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IN WHOSE BEST INTEREST?

THE CONVENTION ON THE RIGHTS OF THE CHILD
AND FIRST NATIONS CHILDREN
by
Carol Buenafe
B.A., University of Toronto, 1985

A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF
THE REQUIREMENTS FOR THE DEGREE
OF MASTER OF ARTS
in
INTERNATIONAL STUDIES

Carol Buenafe, 1996

THE UNIVERSITY OF NORTHERN BRITISH COLUMBIA

May 1996

1 * 1

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0-612-62466-8

CanadS

APPROVAL

Name :

Carol Buenafe

Degree:

Master of Arts in International Studies

Thesis Title:

IN WHOSE BEST INTEREST?
THE CONVENTION ON THE RIGHTS OF THE CHILD
AND FIRST NATIONS CHILDREN

Examining Committee:

Chair
Dr. William Morrison
Dean, Graduate Studies

Supervisor
Dr. Lawrence T. Woods
Studies

MemtgB?4nfFernal to Programme
TJrTjo-Anne Fiske
Women's Studies

Member and ^ t e m a l Examiner
Dr. Douglas Nord
Dean, Management & Administration

Date Approved:

11

ABSTRACT

This thesis examines the Convention on the Rights of the Child
(the Convention) and its application to First Nations children.
Specifically, it will address the issue of whether or not it is an
appropriate and effective instrument with which to protect and
promote the rights of First Nations children.
The situation of First Nations children in Canada will be
examined in advance of a critique of the Convention to convey the
need for the protection of First Nations children.
the

state

and

society,

can

First

Nations

Undermined by

children

rely

on

international legal recourse to secure a healthy and harmonious
environment in which to grow?
To determine the answer,
origins,

this analysis will examine the

the universality and the plurality of legal codes in

international law.

An éinalysis of these three dimensions suggests

a rigidity in international law and the Convention with respect to
whose rights it promotes and protects.

I will examine the Sandra

Lovelace Case to determine the practical implications of the
Convention on First Nations children.

The conclusion suggests that

the "best interest of the child" is predetermined by underlying
legal assumptions.

iii

TABLE OF CONTENTS

Ease
Approval

11

Abstract

111

IV

Table of Contents
List of Tables
Note on Terminology

VI

Acknowledgement

Vll

Chapter One

Introduction

1

Chapter Two

The Historical Context

11

First Nations Children
Convention on the Rights
of the Child
Chapter Thi._

International Human Rights Law

36

Origins
Universality v. Relativity
Legal Pluralism
Sandra Lovelace Case
Chapter Four

In whose best interest?

63

Chapter Five

Conclusion

79
85

Bibliography

IV

LIST OF TABLES

Table

Page

I

Infant Mortality Rates
1986-1990 (per 1,000 live births)

13

II

Infant Death Rates for Selected Causes
1989-1991 (per 1,000 live births)

14

III

Suicide Death Rates 10-19 years
1986-1990 (per 100,000)

15

IV

Death Rates 1984-1987/88 (per 100,000)

15

V

Labour Force Participation, 1991 (percent)

18

VI

Income, 1991 (percent)

18

NOTE ON TERMINOLOGY

While the term First Nations generally refers to Status
(registered) Indians, I have chosen to use it to refer to the
original peoples of Canada, Indian (Status/non-Status), Inuit and
Metis. While the specific case of the Inuit and Metis has not been
studied for this discussion, in including them I acknowledge the
common experiences of all First peoples with respect to their
subjugation by the government and society.
The
terms
Aboriginals,
Indians,
Natives
are
used
interchangeably depending on the works to which they refer, or to
the time period in which they were popularly identified as such.
The term Indigenous is commonly used globally and I have used this
terra when referring to the international arena.
I also acknowledge that these various terms are contested both
by the First Nations communities and Canadian society at large.

VI

ACKNOWLEDGEMENT

I extend my profound thanks to all those who helped fulfil a
dream:
To Dr. Larry Woods for gentle encouragement, constant support
and guidance above and beyond his responsibilities as thesis
supervisor;
To Dr. Jo-Anne Fiske for her ability and willingness to share,
and for blurring the distinction between teacher and student;
To Lois Crowell for her computer expertise and assistance in
the "eleventh hour" revision of this manuscript ;
To my friends and colleagues at UNBC who affirmed that grad
school means so much more than reading and writing scholarly work;
To my family who, aside from the requisite familial support,
provided periodic "subsistence loans" with rates of repayment
unheard of, ever;
To my friends in Toronto and Vancouver, especially Natasha
Balce, the funniest person in two languages (English and Filipino);
and Ian Thwaites, who reminded me of the importance of living with
faith and integrity.
I am indebted to all of you.
This work, as all my life's work, is dedicated to the memory
of my mother, Cleofas Calma Buenafe (1917-1990) .
vii

Chapter One
INTRODUCTION

According to the United Nations Children's Fund's (UNICEF)
I

I state of the World's Children (1993), 40,000 children^ die each day

i and millions more live in poverty, disease and especially difficult
circumstances.

Some children are more vulnerable than others to

circumstances which deprive them of a healthy childhood.

