The Promise and the Risks of Aboriginal Self-Government over Aboriginal Child Welfare
The somewhat disappointing results of recent initiatives aimed at sensitizing the existing Australian and Canadian child welfare systems to the needs of Aboriginal children and families, exemplify the limitations and problems of trying to accommodate what is a fundamentally different indigenous worldview within the established normative framework of non-native society. The apparent difficulties in achieving satisfactory reform have led many commentators to reject ‘accommodation’ and ‘sensitization’ as viable ways forward, at least in the longer term. Aboriginal communities, strongly supported by many academic commentators, contend that the successful decolonization of Aboriginal child welfare can only be achieved by recognizing and respecting the inherent right of Aboriginal peoples to self-government over child welfare.1 That has to be right. Tinkering with the edges of the non-native child welfare system is certainly not decolonization and may therefore prove, in the long term, to be an expensive and time-consuming distraction.2 Essentially, the solutions to the problems surrounding Aboriginal child welfare will have to come from within the communities themselves and that can only be achieved by truly empowering those communities and recognizing that they have the ultimate responsibility for their own children. It means self-government.
In Canada, where moves towards self-government are far more advanced than in Australia, self-government is now recognized by the federal government as an inherent right or entitlement of Aboriginal peoples.3 In principle, the right of Aboriginal communities to exercise self-government over child welfare therefore requires no further justification. However, there are a number of claimed advantages to Aboriginal self-government which if realized promise to transform the lives of Aboriginal children. These claimed advantages whilst not necessary in principle to justify Aboriginal claims to self-government, strengthen the strategic case for support. Indeed, the potential benefits of self-government over child welfare can be seen, albeit at times only weakly, in the success of a number of initiatives aimed at restoring a large degree of Aboriginal autonomy over a range of social welfare and justice programmes, including Aboriginal-controlled child welfare agencies. However, it is equally clear from the Canadian experience that self-government is not a panacea. And whilst the work of Aboriginal controlled child welfare agencies in Canada has illustrated some of the potential benefits of self-government, so has it highlighted some of the more serious risks – risks which, given the extreme socio-economic marginalization of Aboriginal communities in Australia, are of even greater concern within the Australian context. It is crucial that the potential risks posed by self-government to the rights and interests of vulnerable Aboriginal children stand at the forefront of any debate concerning Aboriginal self-government over child welfare.
Against the backdrop of the failings of the sensitization and accommodation strategies, the next two chapters will therefore consider the various arguments in favour of self-government over child welfare, as well as the purported ‘domestic’ solutions to protecting children who may be perceived to be at risk within self-governing communities. They will necessarily focus on Canada where the political and legal debate over the right of Aboriginal peoples to self-government, as well as actual moves towards implementation of that right, are considerably more advanced than in Australia. Drawing on Canada’s experience of the tentative moves towards restoring Aboriginal control over a range of social welfare programmes, including child welfare, the case for self-government based on its perceived benefits and risks will first be discussed. The following chapter will then turn to examine Canada’s approach to the inherent right of Aboriginal peoples to self-government as revealed through the jurisprudence of the Supreme Court and the modern treaty process. The implications of Canada’s general approach to self-government for the implementation of Aboriginal self-government over child welfare in particular will then be considered, before finally examining the Canadian government’s approach, within this framework of self-government, to ensuring adequate protection for the rights and interests of individual Aboriginal children. It is hoped the problems identified with Canada’s approach to self-government and the protection of Aboriginal children’s rights within self-governing communities will prove instructive for those currently engaged in debates concerning Aboriginal self-government over child welfare in Australia.
