Many Indigenous peoples are “parties” in the family system. There are an alarming number of cases involving child protection, and less between separated parties. State intervention in child protection cases is rooted in the historical grievances and cycles of harm, grief, and suffering. There are similar factors in the civil context of family law that is so foreign in its values, beliefs, and approach. It is actually quite alarming.

The disparity between Indigenous cultures, beliefs, and values is in complete contrast to the family law system. Some communities survived the onslaught of government assimilation and are well rooted in culture and tradition. There are others that still look to find or revive their identity. These communities that I speak of are “reserve” communities. Of the reserve communities, there is a big distinction to the “western” push of individualism: the concept and closeness of family in everyday life.

Family is a broad net reinforced by a constant residency of family in one location, as opposed to an individualistic approach. Indigenous ways focus on the collective and inclusiveness of people. Identification and definition of relations are important. For example, grandparents can be great uncles and aunties, and cousins can be sisters and brothers.

Way of life is also a sharp contrast to westernized life. Culture and traditions are woven into daily life. A significant amount of Indigenous peoples rely on their surroundings for food and sustenance. Hunting, fishing, and gathering food from the surroundings is an integral part of Indigenous communities. These are not just for food, but play an important part of the culture, connection to our surroundings, and ceremony.

These are just a few examples, but these highlight the contrast and experience that Indigenous peoples may have in the family law context.

The misunderstanding and misperceptions of Indigenous peoples leads them to avoid the system, or worse, experience an alienating process. There appears to be limited knowledge of, or experience with, Indigenous peoples, their communities, or way of life. This is particularly important when coming together in any context in the family law system. For example, in a Family Case Conference, Judicial Case Conference, mediation, or a contested application before the court where the child’s best interests are being decided. The lack of knowledge on the part of lawyers and judges of the people they are serving increases the chances of negative outcomes and experiences. First and worst is the application of personal experiences and views on Indigenous parties that are quite foreign and sometimes offensive, however well intentioned. This is usually driven by the adversarial approach and lack of knowledge. What may be appropriate in one’s eyes, may be completely the opposite of the family involved or what is otherwise in the child’s best interests.

The question is what is the solution?

For those with Indigenous parties before them, one answer is knowledge. Knowledge is acquired through experience, awareness, and understanding. Every lawyer that represents a client must know who their client is in order to speak for them. Every judge that sits at a courthouse that sees Indigenous peoples appear before them on a regular basis must experience the community around them. This means effort and openness; taking the time to be amongst the people and in the communities. Learning the ways of the people that they interact with in their professions. It also means adopting Indigenous ways into the fabric of how family law processes are established. An increase of Indigenous “policy” makers, lawyers, and judges is critical. More importantly, Indigenous communities need to implement their own processes to address the needs of families in their own communities. A respectful relationship and reciprocity of knowledge between Indigenous communities and those involved in the family law system will not just benefit Indigenous peoples, but everyone in our society.