In

Canada, this is particularly true of the First Nations communities.
Six percent of Canada's children - approximately 350,000 - are
First Nations children.%

Despite Canada's high socio-economic

I standing among industrialized countries and the liberal democratic
I system espoused by Canadians, First Nations children continue to
1

j remain, as they have for centuries, at the bottom of western

I
j hierarchy in all aspects of society.
I
Juxtaposed with the plight of First Nations children is a
global portrait of concerned citizens at the World Summit for

^under united Nations terminology, children are those 18 years of age and
under.
^Denise Avard and Louise Hanvey, eds. The Health of Canada s children: A
CICH Profile. 2d ed. (Ottawa: Canadian Institute of Child Health, 1994), 133.

2

Children held in 1989, hosted by then Prime Minister Briem Mulroney
of Canada and President Moussa Traoré of Mali.

It was the largest

j summit in the history of the United Nations (UN) to that point.
' Over 70 heads of state gathered formally to embody the rights of

i children

in

international

law.

The

resultant

United Nations

I Convention on the Rights of the Child (hereafter referred to as the
Convention)

was adopted by the UN General Assembly in 1989,

I enforced as international law in 1990 and ratified by the Canadian
^ government in December 1991.
I
I

The

international

community,

through

the

Convention,

acknowledges the vulnerability of children and the importance of
protecting and promoting the welfare of children.
ratifying

the

Convention,

agreed

to a mutual

Canada,

in

commitment

of

countries to meet specific standards for the treatment of children
within

their

own borders."

Given the

expectation

that

the

international human rights regime is in place to protect individual
human rights,

this thesis will explore,

from a First Nations

perspective,^ the notion that the Convention is an instrument to be

'Canadian UNICEF Committee. The Convention on Children's Rights; A summary
(Toronto: Canadian UNICEF Committee, 1995), (pamphlet) inside pemel.
*In this analysis, I do not purport to speak for First Nations children.
Rather, I will examine the Convention from the standpoint of the historical and
material oppression of the First peoples of Canada by the government and society.

3

used to protect and promote the rights of children.
to address the question:

It will seek

Is the Convention an appropriate and

I effective instrument with which to protect and promote the rights
I
! of First Nations children?
At first glance,

the Convention represents a commendable

effort by nation-states to redress the imbalances and injustices
against children;

this is especially crucial because children

cannot speak for themselves.

However, despite the proliferation of

international human rights treaties, there is a vast discrepancy
! between

international

human

rights

theory

and

practice,

as

I evidenced by human rights abuses in all comers of the world.
I

Legal discourse, particularly the conferring of rights, is

i empowering to many. But whom does it empower? Does the Convention
empower First Nations children and create an area of dignity, a
space they so greatly need?
Legal discourse is exceptional in the sense that, unlike other
social and political discourses which allow for various sites of
authority, in law there is only one site: on the side of the law.
Individuals and collectives, organizations and governments are
expected to stay within the law. However, staying within the law
has often had deleterious effects on the most vulnerable groups in
society, and particularly First Nations children.

In Canada, access to the courts by First Nations communities,
as in Delgamuukw v. the Queen (aboriginal rights), Attorney-General
of Canada v. Lavell and Isaac et. al. v. Bedard (sexual equality) ,
and Racine v. Woods (child adoption), has illustrated competing
discourses. However, the more important issue is the power of the
dominant

legal

discourse

to

define

and

prescribe

identity.

Subsequently, the social, economic and political requirements of
such an identity are determined by legal discourse.
In Delaamuukw v. the Queen. Justice McEachem of the Supreme
Court

of

British

Columbia

ruled

that

First

Nations

had

no

aboriginal rights by discounting the identity of the Gitksan
Westsuwet'en,

as presented by them through oral histories and

traditions and ethnographies.

In Attorney-General of Canada v.

Lavell and Isaac et al. v. Bedard, sexual discrimination in the
Indian Act (1951) was elided by a judgment that the Indian Act
superceded the Canadian Bill of Human Rights.

In Racine vs. Woods

(1983), Justice Wilson stated:
It has nothing to do with race, absolutely
nothing to do with ethnic background. It's
two women eind a little girl and one of them
doesn't know her. It's as simple as that;
all the rest of it is extra and of no consequence ...®

SRacine v. Woods, [1983] 1 D.L.R. (4th) 193 (S.C.C.) , as quoted in Samuel
Bull, "The Special Case of the Native Child," The Advocate 47, 4 (1989), 526.

5

Similarly, access to the international legal system has been
frustrating, if not futile, for First Nations.

In Ominayak. the

Lubicon

oil

Cree

challenged

the

encroachment

of

exploration

companies in Northern Alberta. In the Mikmaq. Mikmaq communities
requested

a

separate

seat

in

the Ministers'

Conferences

on

Aboriginal Constitutional Matters.® In both cases,

these First

Nations groups

through an

Optional

attempted to exercise their right

Protocol? and

invoked

Article

1

(right

of

self-

determination) of the International Covenant on Civil and Political
RightsJ

In the former, the ruling stated that the oil exploration

companies were impacting on the cultural survival of the Lubicon
Cree, not on their rights of self-determination.®

In the latter.