Although Canada has yet to see the implementation of Aboriginal self-government on a national scale, there are numerous examples of smaller community-led projects in the fields of criminal justice, health and social welfare in which the community’s sense of control and ownership over the project, as promised more generally by self-government, has proved vitally important to its success.4 A number of communities have, for example, successfully taken control of problems such as substance and alcohol abuse and began, by their own initiative, the process of individual and community healing.5 It is claimed that, unlike programmes imposed by non-native governments, community-driven programmes such as these can be tailored to meet specific needs, are realistic and therefore work.6 Moreover, they can draw on the community’s own rich body of traditions, values and practices to find solutions which accord with the community’s philosophy and beliefs and reinforce a positive sense of cultural identity. There are similarly encouraging signs within the context of child welfare that programmes designed and delivered by Aboriginal people are more effective in attaining their objectives than programmes that are designed and delivered by non-Aboriginal people.7 As discussed in Chapter 3, although there have clearly been limitations as to what Aboriginal-controlled child welfare agencies have been able to achieve, programmes which have been designed and delivered at the community level have been able to generate a level of community support and involvement far beyond that which could be achieved by non-Aboriginal agencies.8 Where the community has been fully involved in the design of a programme, it is claimed that the sense of invasion once felt by the community is replaced by a sense of control.9 The programme consequently enjoys much greater trust, acceptance and support from the community and people are generally more willing to cooperate.10 The close involvement of the community in the design of the programme can also ensure a more culturally appropriate service and one that, at least to some degree, is able to incorporate the basic cultural norms of the community into its underlying philosophy and approach.11 More generally, by involving the community in the design and delivery of child welfare programmes, the community’s level of awareness and understanding about issues such as domestic violence and substance and alcohol abuse can be significantly improved.12 With greater awareness comes greater interest in, and commitment to, addressing the problems.
Moreover, self-government over child welfare will not occur in isolation and the benefits of self-government therefore extend far beyond the improvements which have been achieved in specific programmes such as these. It is important to see self-government over child welfare within the wider context – in which it forms just one core part of a much broader picture in which Aboriginal communities should once again enjoy the space to begin rebuilding healthy, functioning, cultural, social, economic, legal and political communities.13 Many of the problems within contemporary Aboriginal communities can be directly attributed to the destructive forces of colonialism.14 The need for decolonization to enable Aboriginal people to rebuild their devastated communities is now widely supported by post-colonial theory.15 Building from an appreciation of the debilitating effects of colonialism, post-colonial theorists argue that if Aboriginal communities are to begin to address the consequences of the attempted destruction of their political, economic, cultural and social identities, including overcoming the ‘culture of dependency’16 that now dominates within many communities, they must be recognized as autonomous cultural and political groups within the Canadian system.17 They must be afforded self-government.18 Key to self-government is ending the paternalism that has permeated every aspect of the relationship between Aboriginal peoples and the federal and provincial governments, guaranteeing Aboriginal communities the necessary jurisdictional space to rejuvenate their cultural and traditional values, and to re-establish their unique identity as distinct peoples.19 Sustainable economic growth and political development, alongside the rejuvenation of Aboriginal legal systems, cultures and traditions, will be central to the rebuilding process.20
All of these wider changes will have an important impact on Aboriginal child welfare. For example, the re-emergence of prosperous, healthy communities, governed by strong cultural and political values, is likely to have a dramatic effect on the current levels of violence and abuse within Aboriginal communities. Attacking the underlying causes of the problem can help alleviate the symptoms. Children will be the direct beneficiaries of such a process. Clearly, the best interests of Aboriginal children lie within the context of strong functioning communities. If self-government can promote such communities it can therefore only be to the benefit of Aboriginal children.21
A move to self-government, including self-government over Aboriginal child welfare, therefore holds out enormous promise for Aboriginal peoples. The economic, social, cultural and political advantages of decolonization should be felt by the whole community, including Aboriginal children. In the specific context of child welfare, self-government should restore to Aboriginal communities the jurisdictional space and the political and legal authority to craft their own distinctly ‘Aboriginal’ child welfare systems, enabling them to deliver culturally appropriate services ‘owned’ and understood by the communities. However, self-government is not an easy answer. The restoration of community-control over Aboriginal child welfare is a complex and challenging process carrying significant risks as well as benefits for Aboriginal children.
