An Act respecting First Nations, Inuit and Métis children, youth and families (Federal Act) and the Declaration on the Rights of Indigenous Peoples Act (Declaration Act) helped usher in rapid change in the application of Indigenous legal traditions and decision-making processes found increasingly embedded in child and family legislation. These laws furthered Indigenous legal mechanisms as a means to legal remedies for Indigenous children, requiring collective responsibility to re-examine child welfare legal services to uphold Indigenous self-determination. As Nations develop their own Indigenous laws that will intersect with provincial authority and the courts, and in some cases, remove provincial authority altogether, the legal field finds more cases that intersect with Indigenous laws and ways of knowing. Reviewing key worldview shifts can aid in navigating these merging worldviews.
Indigenous child and family laws as written legislation are a novel structure. According to Matriarchs and Elders, the laws of Indigenous people about children and families are held up by oral narratives, protocols and governance structures based on perspectives of a child’s holistic wellness, not exclusively of their safety in the contemporary context.
By example, the structure and decision-making processes of the Carrier and Sekani people of North Central British Columbia are in the Bah’lats system. According to internal documents by Carrier Sekani Family Services, the Bah’lats is the structure used to make decisions about children and families as a collective activity governed by protocol and oral laws to maintain the functioning of families and communities. Fundamentally, this differs from a focus on the child alone and emphasizes a focus on community continuity. For over 30 years, Carrier Sekani Family Services and the member communities have worked to find the means to translate Carrier principles into written legislation. The mechanisms provided for in the Federal Act and the Declaration Act provide this opportunity.
Bringing Indigenous traditions into child and family legal processes compels a shift of perspectives. This can be characterized by redefining understanding; value, and practice from an Indigenous legal perspective. Understanding can be defined as a deep recognition of the purpose of the Indigenous law and an awareness that Indigenous laws over children and families are more than a justice perspective governing the safe care of children. Understanding compels a different effort to the use and application of Indigenous child and family laws, it requires an effort of interpretive context of the Indigenous law’s purpose.
Value must be defined as more immersive than a guiding principle. For many Indigenous child and family laws, the best interest test is interpreted through the collective belonging of a child to a community through a family structure.
By example, according to the published Rights of Cowichan Citizens, for the Cowichan people, the value of the child is illustrated through the belief that “Family is the Heart of Life.” Children, Smunèem` are the heart of families. Redefining value in this context within a legal matter compels the weight of the family togetherness in the best interest test, a value required by the Federal Act. The Indigenous tradition of locating a child as an integral (heart) of the family and community system can be seen in many developing Indigenous child and family laws.
Finally, a redefinition of legal practice, including a shift to consider how to hear the voice participants (including children) involved is integral. Western law systems identify roles exclusive of each other; lawyer, parent, advocate, etc., without taking into consideration the Indigenous worldview incorporating the equal importance of each voice collectively in decision-making. Structurally, many Indigenous laws are being drafted with the equality of shared voice and collective decision-making. This consideration compels all members within the legal system to consider their roles from a non-hierarchical perspective and toward one of collective responsibility from their area of expertise.