Aboriginal participation in the Conferences were left up to the
Canadian government.

In both cases, the Commission stated that the

right of indigenous peoples to self-determination "was not within

‘Douglas Sanders, excerpt from "Developing a Modem International Law on
the Rights of Indigenous Peoples, a report for the Royal Commission on Aboriginal
Peoples, December, 1994," in Smders, "International Human Rights Law, Spring
1996," [Course Material] Faculty of Law, University of British Columbia,
Vancouver, A-B-5.
^An Optional Protocol allows individuals to take cases to the International
Human Rights Committee for adjudication, after the exhaustion of reasonable
domestic remedies, in Sanders, A-B-3.
‘Ratified by Canada in 1976.
‘Sanders, A-B-5.

i

6

I the competence of the Humêui Rights Committee to express views on

i

I the s u b j e c t . A s

Douglas Sanders observed,

the results were

j

inconclusive and the Committee failed to appreciate the complexity

I

of the situation.

As a result,

j

I

the lengthy "views" of the Committee
recount the positions of the two sides,
without concrete conclusions, except for
suggesting that the cultural life of the
Lubicon Cree has been endangered.
It would seem that what is true within the boundaries of the

I

state is also true in the international arena with respect to legal

I

discourse.

This then leads us to the

Convention,

question,

does the reification of the

nation-state as "parens

and to the

I

patriae," as protector and promotor of the rights of the child
through a 'binding' treaty such as the Convention, safeguard the
rights of a First Nations child to a secure and healthy childhood?
In seeking answers,

I will contextualize the aim of this

analysis by demonstrating the urgency of the situation of First
Nations children and the need for their care and protection.
1989,

In

Patricia Monture observed that "the situation of First

Nations

children

“Séuiders, A-B-5.
"Sanders, A-B-6.

was

cited

as

the

single

greatest problem

7

confronting the child welfare system in Canada in the 1 9 8 0 s . T o
this end, chapter two will comprise of a compilation of statistics
pertaining to First Nations children which demonstrate their
abysmal status in Canadian society.

The plight of First Nations

children will also be discussed in its historical context, situated
as it is within the colonial history of First Nations in Canada.
Further, a discussion on the Convention, its provisions and general
principles is necessary to illustrate the comprehensive standard to
which all children are entitled.

A brief summary of the history

and the content of the Convention will be discussed with specific
reference to Articles pertaining to indigenous peoples.
In

chapter

three

I will

focus

on

an

analysis

of

the

international human rights discourse, beginning with the premise
stated by Peter Goodrich:
As a totality of discourses and practices,
the legal institution continuously strives
to present the legal code as the symbolic
representation of an ideal sociality, as a
way of life and as the fundamental morality
of belonging to the social whole.“

^^Patricia Monture, "A Vicious Circle: Child Welfare ouad the First
Nations," Canadian Journal of Welfare Laws 3, 1 (1989): 8.
-Pecer Goodrich, Reading the Law: A Critical Introduction to Legal Method
and Technique (Oxford: Basil Blackwell, Ltd., 1986), 217-218.

8

To appreciate Goodrich's argument, it is necessary to examine
the source of the international human rights discourse.
that

the

origins

of

international

law,

I suggest

its construction

of

universality and legal pluralism frame the discourse ; that is, they
define whose rights are protected and promoted.
human

rights

law

spoken

in

the

manner

of

International

western

liberal

jurisprudence, establishes strict parameters and elicits competing
discourses, often to the detriment of those in need of protection.
As Zygmunt Bauman argues, "one thing that liberalism cannot cater
for is precisely the matter of justice, social justice."
To substantiate this argument,
Lovelace Case. a

I will examine the Sandra

case that was instrumental in the government's

amendment of the Indian Act in 1985.

However, the International

Human Rights Commission's decision that Canada was in breach of
Lovelace's right to belong to an ethnic minority, rather than sex
discrimination in the Indian Act (a violation of the 1948 Universal
Declaration of Human Rights), is testimony to the fact that
international human rights laws can deny one's birthright to
equality despite the system's objective otherwise.

Lovelace, who

“ Sandra Lovelace, a Haliseet from Tobique Reserve, New Brunswick, filed
an application with the International Human Rights Commission in 1977, claiming
that loss of Status as a result of marriage to a non-Indian under the Indian Act
was discriminatory.

9

resides furthest from the halls of power as an indigenous person
and a woman, was denied her birthright of equality which the
international human rights system claims to protect universally.
Chapter four will critique the Convention, identifying issues
directly pertinent to First Nations children and using the Lovelace
case to conceptualize what the Convention means to First Nations
children.

Are the rights embodied in the Convention inalienable to

First Nations children?

Cynthia Price Cohen observes that "the

linguistic interpretation of the Committee on the Rights of the
Child is integral to its emerging jurisprudence."^®

This section

therefore will examine the practical implications of the Convention
on First Nations children.
Arthur

Dyck argues that

"human rights can and must be

reconceptualized in a way that clarifies, rather than obscures, how
we come to know and actualize them."