The Risks of Self-Government: The Desjarlais Inquiry and Beyond
The findings of the Inquiry into the death of 15-year-old Lester Desjarlais whilst in the care of Dakota Ojibway Child and Family Services (DOCFS), an Aboriginal-controlled child welfare agency delivering child and family services to the Sandy Bay reserve community in Manitoba, stand as a shocking testament to the fact that community control over child welfare is not a panacea for the current problems.22 The Inquiry into Lester’s death, headed by Justice Giesbrecht of the Manitoba Provincial Court, revealed an intensity and depth of socio-economic and political problems within the Sandy Bay reserve community that fundamentally undermined the work of DOCFS, whilst raising very serious questions about the capacity of the community to exercise responsible government and protect its most vulnerable members. Caution is required in drawing any generalized conclusions from this one tragic case, particularly given events now occurred almost 25 years ago. However, it is clear that these problems were not peculiar to one particular time and one particular place. Although it is to be expected that things within the Sandy Bay community and DOCFS will have improved, perhaps dramatically, over the intervening years, the depth and complexity of the problems revealed by the Desjarlais Inquiry clearly present a long-term challenge to effective self-government. Similarly, the serious problems identified by the Desjarlais Inquiry are not unique to Sandy Bay. The voices of many Aboriginal women regarding the extent of intra-familial violence and abuse within their communities,23 as well as their clear concern at the inadequate response of their political leadership to that phenomenon,24 provides strong support for Justice Giesbrecht’s conclusion that the serious problems he had identified were common to many Aboriginal communities.25 Whilst focusing on the death of Lester Desjarlais, the Inquiry thus provides a crucial insight into the risks of self-government for Aboriginal communities and their most vulnerable citizens across the Canadian provinces.
The Colonial Legacy
Poverty and community disintegration
Poverty and the attempted destruction of Aboriginal cultures have contributed enormously to the current problems within Aboriginal communities.26 It is clear from the Inquiry into the death of Lester Desjarlais that many Aboriginal communities face the most appalling socio-economic problems. Poverty, amongst other things, can have a devastating effect on the levels of violence and abuse within a community.27 To understand the full effect of poverty on Aboriginal communities, it must be seen within the wider colonial context. As was discussed in Chapter 2, the arrival of the European colonial forces led to the widespread dispossession of Aboriginal people from their land, resulting in mass relocation.28 One of the most debilitating consequences of this process was that many Aboriginal communities lost their traditional economic base, without sharing in the benefits of the ‘advance’ of industrialization and development.29 The isolation of many Aboriginal communities has compounded their economic crisis.30 Some communities are too geographically isolated to become economically self-sufficient, whilst others are situated on land that is generally unsuitable for sustained economic development.31 Crippling unemployment and resulting welfare dependency on the Canadian government has been the result. Poverty and the creation of a ‘dependency culture’ make communities extremely vulnerable to the problems of serious abusive behaviour.32
A further complicating legacy of colonialism and ‘modernization’ has been the weakening of Aboriginal community institutions which traditionally maintained social cohesion and control.33 The destabilizing loss of traditional social and political institutions has been exacerbated by the imposition of a foreign system of governance in the form of Band Councils under the Indian Act.34 The consequence has been a weakening of community ties, values and societal standards of behaviour across Aboriginal communities.35 McCaskill argues that in communities which are functioning well there exist strong social pressures to obey the values and standards of one’s group.36 These pressures are exerted through interaction with the community and the positive influence of leaders and role models.37 A strong sense of identity, belonging and community cohesion is nurtured.38 On the other hand, when these community ties do not exist, ‘frustration, alienation, and confusion’ develop.39 Resulting disintegration is manifested in violence, sexual abuse and alcoholism, with family instability one of the most common symptoms of this disintegration in community life.
