Aboriginal child protection describes services designed specifically for protection of the children of "aboriginal" or indigenous peoples, particularly where they are a minority within a country. This may differ at international, national, legal, cultural, social, professional and program levels from general or mainstream child protection services. Fundamental human rights are a source of many of the differences. Aboriginal child protection may be an integral or a distinct aspect of mainstream services or it may be exercised formally or informally by an aboriginal people itself. There has been controversy about systemic genocide in child protection systems enforced with aboriginal children in post-colonial societies.
International "In the second half of the twentieth century, removing children from their parents in order to change a people and a culture came to be recognized as an act of oppression, formally considered by the United Nations to be a form of genocide."Andrew Armitage, Comparing the Policy of Aboriginal Assimilation: Australia, Canada and New Zealand, UBC Press, Vancouver (1995), p. 6. Many distinct aspects of aboriginal child protection are thus related to international human rights law,Domestic laws of nation-states may incorporate international norms; see next section. including the 1951 Convention on the Prevention and Punishment of the Crime of Genocide,Article 2 provides: "In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: … (e) Forcibly transferring children of the group to another group." , accessed 19 August 2008. the 1976 International Covenant on Civil and Political Rights, and the 2007 United Nations Declaration on the Rights of Indigenous Peoples. The latter Declaration provides: "Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group." It is non-binding but may be persuasive even for those states that voted against it.Australia, Canada, New Zealand and the United States; see http://www.un.org/News/Press/docs/2007/ga10612.doc.htm, accessed 19 August 2008. Within countries, the expression of aboriginal child protection may be seen to be entangled with issues relating to the right of self-determination of indigenous peoples.International Covenant on Civil and Political Rights, Art. 1: "All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." In Canada, this right may be constitutionally recognized, see: Reference re Secession of Quebec, 2 S.C.R. 217, http://csc.lexum.umontreal.ca/en/1998/1998rcs2-217/1998rcs2-217.html , accessed 21 August 2008.
National The domestic law of a country does not generally recognize an international law unless it is specifically introduced by the domestic law of that country.E.g., Harold Hongju Koh, "Why Do Nations Obey International Law?", 106 Yale L.J. 2599 (1997). This may occur by express statutory provision or by a domestic court having regard to an international norm as reflecting social progress.E.g., Mabo v Queensland [No2], (1992) 175 C.L.R. 1 (Aus.). Even without being specifically introduced into domestic law, international norms may have political effects especially in countries that actively espouse human rights.See: Ryan Goodman & Derek Jinks, "Toward an Institutional Theory of Sovereignty", 55 Stan. L. Rev. 1749, 1750 (2003), reviewed in Harold Hongju Koh, "Internalization through Socialization", 54 Duke L. J. 975, http://www.law.duke.edu/shell/cite.pl?54+Duke+L.+J.+975#H1N0 , accessed 19 August 2008. Aboriginal child protection issues tend to be prominent in countries colonized by a new majority population within the last few centuries. Assimilative policies arose, regardless of whether colonization proceeded mainly by force as in the United States of America and Australia or by treaty as in Canada and New Zealand. By the end of the twentieth century, assimilative policies were generally replaced in legislation, policy or practice by the Aboriginal Child Placement Principle which "outlines a preference for the placement of Aboriginal children with Aboriginal people when they are placed outside their families. The order of preference is generally that an Aboriginal child be placed: within the child’s extended family; or, if this is not possible, within the child’s Aboriginal community; and, failing that, with other Aboriginal people."Law Reform Commission, New South Wales, Research Report 7 (1997) - The Aboriginal Child Placement Principle, http://www.lawlink.nsw.gov.au/lrc.nsf/pages/RR7CHP1, accessed 21 August 2008. Versions of this principle refashioned aboriginal child protection in Western post-colonial democracies along lines shaped by constitutional responsibilities: state in Australia, federal in the United States, federal/provincial in Canada and national in New Zealand, with constitutionalized Treaties playing a pivotal role in New Zealand and an emerging role in Canada.