This study is an attempt to

conceptualize the meaning of rights of those who cannot speak for
themselves, and of those who remain in the margins of the dominant
social order.

It is important to challenge the Convention - "to

ask it new questions cuid hold it up to new contexts" - in order to

'^Cynthia Price Cohen, "Rights of the Child," St. Thomas Law Review S, 1
(1993), 5.
'^Arthur J . Dyck, Rethinking Rights and Responsibilities: The Moral Bonds
of Community (Ohio: Pilgrim Press, 1994), 11.

10

reconstitute

symbolic

meanings

of

rights,

of

children,

of

ethnicity, in the most positive and harmonious way, to ensure a
healthy future for First Nations children for seven generations.

11

Chapter Two
The Historical Context

The purpose of this chapter is two-fold.

First,

I will

demonstrate the need for care and protection of First Nations
children by examining their status in Canadian society, and by
providing an explanation of their status within the historical
context of First Nations/non-First Nations relations.

Second, I

will examine the Convention, an instrument for the protection of
children from neglect and abuse.

Its origins, guiding principles

and specific references to indigenous peoples.

These objectives

provide necessary information in advance of a critique and make it
possible to appreciate fully the issues that limit the Convention
from protecting and promoting the rights of First Nations children.

First Mations Children

According to the 1991 census, there are 1.1 million self­
identified First Nations^'' peoples in Canada, of whom 361,670 are

''Status, Non-Status, Metis and Inuit.

12

children below fifteen years of age.
total First Nations population.

This represents 37% of the

Non-First Nations children under

15 years comprise 21% of the total non-First Nations population.
First Nations children comprise 6.4% of all children in Canada.
The birth rate for Indian and Inuit women is twice that of the
overall non-First Nations female population.

Five percent of the

First Nations population is 55 years and older, as compared to 21%
of the Canadian population, figures which support the observation
that "while the bulk of the Canadian population is aging into
retirement years, the majority of the Aboriginal population is
aging into reproductive y e a r s . W h i l e the birth of children is
the regeneration of nations,

it is important to examine the

environment to which they are born and the future that they hold.
First Nations children are the most disadvantaged children in
Canada.
•

Consider the evidence:

Canada's infant mortality rate (IMR), a popular indicator used
to assess a country's developmental progress, is one of the
lowest among industrialized countries : an average rate of 7.3
per thousand live births from 1986-1990.

The IMR for Status

Indian babies during the same years, however, was appallingly

"All statistics in this paragraph from Avard and Hanvey, eds. The Health
of Canada's Children. 131-135.

13

high, almost twice the total Canadian rate and similar to the
Canadian rate of the 1960s.

The rate was even higher for

Inuit babies, as shown in Table I.

Post neonatal (28 days to

1 year) deaths from 1984-1988 were more than three times
higher for Status Indians.-® In 1985, G. Rowe and M. J. Norris
projected that the 1996 IMR of Status Indians corresponds with
the 1971 non-First Nations level, a lag of 25 years.
Table I: Infant Mortality Rates, 1986-1990
per thousand live births

0-12 months

1-12 months

< 1 month

STATUS

13.8

7.9

6.0

INUIT

16.3

11.2

8.4

CANADIAN

7.3

2.5

4.7

[Source: Avard and Hanvey, The Health of Canada’s Children. 141.]

• Examining the causes of death, from 1989-1991 more Status Indian
children died than other Canadians from the six most common
causes of death listed in Table II.

Out of six causes of death,

only one category registered the same number of deaths. Sudden
Death Infant syndrome was the leading cause of death of Indian
babies,

a rate three times greater than the Canadian rate.

^llen Bobet, inequalities in Health: A Comparison of Indian and Canadian
Mortality Trends (Ottawa: Health & Welfare Cémada, 1990), n.p.
"G. Rowe and M. J. Norris, Mortality Projection of Registered Indians 1982
to 1996 (Ottawa: StatsCan, 1985), 37.

14

Table II also shows that the injury death rate for First Nations
infamts was almost four times that of Canadian infants.
Table II: Infant Death Rates for Selected Causes, 1989-1991
per thousand live births

STATUS

CDN

Birth Defects

2.8

2.2

Sudden Infant Death

2.4

0.8

Asphyxia, anoxia,
hypoxia

1.2

1.2

Prematurity, Low
birth weight

0.9

0.4

Injury

0.8

0.2

Pneumonia,
Bronchitis

0.7

0.3

Cause

[Source: Avard and Hêuivey, 142.]

• In

1990,

Statistics

Canada

reported

am

overall

Canadian

disability rate of 5.2% among children under five years of age.
A study of two Cree/Ojibwa communities in Northwestern Ontario
found 12.1% were disaüsled.^^

^^Christopher Bagley, "Adoption of Native Children in Canada" in H. Alstein
i R. Simon, eds. Intercountry Adoptions (New York: Praeger, 1991), 57. Because
the total First Nations children disability rate is unavailable, I have included
this figure to show that the rate is probably higher than the Canadian rate. The
lack of comprehensive data on First Nations children is indicative of their
status in society.
In mainstream publications on issues such as Canadian
children's health rights and risks, I find that First Nations children are
relegated to a very minimal amount of text, despite the considerable evidence of
their neglect.