The situation is not of course this bleak in all Aboriginal communities. Different Aboriginal communities across Canada have suffered the effects of colonialism to varying degrees of severity, and many communities have begun the process of community healing and cultural regeneration, returning to their traditional values and social institutions to rebuild their devastated communities. However, as the death of Lester Desjarlais makes very clear, the effects of colonialism are not easily forgotten. To establish effective self-government under these conditions is a mammoth challenge, and the difficulties facing the communities should not be underestimated.
The devastating consequences of a complete disintegration in community life were clearly evident in Sandy Bay where there would appear to have been a complete collapse in any kind of community norms or standards. This collapse was most clearly seen in the rampant sexual abuse to which children on the reserve were subjected.40 Strong complacency about the sexual abuse of children was a major problem, with the levels of sexual abuse so high that for many it had simply become an accepted phenomenon in the community: an ordinary part of daily life. Other members of the Band appeared to have been in complete denial that sexual abuse even existed within the community.41 Those who did admit there was a problem engaged their energies in trying to hide the fact from the outside world, rather than protect the children at risk and deal with the offenders.42 The most shocking aspect of this denial was that it even affected the child protection workers at DOCFS, some of whom publicly defended known abusers.43 Community denial and complacency over the sexual abuse of children permeated every bad decision that was made with regard to Lester.44
This tragic problem is not restricted to Sandy Bay. The Desjarlais Inquiry was unequivocal that the evidence ‘strongly suggests that the problem of sexual abuse on reserves is simply enormous’45 – a problem of ‘epidemic proportions’.46 Justice Giesbrecht’s conclusions are more than borne out by similar reported experiences across reserve communities in Canada.47 Nahanee claims that there is an ‘almost total victimisation of women and children in Aboriginal communities’, and agrees with Justice Giesbrecht that violence in Aboriginal communities has now reached ‘epidemic proportions’, with sexual and physical violence affecting over 80 per cent of Aboriginal children.48 It is estimated that up to 80 per cent of Aboriginal girls and 50 per cent of Aboriginal boys in the North West Territories have been sexually abused by the age of eight.49
The phenomenon of sexual abuse and violence within Aboriginal reserve communities was again thrust into the national spotlight with a series of reports on the South Island Justice initiative in British Columbia.50 Violence and abuse was revealed to be rampant on the South Island reserves. Exacerbating the problem was the founding of the South Island Justice Committee which made it difficult for women to seek help outside the reserve community. It was claimed that women seeking to take action against an abuser were persecuted and ‘intimidated into using a council of elders and the bighouse rather than to pursue charges and reveal family secrets in the Canadian legal system’.51 The problem of abuse was clearly extensive. It was observed that in some communities there was not one person who had not been touched by sexual abuse.52 One former member of the Tsartlip Band claimed:
There are 40 women on one reserve alone who could lay sexual assault charges. There is almost a pathology of enslavement. The life support system is the Band, the reserve, the family, the extended family. They are dependent for their housing, their food, their utilities even their clothing. If you break the code of silence there is a price to pay.53
Complacency towards violence and abuse would again appear to be a common experience within Aboriginal communities. As it was put by the Royal Commission:
In too many Aboriginal communities, or among subgroups within Aboriginal communities, violence has become so pervasive that there is a danger of it coming to be seen as normal.54
It is suggested that a change of attitude towards sexual abuse has occurred within some communities, from one of abhorrence, to the acceptance of abuse and violence as a ‘normal’ part of daily life, even something to be proud of.55 Many communities have preferred to keep silent on the issue – a silence which has proved to be an enormous barrier to community healing.56 The response of the South Island community leaders to the South Island reports exhibit strong signs of denial. It is reported that one local leader claimed he ‘had never heard of any sexual abuse on his reserve. It is not a problem that we are aware of. It has not been reported to anyone I know’.57 Another common response was to attack the behaviour of the women:
Native Indian women worried about Indian self-government should go home to their communities and stop listening to white Toronto feminists. A lot of this is driven by the white women’s movement. Instead of romping around with non-Indian women in Toronto, maybe they should be in their communities working with their people to make the changes they know have to be made.58
