmed their existing aboriginal rights.50 Unfortunately, unlike status Indians, for whom the legal sources of their rights are generally recognized, the sources of Metis rights and the meaning of existing rights remain unclear. Nor does there seem to be a government commitment to clarify these uncertainties.
There are no specific legislative references to Metis people in the Child and Family Services Act to regulate or improve child and family services in Metis communities. There do not appear to be culturally appropriate child welfare services for Metis communities, despite specific mention of this as a duty of an agency under s. 7(1)(m) of the Act. In terms of child and family welfare, Metis people face many of the same living conditions and social problems as Indian people. Metis organizations and communities also want control of the child and family services affecting their communities, because they feel their people have been as adversely affected by the intervention and policies of non-Aboriginal child welfare services as have Indians. We agree, and believe that the fundamental principles on which the Act is based should be revised.
We recommend that:
The Indian and Metis have never considered themselves as part of the same culture. The Metis people have distinct problems and aspirations that require distinct solutions. The uniqueness of their culture and society should be recognized. Like the Indian people, the Metis people want and need to receive services from separate institutionsdeveloped, administered and controlled by them. While Indian agencies do not oppose the provision of services to the Metis, they recommend that the Metis run their own separate agencies. That is certainly the wish of the Metis themselves.
We recommend that:
Band members frequently move to and from the reserve for both economic and social reasons. They retain a strong attachment to their home reserve for generations after they leave. Their extended families still live on the reserve and they may feel a stronger tie to their reserve than to the town or city in which they live. They still see the reserve government as theirs, representing their rights and continuing to care for them. It is appropriate, therefore, that the necessary arrangements be made to extend the authority of Aboriginal agencies to the members of their bands who live off-reserve.
Giving the reserve-based agencies a clear mandate to serve off-reserve members would also clarify the issues raised recently, in which the off-reserve authority of Aboriginal agencies has been challenged. Aboriginal agencies, with the apparent consent of government, have long provided services to band members living in Winnipeg. In a recent case, a judge of the Court of Queens Bench, Family Division, was called upon to interpret the mandate of the agencies as set out in the Orders-in-Council creating them. She held that the authority of the Aboriginal agency did not extend beyond the reserve.51 Our proposals would change that situation.
We recommend that:
Our recommendation is in line with the spirit, if not the letter, of the tripartite agreements and, we believe, would be the best way of delivering child and family services to off-reserve band members. If the present Aboriginal agencies can exercise jurisdiction off reserves, Aboriginal people living in non-Aboriginal communities throughout the province would be able to receive culturally appropriate services. TOP
It seems ironic that Aboriginal agencies are mandated to provide services on 60 reserves across Manitoba, but there is no mandated Aboriginal child care agency in Winnipeg, which has the greatest number of status, non-status and Metis people of any area in the province. Existing Aboriginal agencies have attempted to offer services to band members who have moved from their home reserves to other areas, or to urban areas such as Winnipeg, but they have neither the resources nor a clear legal mandate to do so. In total, there are over 40,000 Aboriginal people living in Winnipeg who are without access to a mandated Aboriginal agency.
In Winnipeg, at the time of writing, there were six non-Aboriginal child and family service agencies providing all mandated services to Winnipeg residents, including Aboriginal families.
Statistics indicate that two of these agencies had a particularly large volume of Aboriginal cases. Central Winnipeg Child and Family Services had an average Aboriginal caseload of 285 children in care at any one time, representing about 50% of their total cases. Thirty-eight per cent of their caseload (215 cases) were Metis or non-status Indians. This agency employed 11 Aboriginal people within its staff of 80. Northwest Child and Family Services reported that 45% or 490 of its caseload of 1,100 families were Aboriginal. Three hundred of these families, or more than two-thirds of the Aboriginal caseload, were Metis or non-status Indians. Northwest Child and Family Services employed 12 Aboriginal people within its staff of 82. Other child and family service agencies in Winnipeg reported that between 5% to 15% of their clients were Aboriginal. These agencies employed very few, if any, Aboriginal people.