15

• From

1989-1991,

the average

injury death rate

for

Indian

teenagers was more than three times greater than the Canadian
rate.
• The adolescent suicide rate of First Nations was five times
greater

than

the

rate

for

for the

rest

of

the

Canadian

population (see Table III).
• Table IV shows an equally disturbing comparison of death rates
between the First Nations and non-First Nations populations.
Table III: Suicide Death Rates 10-19 years, 1986-1990
per 100,000

TOTAL

MALE

FEMALE

Status

37

54

19

Canadian

7

12

2

[Source: Avard and Héuivey, 144.]

Table IV: Death Rates, 1984-1987/88 per 100,000

Age Group

Canadian

Indian

1-14

29

85

15 - 24

81

284

All ages

661

953

[Source: Ellen Bobet, Inequalities in Health: A comparison of Indian and
Canadian Mortality Trends (Ottawa: Health & Welfare Canada, 1990} n.p.]

:^Avard and Hanvey, The Health of Canada's Children. 143.

16

^

With respect

to socio-economic indicators,

First Nations

children are born into an environment that is less likely to meet
their needs and ensure their healthy development than it is in the
case of non-First Nations children.

Consider the following points:

• While the child poverty rate of First Nations is unavailable, "a
very high proportion of Aboriginal people live below the poverty
line .,. many Aboriginal children in Canada experience living
conditions similar to those in Third World countries.
I • Most

j

First Nations children live in inadequate and crowded

dwellings.

Only 2% of Canadians are likely to live in crowded

dwellings,

compared to 11% of Indians off reserve,

29% of

i
I

Indians on reserve and 31% of Inuit.

Similarly, 6% of non-First

Nations live in dwellings without central heating, compared to
9% of Indians off reserve, 37% of Indians on reserve and 17% of
Inuit.
• In 1991-92, 4% of children on reserve were 'in-care'; that is,
they were designated wards of the state.

While this figure has

been reduced from 5.4% in 1981, it is important to note that
this figure represents only on-reserve Status children and

"Avard and Hanvey, 140.
“Avard and Hanvey, 137.

17

excludes Status and non-Status children off-reserve, as well as
Metis and Inuit children.

Tenyears ago, 20% ofall children in

substitute care were from

theFirst Nations community. At that

time,

this

population.

community

accounted

for only 6% of

Canada's

Today, only 0.8% of non-First Nations children are

in-care.^
• First Nations people age 15 to 49 have lower levels of education
than other Canadians.

Although the educational level of First

Nations has improved in recent years, it is still lower than the
overall Canadian level.

In1991,

17% of 15 to 49

year-old

Aboriginal people had less than 9 years of schooling, while 33%
had some post secondaryeducatior

for the

total

Canadian

population, the figures are 5% and 51% respectively.^®
• In 1991, First Nations people were less likely to be in the
labour force, have lower income and more likely to be welfaredependent than the rest of the Canadian population, as shown in
Tables V and VI. The income distribution shown in Table VI
provides evidence of the poverty of First Nations communities.

^^Community Panel, Family and Children's Services Legislation Review in
B.C. Aboriginal Committee, Liberating Our Children: Liberating Our Nations.
(Victoria: Ministry of Social Services, 1992), 1.
^"Statistics Canada, Schooling. Work and Related Activities. Income.
Expansés and Mobility. 1991 Aboriginal Peonies Survey (Ottawa: Ministry' of
Industries, Science «md Technology, 1993), xi.

18
Table V: Labour Pource Participation, 1991 (percent)

All Aboriginals

All Canadians

Employed

57

68

Unemployment rate

25

10

Table VI: Income, 1991 (percent)

Aboriginals

Total Canadian

No Income

13

9

< $2,000

12

6

$2,000-$9,999

29

20

$10,000-$19,999

23

22

$20,000-$39,999

18

28

> $40,000

5

15

[Source: Statistics Canada, Work and Related Activities, xiv-xv ]

Aggregate

statistics can provide glowing reports on the

overall status of all Canadians.

For example, the United Nations

Development Programme's Human Development Report 1995 ranks Canada
as

the best place

in which to live according to the human

development index.UNICEF's annual report State of the World's
Children consistently posts enviable statistics describing Canadian

^united Nations Development Programme. Human Development Report 1995. (New
York: Oxford Press, 1995), 18.
The human development index (HDD is a
calculation used to rank the developmental progress of nations. According to
UNDP, the HDI tcüces into consideration situations wherein people lead long and
healthy lives, are able to acquire knowledge and have access to the resources
I needed for a decent standard of living.

19

children.

However, the deplorable status of First Nations children

is poorly represented by this type of assessment.

Separate

statistics for First Nations emphasize not only the disparities in
Canadian society,

but the depth and magnitude of the disparities.

