Perhaps one of the most ignored Indigenous and Human Rights issue
facing Aboriginal communities and individuals is the lack of recognition for
something we as Indigenous peoples have always practised and that has served
our communities well in protecting our children; Traditional Customary Adoption. There are researchers like the Canada Research Chair Dr Ghislain Otis who is attempting to address this issue. Dr
Otis (University of Ottawa) has written a new book L’adopition coutumiere autochtone et les defis du pluralism juridique about
Aboriginal Customary Adoption within a pluralistic legal framework within
Canada and more specifically Quebec. In the interview that I conducted with Dr Ghislain Otis (see below) there are two basic reasons why Dr Otis decided to edit and author this book:
1)
There is a fundamental
trend in international legal research concerning the need for better
recognition of Indigenous legal traditions around the world and in Canada.
There has been an increase in demands of Indigenous peoples for this recognition
as we can see with the international protest movements like Idle No More. There
also seems to be a general agreement by many that we must challenge these old
colonial systems currently used by many nation-states.
2)
Indigenous peoples had
their own legal system that were sophisticated and well adapted to their own
needs and circumstances. These systems have survived despite the attempts to
eradicate them or the continued indifference by nation states. This
indifference has manifested itself by the non-recognition by nation states that
these Indigenous legal systems do exist. Nation states like Canada have responsibilities
for Indigenous peoples and to protect their Human Rights. These
responsibilities must be acknowledged and supported by state apparatus; and if
you acknowledge these systems you must be have a better understanding and
research this area of prime importance. Dr Otis asks “How can you have these
systems work together?”
Customary adoption is an ancient form of adoption that has evolved and
changed over time. It is a practice by which biological parents give their
children to another set of adoptive parents. There is a wide variety between
Indigenous legal systems in the matter of customary adoption. Some will create
a complete break between the parents and child; other systems will maintain
some form of relationship between parents and child. There are many variations
between. According to the research of Dr Otis these are legal systems that
create rights and obligations for Indigenous peoples and all Canadians.
Currently only the Northern
territories have statues
which recognize Indigenous customary adoption and only one province. British Columbia’s
law though is ambivalent, because it leaves it to judges to decide if customary
adoption meets the definition of what Aboriginal customary adoption is. This is
a problem because this interferes with Indigenous law and legal systems
making customary adoption the same as western adoption. This leads to the
assimilation of the traditional forms of adoption and the Indigenous legal
system into the Canadian state adoptive apparatus.
The Province of Quebec is presently debating customary adoption in the Quebec National
Assembly. They have had a heated debate about customary adoption for the past 5
years. Currently there is a wide consensus towards the recognition of customary
adoption. A working group was created with representatives from political
parties, the government and First Nations. On April 16, 2012
they produced a report entitled Report of the Working Group on Customary Adoption in Aboriginal communities. A Bill has also been tabled that would recognize customary adoption in the
civil code. This is a major change in constitutional law because it would not
only recognize the two current forms of legal systems like common law and civil
law, but it lays the beginning in Canada of recognition for Indigenous law as a
separate but integrated legal system.
There is a great need for customary adoption within Aboriginal
communities because children have multiple issues related to lack of parental
right for the adoptive parents. There are issues related to this both individually
and collectively. Individually because a child’s fundamental rights are not
being protected; what is in the best interest of the child to stable and loving
relationships. Should the child exist moved about between foster families and
used as a pawn between two different legal systems? These customary adoptions
are simply not easily recognized by the western legal system even thought they
are still practised very frequently by many Indigenous peoples in Canada.
The Inuit in northern Quebec are a prime example of Indigenous peoples who
still practice customary adoption. Other issues which affect the individual are
the possibilities where the biological parents may return and demand before a
court and judge the return of a child or children. Because this Indigenous
legal system is not recognized, the judge could return the child. When adoptive
parents try using the Canadian state to obtain services to which they are
entitled for their child, they often experience grave administrative
difficulties. Other practical issues include trying to sign the child up for
school; questions about legal authority; questions about child allowances which
cannot be paid to the adoptive parents; situations of if the child dies or the
adoptive parents dies who receives death benefits and inheritance. Since the
parental connection is not legally established the rights of the child and
parent are ignored and go unprotected. Collectively the non-recognition forces
this form of traditional practice onto the margins and oppresses its
continuation because it becomes too difficult to practice. Essentially the
practice becomes extinct and dies out.
There are a number of positive points to the proposed law in Quebec
because it allows Aboriginal communities to create their own formal system
about how to regulate customary adoption. The decisions are left with the
Indigenous community and their authority. The law will not define the affects
of an adoption, but will require the Authority to define the affects like
alimonies or support. It makes it easier to obtain approval and reduces many of
the legal costs associated with lawyers and courts that are often incurred when
navigating between both systems.
The less attractive element is that provincial child welfare agencies are
mandated to be involved. The child welfare agency must approve these adoptions
when a child has been involved with the Child and Family Services system. This
allows a government agency to interfere with the Indigenous legal systems. They
might interfere even though they have little understanding of this system. Dr Otis
has a concern that even though it might be in the best interest and welfare of
the child some children may be prevented from being adopted.
Dr Otis also discussed the constitutional effect customary adoption may
have. Because Indigenous legal questions are a federal responsibility then technically
provinces would have little ability to extensively regulate customary adoption
apart from minor recognition and procedures. It could force province to
recognize aboriginal rights and would constrain provinces on how far they may
regulate traditional Aboriginal practices.
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