One explanation by another community leader for the concerns over the justice initiative and the resulting vulnerability of Aboriginal women was that women simply did not understand the true traditions of the community:
I would feel intimidated too. That’s because these women don’t understand the native process.59
These responses denigrate the very real concerns of Aboriginal women. The refusal of some community leaders to take women’s concerns over violence and abuse seriously undermines confidence in the capacity of the Aboriginal leadership to protect vulnerable women and children under self-governing political regimes. As two key inquiries have pointed out, community leaders and those with influence in the community have a critical role to play in addressing these issues.60 There needs to be leadership from influential community members by giving a clear message to the communities that violence and abuse is unacceptable. By refusing to speak out against violence, the abuse is thereby condoned. However, the Aboriginal leadership are accused of compounding rather than helping to solve the problems:
Although denial is rampant concerning Aboriginal male abusiveness, it is primarily men who have almost total power and control in Aboriginal communities e.g. Band Councils and Chiefs, male police, etc. These Aboriginal male leaders have protected each other and have collectively or collusively contributed to the violence against Aboriginal women and children through their inaction, ineptness, ineffectiveness or neglect.61
Problems with the current leadership are not restricted to the local level. Regional and national leaders have been equally muted on the question of sexual abuse and violence against Aboriginal children and women. As Justice Giesbrecht observed:
The track record of the Assembly of Manitoba Chiefs on these issues is very poor and too often the response of the chiefs has been to play politics instead of addressing the problems, or to simply condemn governments for past injustices and then blame the absence of action on the problems of a “lack of resources”.62
The Manitoba Justice Inquiry reached a similarly damning conclusion:
The unwillingness of chiefs and council to address the plight of women and children suffering abuse at the hand of husband and father is quite alarming. We are concerned enough about it to state that we believe that the failure of Aboriginal government leaders to deal at all with the problem of domestic abuse is unconscionable. We believe that there is a heavy responsibility on Aboriginal leaders to recognise the significance of the problem within their own communities. They must begin to recognise as well, how much their silence and failure to act actually contribute to the problem.63
Many Aboriginal women similarly feel that the national leadership have ignored their concerns. Ovide Mercredi, the former leader of the Assembly of First Nations, has argued that the concerns of Aboriginal women will be answered when self-government is in place and the damaging colonial structures are dismantled.64 However, he has been criticized for pressuring Aboriginal women to keep quiet.65 This apparent opposition to women speaking out could be founded on the understandable fear of Aboriginal leaders that by raising issues of abuse and violence within the communities, the fight for self-government will be undermined. It is, however, suggested by some Aboriginal women that it finds its real basis in the fear of the male leadership that they will lose their privileged positions of power.66
Problems surrounding the generally male dominated Aboriginal leadership have been particularly acute at the local Band level. These problems have been explained by a concept termed ‘internal colonialism’.67 It must be appreciated that many of the current difficulties surrounding the Aboriginal male leadership results from their own victimization and abuse at the hands of non-native governments.68 These difficulties have been exacerbated by the imposition of a colonial system of government at the Band level and the indoctrination of Aboriginal men with a patriarchal understanding of dominance and power.69 Hammersmith has argued that many Aboriginal leaders are now the paid agents of the colonial government and that instead of a sense of responsibility characteristic of traditional Indian leadership, money has become the bigger issue.70 The colonial underpinnings of these problems do not, however, lessen the very real plight of Aboriginal women and children currently facing such high levels of violence and abuse.71
Local government officials on the reserves have come under particularly harsh criticism, not only for their silence on issues of abuse, but in some cases for their active participation as perpetrators of the violence and for protecting other known abusers from investigation and punishment.72 This criticism is applied not only to the Chief and Council, but Elders who hold important positions of respect and influence within the community.73