These statistics

expose inequities that are so great that

cannot help but ask why. A
Nations children

discussion on

the

status

of

cannot be separate from a discussion on

one
First
the

colonial history of the First Nations peoples. Consistent with the
theory of internal colonialism,^® the subjugation of First Nations
peoples by the domination of the state and white society begêui with
first contact with the white man. The European immigrant society's
assumption of superiority in all aspects - social,

cultural,

economic, political, religious and ethnic - developed into a statesanctioned and society-condoned oppression of First Nations people.
With the gradual usurping of their land, the erosion of their
traditional livelihoods and the imposition of European values,
beliefs and institutions. First Nations peoples have been reduced

^'Colonialism: creating a sense of dependence among a nation or group, the
objective of which includes the extraction of benefits by the dominant nation or
group; as defined in M.O. Sinclair «md K. Bala, "Aboriginal Child Welfare in
Canada" in W. Bala, et. al., eds., Canadian Child Welfare Law; Children. Families
and the State (Toronto : Thon^son Educational Publishing, 1991), 130.
It is
generally accepted that internal colonialism refers specifically to the
domination of indigenous peoples by a state created and governed by the foreign
majority.

20

to the we Ifare-dependent society that they are today.

As Evelyn

Kallen explains in Ethnicity and Human Rights in Canada.
Aboriginal population (Indians, Inuit and Metis),
whose bicultural characteristics diverged most
markedly from those of the dominant ethnic
categories, were found at the bottom of Canada's
ethnic hierarchy ... they constituted a racially
stigmatized and structurally dependent ethnoclass
having the lowest status of all minorities.”
The most blatant instrument of oppression was and continues to
be the Indian Act.”

In the government's méuiipulative language, the

Act was intended to "protect" the uncivilized; in practice, it was
a policy for assimilation intended to usurp their self-governing
and self-determining powers,

their land and livelihood,

societal and cultural traditions.

their

Through this discriminatory act,

the government legislated a separate identity for First Nations
people,

unequal to the rest of Canadian society,

European management of their land and peoples.

and imposed

Over time, original

peoples of this land became a minority, albeit a distinct one,
dominated by the immigrant society.
With the Indian Act (1876), the government formalized the
reserve system, which came to be regarded as a training ground in

^’Evelyn Kallen, Ethnicity and Human Rights in Canada (Toronto; Oxford
University Press, 1995), 123.
"Original Act was passed in 1S75; subsequent 'major' amendments in 1351
and 1985.

i

21

i

i

'civilization' where the Indian could be taught to live like a

I

j European with European values, and thus made capable of being
assimilated."^^

The government's ever present intervention was

aimed at "producing both the material and cultural conditions which
would

further

the

degree

of

conformity

with

anglo-European

s t a n d a r d s B r a d McKenzie and Peter Hudson describe this process
as a systematic devaluation of the norms, values and opinions of
the native groups - a process, they argue, that continues today:
The historical benefits of land, fur and
buffalo which accrued from the colonization
of native people are well known. Less
accepted is the fact that modem society
continues to benefit from the dependency
and under-development of native people ...
for example, resource extraction on native
land, native people as reserve labour and
as consumers of goods and services, including
social services.”
Because colonial relationships are systems of power, with the
dominant society wielding decision-making powers, the dominance and
misuse of power by the white society are clearly evident in the
treatment of First Nations children - the unwitting pawns of the

i

I

"Kallen, Ethnicity and Human Rights in Canada. 173.
"Terry Wotherspoon and Vic Satzewich, First Nations: Race.
Gender Relations {Scarborough: Nelson Ccmada, 1993), 84.

Class

and

"Brad McKenzie and Peter Hudson, "Native Children, Child Welfare «md the
I Colonization of Native People," in Kenneth L. Levitt and BricUiWharf, eds., The
I Challenge of Child Welfare (Vancouver: OBC Press, 1985), 130.

iI

22

government's game of assimilation and subsequent integration.
Intrusive Eurocentric regulation of childhood and family life among
First Nations, jurisdictional disputes^^ between the federal and
provincial government regarding child service delivery and the
blatant racism in policies, practices and child care workers, had
deleterious effects to their children and their culture.

It is now

widely accepted that Canadian child welfare practices have been,
and continue

to be,

a major factor in the deterioration of

aboriginal cultures in Canada.

Critics of native child welfare

practices then and now conclude that these policies and practices
towards First Nations children reflect a pattern of extension of
colonial control.^
Assimilationist policies such as residential schooling,” the

“First Nations are effectively "wards of the federal state" by virtue of
the Indian Act and its encumbent social-political-economic entitlement. However,
jurisdictional disputes have always been problematic. In the Indian Act (1951),
Section 88 subjected First Nations to provincial legislation, however
indeterminate the legislation seems to be, as they apply to First Nations. For
instémce, in matters of health and education. First Nations continue to be
'objects' of jurisdictional disputes.
^^Sinclair and Bala, "Aboriginal Child Welfare in Canada," 171.
“Levitt and Wharf, eds. The Challenge of Child Welfare. 87.

I

^^Residential schools were first introduced in the 17th century. In the
late 19th century they evolved to industrial residence schools, and were part of
government practice until the late 1950s.
The last closure of residential
schools occurred in the 1970s.

23

practice of non-aboriginal adoption prevalent in the 1960s,and
the child apprehensions and foster care of the 1970s and 1980s
I served

to destroy the fabric of First Nations

society.