The success of the Aboriginal agencies in rural Manitoba and in the North is in stark contrast to the lack of success with Aboriginal caseloads of the non-Aboriginal agencies in Winnipeg. They struggle to deal with people from a different culture who have a different language and who are in a foreign environment.
The many criticisms which we received concerning Child and Family Services in Winnipeg fell into four main categories:
Many who spoke to us complained of the lack of Aboriginal workers in the Winnipeg agencies. Nevertheless, we acknowledge that the percentage of Aboriginal workers in Winnipeg Central and Northwest significantly exceeds that found in any other part of the justice system which we have examined, and more than meets the conventional tests of employment equity. This is a direct reflection of deliberate training strategies, coupled with a willingness on the part of agencies to hire Aboriginal staff members. We commend the agencies for their actions, and call for the continuance of this positive direction. Nevertheless, when agencies have Aboriginal caseloads of 50%, it is inevitable that many Aboriginal families will be served by non-Aboriginal workers. This points out a major problem whenever Aboriginal people use non-Aboriginal agencies. They will probably be served by non-Aboriginal staff.
Non-Aboriginal workers were accused of apprehending children without clearly communicating to the parents the reasons for the apprehension or the steps that would be followed in having their case reviewed. One mother said that she lost custody of her children because she did not understand what was being said in court. Another said she found the whole child welfare system to be strange because her worker was unable to understand the importance of the extended family. Still another person said that the existing non-Aboriginal agencies are not a friendly open door to native people. Her children were held by an agency for seven months in a non-Aboriginal foster home. Her story is all too typical:
There is a common perception that the non-Aboriginal agencies apprehend first and offer assistance only afterwards to try to resolve the problems they, in part, have created. Thus, in spite of the fact that numbers of Aboriginal staff are employed by the mandated agencies in Winnipeg, many Aboriginal families voluntarily go to the non-mandated Ma Mawi Chi Itata Centre with their problems, rather than face a mandated non-Aboriginal agency. Most of the Aboriginal presenters to our Inquiry said that they trust Ma Mawi because they know it will not suggest apprehending their children as soon as it learns of a problem.
During our hearings we discussed the possibility of establishing an Aboriginal child care agency in Winnipeg. The consensus among the Aboriginal leadership and of the boards of Central and Northwest Child and Family Services agencies was that an Aboriginal agency was a worthwhile objective.
We believe there is considerable merit to having an Aboriginal agency operating in Winnipeg in the same way as Aboriginal agencies operate on reserves in Manitoba. We believe that many of the same positive results can be achieved. For example, Aboriginal agencies have very few contested cases proceeding to court. In addition, they are able to utilize the extended family more effectively than do the non-Aboriginal agencies. This is not surprising, because of their knowledge of the communities and because of the willingness of family members to communicate openly with Aboriginal workers in their own language.
As well, we were struck by the high numbers of Aboriginal people who continued to be involved with Northwest and Central Child and Family Services agencies. While we are certain that these agencies endeavoured to fulfil the mandate required of them in a manner consistent with the goals of the legislation, we believe that they were constrained by the fact that those in charge, both at the board and management levels, are non-Aboriginal. In their presentations to us, both agencies acknowledged these limitations and encouraged us to consider a mandated Aboriginal agency for Winnipeg.
We have also noted that the Ma Mawi Chi Itata Centre has enjoyed great success in its achievements with Aboriginal families. While this might be attributed in some part to its inability to apprehend children, and its resulting perception as a non-threatening resource, we believe Ma Mawis success is more related to the agencys culturally appropriate approach to service provision.
Finally, we concur with the view that, for far too long, Aboriginal people have been clients of agencies and institutions which have failed miserably in their attempts to heal Aboriginal family problems. We believe that Aboriginal people should have the right and the means to control their own lives and to provide their own services to the fullest extent possible.
We recommend that:
The establishment of a mandated Aboriginal agency in Winnipeg, in conjunction with a Metis agency, and extended mandates for reserve agencies would raise a number of jurisdictional questions which would require resolution. For example, agencies would frequently come into contact with families of mixed heritage, with parents being status or non-status Indian, Metis or non-Aboriginal. A single, non-Aboriginal parent might be caring for an Aboriginal child. Which agency would have jurisdiction in such cases?