Australia
In Australia, “Traditionally, the Aboriginal family was a collaboration of clans composed of mothers, fathers, uncles, aunties, brothers, sisters, cousins and so on. This size of family was the norm but is recognised in today's terms as an 'extended family'.”Yolanda Walker, “Aboriginal family issues”, Family Matters, Aug. 1993, p. 51; http://www.aifs.gov.au/institute/pubs/fm1/fm35yw.html, accessed 20 August 2008. In 1983, a Family Court worker noted: "[T]he strength of family affiliation goes a long way to explain the preservation of a distinct culture that has defied assimilation despite aggressive government policies for over a century."Ruth Eversley, "The south-west aboriginal and family law", in Proc. Australian Family Research Conference, Canberra, 1983, v. 2: Family law, Inst. Family Studies, Melbourne (1984), p. 135; http://www.popline.org/docs/0715/199030.html , accessed 20 August 2008. Constitutionally, "The responsibility for legislating for children's welfare lies with each State and Territory Government in Australia."The Aboriginal Child Placement Principle, New South Wales Law Reform Commission Research Report 7 (1997), AILR 13, accessed 21 August 2008. The Aboriginal Child Placement Principle was formulated in Australia in the late 1970s and 1980s. Different child welfare legislation in each state and territory make it difficult to determine the effectiveness of the principle. "[M]any Indigenous families prefer to make informal arrangements where possible for the care of children by extended family members. This distrust of the system is one of the reasons for the shortage of Indigenous carers in most jurisdictions in Australia."Daryl Higgins, Leah Bromfield & Nick Richardson, "Enhancing Out-of-Home Care for Aboriginal and Torres Strait Islander Young People", Australian Institute of Family Studies, 2005. , http://www.aifs.gov.au/nch/pubs/reports/empirical/empirical.html, accessed 3 September 2008. Recent studies have been carried out to see how partnerships can be used to fully understand the family structure in Aboriginal families and how to create partnerships to promote their wellbeing.
Canada
Child protection for aboriginal peoples of Canada has tended from Confederation in 1867 to fall between the cracks. Constitutional arrangements in Canada assigned "Indians""Indians" here includes Inuit; In Re Eskimos, S.C.R. 104 (Can.). to federal and child protection to provincial authorities.British North America Act, 1867, 30 & 31 Vic., (U.K.), c. 3, ss. 91(24) & 92(16); http://www.solon.org/Constitutions/Canada/English/ca_1867.html, accessed 19 August 2008. Several generations of family life for many aboriginal peoples were devastated by a policy designed to "kill the Indian in the child" effectuated through a compulsory residential school program.Prime Minister Stephen Harper apologized for this policy: Hansard, Wednesday, 11 June 2008, "Apology to Former Students of Indian Residential Schools", accessed 19 August 2008. In the 1960s, many aboriginal children were forcibly removed from their families and adopted by non-aboriginal parents, in a process known as the "Sixties Scoop".Tom Lyons, Stolen Nation, http://www.wrcfs.org/repat/stolennation.htm , accessed 21 August 2008. In 1985, a Judge found that "Cultural genocide has been taking place in a systematic routine manner."Edwin C. Kimelman, No Quiet Place, Report of the Review Committee on Indian and Métis Adoptions and Placements (1985), aka the Kimelman Report. During the 1980s, "First Nations peoples [took initiatives] in developing proposals of their own and in negotiating agreements with governments. ... First Nations peoples [developed] service models which reflect[ed] the experiences of their communities, cultures and histories."Andrew Armitage, Comparing the Policy of Aboriginal Assimilation: Australia, Canada and New Zealand, UBC Press, Vancouver (1995), p. 122. In 1982, aboriginal rights were protected in the Canadian Constitution.Constitution Act, 1982, (Can.), s. 35(1): "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed." , accessed 21 August 2008. Developments in case law suggest that since 1982 aboriginal peoples' rights to cultural integrity have been constitutionally protected.Brian Slattery, "Generic and Specific Aboriginal Rights", p. 6, accessed 21 August 2008; and see: Brian Slattery, in Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights, Hamar Foster, Heather Raven and Jeremy Webber (eds.), UBC Press, Vancouver (2007); http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/foster0708.htm, accessed 21 August 2008. Subsequently, some provinces enacted provisions and established policies for aboriginal child welfare agencies to provide services for aboriginal families on reserves under provincial law.E.g., Ontario, Child and Family Services Act, (1984), Part X; R.S.O. 1990, c. C. 11. They depend upon federal funding.Auditor General of Canada & Auditor general of British Columbia, Foreword in Management of Aboriginal Child Protection Services, Ministry of Children and family Development (2008/2009), p. 2: "Funding for the services needs to match the requirements of the policies and also support the delivery of services that are culturally appropriate - which is known to take more time and resources.