The

cumulative effect of government policies and practices resulted in
the most serious crisis in Canada's child welfare system.
Although First Nations were receptive to formal education and
!

! requested schools for their children,

I

the residential schools

created by the government and run by Christian missions were often
miles away from the reserve. These schools necessitated the removal
of children for up to 10-12 months of the year, in an environment
!

in which Indian lifeways were not permitted and the purpose of
which was to get the "Indian" out of the child.

The denial of

language, cultural heritage, traditional practices and beliefs was
"to separate our people from our culture and instill European
cultural value in u s . W o r s e , evidence of physical, emotional and
sexual abuse came to light only recently, with the legacy of
violence, alcoholism and abuse as a direct consequence. Devoid of
normal family relationships and a sense of belonging and identity,
Bagley explained that the residential schools "released" native

’“Familiarly known as the 60s scoop.
’“Community Panel, Liberating Our Children. 18.

24

people from these schools "demoralized, bewildered, and uprepared
for any but the most marginal existence.
With the decline in residential schools and the slow demise in
the 1970s,
government's

aboriginal adoption and foster care supplanted the
assimilation

strategy.

First

effectively became wards of the province.
alone,

Nations

children

In British Columbia

40% of children in non-aboriginal adoptive homes were

aboriginal children, despite the fact they represented only 4% of
the population.“

Between 1984-1994, this number had decreased to

30% while First Nations people represented approximately 5% of the
provincial population.Owing to the imposition of the dominant
society's standard of care and standard of living on First Nations
communities,

children were apprehended for short or long-term

foster care or 'adopted-out' at an alarming rate.

The government's

failure to accept the legitimacy of the life philosopy and childrearing practices of First Nations led to policies and practices in
child care and welfare delivery that were entirely prejudicial
against First Nations children.

^“Sinclair ouad Bala, "Aboriginal Child Welfare in Canada," 175.
^^Panel to Review Adoption Legislation in EC, Report to the Ministry of
Social Services (Victoria: Ministry of Social Services, 1994), 11.
*^Panel to Review Adoption Legislation in EC, 11.

25

The fostering of First Nations children by non-First Nations
peoples, concurrent government funding for the adoptive family and
the denial of the child's own culture had significant negative
impact

on

the

essence

of

family

life

within

First

Nations

communities, and more importantly, on the identity of First Nations
peoples.

Their children were treated like commodities.'*^

In the

case of the Spallumcheen Band in EC, 150 children were removed from
the community from 1960-1980.

Because the Band's population was

only 300, the removal of these children "had a dramatic effect upon
the community population and sense of future."

In most cases, the

effects were tragic, not only from the perspective of cultural
denial,

but also from the overwhelming evidence of physical,

emotional and sexual abuse by the adoptive family.**
The

state's policy,

using children as primary tools

of

assimilation, and the internalized discriminatory social codes in
Canadian society have ensured that the cycle of victimization
begins at birth and is passed on to succeeding generations.*®
First

Nations

child

bom

today

faces

cultural

A

conflict.

*^Cotnmunity Panel, Family and Children's Services Legislation Review in
B.C., Liberating Our Children. 19.
**Bagley, "InterCountry Adoption, " 187.
^^Wotherspoon «md Satzewich, eds. First Nations. 88.

26

jurisdictional disputes, a legislated identity, extreme poverty and
other socio-economic problems.

It is little wonder then that First

Nations children are more likely to die at birth,

are more

susceptible to disease, live in inadequate homes, have lower levels
of education and live below the poverty line.

They are more likely

i

I

to get in trouble with the law or be substance abusers.

As victims

i
I of abuse, they are likely to be abusers themselves.

They are less

j likely to function within their potential in an environment hostile
I

to their needs as children, and later as adults. Sadly as Satzewich
and Wotherspoon explain,
j

one of the devastating consequences of the social
conditions experienced by native peoples is that
very few of them have gone untouched by widespread
poverty and related social afflictions either in
their own experiences or through someone close
to them. At their worst, these problems have
created a certain inertia and hopelessness
among some segments of the indigenous population.'*®
A significant response of the First Nations peoples, which
resounded even louder during the 1970s and 1980s (and up to today) ,
in face of the legacy of the assimilationist policies encapsulates
the frustration of the First Nations communities:

**Wotherspoon and Satzewich, 103.

"Is the system

27

conditioning our young for lives in institutions and not in
society?
Monture argues that the "disregard of the Indigenous factor
within the Canadian child welfare system is merely a reflection of
the position of First Nations within Canadian society."*® Indicative
of life in the margins of society, Avard and Hanvey have reported
similarly abysmal statistics five years prior, commenting that.
It appears that little has changed. Aboriginal
peoples live in deprived circumstances, and
consequently, when combined with the implicit
and explicit racism of our society, they are
doubly oppressed.*®

That this historical reality has shaped the lives of First Nations
people is unquestionable.

But what is even clearer is that First

Nations children are in need of protection.
the past and oppression of today,

Because the legacy of

far too many First Nations

children are denied a healthy childhood.

In this case, it is

imperative that states are held accountable for their actions which
significantly affect those who cannot speak for themselves, and
more so, those whose voices are not permitted to be heard.