We suggest that relationships among mandated agencies be governed by the following protocols:
This agency should be established in consultation with interested groups in the city of Winnipeg, including the existing child and family service agencies, representatives of the existing Aboriginal agencies in other parts of the province, the Manitoba Metis Federation and Ma Mawi Chi Itata Centre. Care should be taken to ensure that the agency is directed and controlled by Aboriginal people. While the agency should have a mandate to apprehend children in need of protection, we believe that its primary interest should be the needs of children and the maintenance of well-functioning families. We anticipate such an agency would offer extensive and flexible support services and that the removal of children from the extended family would be a last resort.
We expect that an Aboriginal agency in Winnipeg would also be able to work with the reserve-based Aboriginal agencies and with the proposed Metis agency with less conflict and greater understanding than is currently the case with the non-Aboriginal agencies. We believe that the result will be better service to children, to Aboriginal families and to Aboriginal communities.
To reflect some of the suggestions of the existing Aboriginal agencies, and some of our own thoughts and observations, we recommend that the proposed agency be established subject to the following guidelines:
The interpretation of child welfare legislation is an area where cross-cultural misunderstanding frequently occurs. Terms such as adequate care, proper supervision and unfit circumstances, not to speak of in the best interests and in need of protection, are vague and value-laden. For the past four decades, many problems have arisen because the interpretation of these phrases has been left to the discretion and understanding of social workers, police, lawyers and judges who possess little or no understanding of Aboriginal culture. Cultural differences between Aboriginal families and non-Aboriginal social workers have blinded many non-Aboriginal social workers to the fact that different Aboriginal child-rearing methods are not wrong or inadequate, but, rather, are acceptable alternatives.
In the past, non-Aboriginal individuals working within the child welfare system influenced policy and made decisions which directly affected the lives of Aboriginal children. The sad fact is that many of them were and continue to be ill-informed about Aboriginal cultures and about the alternatives available within Aboriginal communities to assist the child. Many were also incapable of working with Aboriginal people and their communities to assist those groups in coming to grips with their own role in the child welfare system.
Aboriginal communities in Manitoba have worked very hard to obtain a greater degree of control over the future of their children and communities. But they have yet to obtain full control, free from federal and provincial government interference. This becomes critical when one recognizes the continuing high levels of contact between Aboriginal families and the non-Aboriginal child welfare system in Manitoba. While many of the legal issues and practical problems have been addressed, to some extent, through the establishment of Indian child welfare agencies functioning on Indian reserves, many serious problems continue to exist in urban and non-Aboriginal communities.
We believe that the Aboriginal child care agencies have been an outstanding success and that they warrant further support and encouragement. They are dealing with Aboriginal families with sensitivity, commitment and ability. At the same time, it must be recognized that their programs and activities sometimes will become the subject of controversy and criticism. Every time an Aboriginal agency stumbles, some critics inevitably will cry out for its dismantling and a return to the old way. But, as we and other inquiries have concluded, the old way was neither the only way, nor the best way. The need for ongoing support and a commitment to Aboriginal child welfare agencies must be recognized and reaffirmed.
Aboriginal people have enjoyed little influence or control over many of the issues which affect them, often adversely. Manitobas experience in the field of child welfare, however, suggests that when a consensus develops that something must be done, then positive changes can take place. The reform of the child welfare system is an example of that. It is proof that Aboriginal people are ready, willing and able to exercise greater control over aspects of their lives which some erroneously believe can only be dealt with by non-Aboriginal professionals.
We must now do more to support and extend the reforms that have taken place. Positive steps have been taken, but not all Aboriginal people have benefited. Existing agencies must be strengthened and those Aboriginal people not served by Aboriginal agencies must now be afforded this opportunity. Aboriginal peoples must continue to gain more responsibility for the child and family programs and services that affect them. By expanding the range and number of mandated Aboriginal agencies as we have recommended, all Aboriginal Manitobans will have the opportunity to receive culturally appropriate child and family services. We believe that the rapid and positive development of reserve-based agencies augers well for the future success of Aboriginally administered programs. TOP
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