Law Times

PAGE 4 NEWS augusT 24/31, 2009 • Law Times child welfare agencies in Can- ada, the Anishinabek Nation is developing its own laws in a bid to take over services for families in trouble from the province. "Th e idea is to put in place something that is more cultur- ally relevant to the communi- ties," says Tracey O'Donnell, legal counsel to the organization representing 42 First Nations in Ontario stretching from Sarnia to Th under Bay to Ottawa. Over the coming months, the Anishinabek Nation will be holding consultations across the province on what such a law should entail. Th e sessions be- gan in Th under Bay this month and will conclude in Toronto on Nov. 18 and 19. Offi cials hope to a create a draft law that will go up for review and input by the 42 Anishinabek developing own child welfare laws W BY GLENN KAUTH Law Times ith one in 10 ab- original children under the care of of our children rests with us," says Patrick Madahbee, the grand council chief of the An- ishinabek Nation. "Removing kids from our communities is not the answer." Aboriginal communities have a long history of contact with provincial child welfare authori- ties, particularly since a 1965 agreement that gave Ontario the power to administer services for status Indians on reserve. In the meantime, controver- 'First and foremost . . . the responsibility of taking care of our children rests with us,' says Grand Chief Patrick Madahbee. member nations next year with a view of getting approval by June. Th en, it will be up to each community to implement its own version of the framework, says O'Donnell. "First and foremost . . . the responsibility of taking care sy has swirled over past practices that saw many aboriginal chil- dren end up with white parents, something native communities have since railed against as an injustice similar to that of resi- dential schools. "If one looks back histori- cally at how Canadian society has dealt with aboriginal chil- dren, there have been huge mistakes that have resulted in lifelong harm," says Nicholas Bala, an expert in family and children's law at Queen's Uni- versity in Kingston. As a result, he says, aborigi- nal communities have over the years taken back control of child welfare services by setting up their own agencies. In the Anishinabek case, the goal is to try to keep kids in troubled families within their own com- munities rather than sending them elsewhere. Madahbee wants to see a greater focus on prevention, al- lowing parents accused of things like neglect to get help and coun- selling so their kids can stay with them. It's unclear how a new law would mesh with exist- ing provincial legislation and agencies, however. In part, the idea is to create a framework that would allow the Anishinabek member nations to create their own services. But extending that concept to the le- gal realm would be complicated, Bala points out. In most cases, new aboriginal agencies established in places like Manitoba operate under provincial legal structures. In one case, the Spallum- cheen Indian Band in British Columbia has run its own sys- tem under a bylaw it passed in 1980, but so far that model has been the exception. Doing so required the approval of the federal government, something other First Nations that have attempted to set up their own systems haven't secured. Bala notes another issue is jurisdiction. O'Donnell says the Anishinabek Nation will be claiming child welfare is an area of inherent jurisdiction under the aboriginal right to self-gov- ernment. "Th e Anishinabek are First Nations and they have inher- ent jurisdiction over matters that are integral to the nation. Th ere's nothing more integral to any nation than its people." Professor Brad Morse, an expert in aboriginal law at the University of Ottawa, says in the absence of a self-government agreement, the Anishinabek Na- tion would have to seek recogni- tion of its own child welfare law from the federal and provincial governments. But, he adds, given that the whole issue of self-government is unresolved, it's uncertain what the result of any court action on that question would be. On one hand, like O'Donnell, he says the An- ishinabek Nation would have a case to make that child welfare is essential to its survival and therefore an inherent right. On the other hand, the provincial government could claim it had essentially extinguished aborigi- nal jurisdiction in that area by occupying it many years ago. For now, Madahbee says the Anishinabek will try to make changes under the existing pro- vincial law. "Th ings have to be taken in steps," he says, noting he will work with the provincial gov- ernment on the issue. "If that doesn't happen, we're going to be implementing this anyway." With child welfare, questions For years, the Canadian Labour Law Library (CLLL) has been trusted as the definitive online research service for labour arbitration issues. In 2009, the new generation of online labour law research begins, as the Canadian Labour Law Library becomes Labour Spectrum. Labour Spectrum is designed with both labour law and labour arbitration practices in mind, so you can choose the content that fits your research needs. The Essential Edition gives you the same great content that you currently enjoy (Brown and Beatty, L.A.C., C.L.A.S., images of decisions in PDF format), plus labour legislation from all Canadian jurisdictions and labour law decisions from the courts. The Classic Edition gives you all the content on the Essential Edition, as well as more commentary (Canadian Labour Law, Second Edition and Willis & Winkler on Leading Labour Cases (formerly Labour Arbitration: The Year in Review), a collection of labour relations board decisions and a case citator. Labour Spectrum is your one-stop labour law research tool, combining expert commentary, case law and legislation with functionality that is practical and easy to use. Briefcase CD-ROM Edition Available remain about how eff ective ab- original-run services have been. Bala says while keeping kids in their communities is laudable, it's not always ideal in small places where there might not be enough appropriate foster families. Heritage should be one factor in determining the best interests of the child rather than the paramount one, he says. At the same time, Morse says Contact your Account Manager at 1.800.263.2037 to arrange for a free product demonstration or for pricing information Canada Law Book is a Division of The Cartwright Group Ltd. www.lawtimesnews.com LT0809 apprehension rates by aborig- inal-run agencies have often been higher than those of pro- vincial bodies. But while that casts a shadow on the whole no- tion of having separate laws and agencies, Morse argues the issue comes down to a lack of fund- ing for aboriginal services by the federal government. Nevertheless, Madahbee re- mains determined to carry out the Anishinabek project. Noting provincial agencies tend to iden- tify aboriginal children in care as "client number so-and-so," he's vowing to change the system. LT

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