The

^''Sinclair émd Bala, "Aboriginal Child Welfare Laws," 172.
^'Monture, "A Vicious Circle," 7.
^^Avard and Hanvey, eds.. The Health of Canada's Children. 146.
emphasis.

Author's

28

reality of the lives of First Nations children raises the issue of
legal recourse with respect to their neglect and abuse by the
Canadian government and society.

The Conveation os the Rights of the Child

The Convention on the Rights of the Child became the most
rapidly ratified international human rights treaty in history. By
1993, 159 countries had ratified the Convention. Canada ratified it
in 1991.®°
The

Convention,

having

arisen

out

of

the

non-binding

Declaration on the Rights of the Child (1959) , became international
law after 10 years of deliberations.
the Polish Government in 1978.

It was initially proposed by

Increased human rights awareness

evoked by continuing atrocities and casualties of war and the
recognition of children as a "vulnerable group requiring special
care and attention" opened the discourse of children's rights in
the international arena.
culmination

of

The Convention ultimately represents the

fifty years

of

international

efforts

to

set

universal standards in human rights and encompasses the most

®°Ratification by the first twenty countries automatically enforces it as
international law. UNICEF Canada, "Children's Rights in Camada," [information
sheet].

29

detailed and comprehensive in the rights it recognizes of all humsui
rights instruments.^
Described as a Magna Carta for children, the Convention
codifies childrens' rights insofar as they are obligations among
signatory states.

It contains fifty-four articles detailing the

individual rights of any person under eighteen years of age to
develop her or his full potential, free from hunger and want,
neglect and abuse.
civil,

political,

It is a document of breadth, encompassing
economic,

social

and

cultural

rights,

and

acknowledges detrimental situations for children, including war and
incarceration.

Civil and political rights include the right to a

name, nationality and identity.
to

a

standard

development.

of

living

Economic rights include the right

adequate

for

physical

and

mental

Social rights ensure access to special services of

the "highest attainable standard". Cultural rights include issues
pertaining to information,
expression.

education,

leisure and freedom of

Among the international human rights instruments, the

Convention's approach is unique because of its inclusion of what
are traditionally known as first (civil and political) , second
(socio-economic and cultural)

and third generation

(right to

^^Philip Alston. "The Best Interests Principle: Towsurds a reconciliation
of culture cuid human rights," in Alston, ed.. The Best interests of the Child:
Reconciling Culture and Human Rights (Oxford: Clarendon Press, 1994), 2.

30

development, of indigenous peoples) rights.

More importcuitly, it

is the first human rights Convention to address all aspects of
human development.
The Preamble begins as all other international human rights
instrument begin, with the usual statement of accession to the
Universal Declaration of Human Rights
principles.

(1948)

and its general

It is critical to note that the importance of one's

culture is emphasized in the Preamble:
THE STATES PARTIES [sic] TO THE PRESENT CONVENTION,
... Taking due account of the importance of the
traditions and cultural values of each people
for the protection and harmonious development
of the child ... Have agreed ...
The first five articles provide an overall framework
under which the remaining articles are to be applied.”

These five

articles pertain to the definition of a child (Article 1), freedom
from discrimination (Article 2), the principle of "best interest of
the child"

(Article 3), state obligations

(Article 4) and the

Rights and Duties of parents and guardians (Article 5) .

These

articles and the ensuing provisions” are to ensure the full and

“Alston, 11.
^^Article 6 - survival and development; 7/8 - name, nationality and
identity; 9 - parental care; 10/11 - family reunification ; 12/13 - freedom of
expression; 14 - freedom of religion, thought, conscience; 15 - freedom of
association; 16 - privacy; 17 - freedom of information; 18 - parental care; 19 abuse; 20 - protection by the state when separated from families; 21 - adoption;

31

harmonious development of his and her personality, the growth in a
family

environment

in an atmosphere

of

happiness,

love

and

understanding.
However, Article 3, the "best interest" principle is the
"leading"

article of the Convention from which all decisions

affecting

children

are

to

emanate.

As

stated

in UNICEF^*

publications regarding the Convention,
The guiding spirit of the Convention, and the
basis on which the other provisions must be
judged, is that the best interest of the child
must be a primary consideration in any decision
about that child.
Recognizing the reality of the lives of peoples who do not
belong

to the dominant societies,

separate

article

the

for the protection

of

Convention
minority

includes a
ethnic

and

indigenous rights.

22 - refugee children; 23 • disabled children; 24 • health; 25 - separation from
family; 26 - social security; 27 - standard of living; 28/29 - education; 30 minority euid indigenous rights ; 31 - rest ctnd play; 32 - economic exploitation;
33 - substance éüsuse; 35 - sexual abuse; 35 - abduction and sale of children; 36
• éü)use and exploitation; 37 - torture eUid imprisonment; 38 - armed conflict;
39 - recovery care; 40 - penal justice; 41 - accession to the law of State party
or international law more conducive to the rights of the child; 42 dissemination; 43 implementation and monitoring; 44 - submission reports to
Committee; 45 - international cooperation; 46 - ratification; 49 - enforcement
of the Convention as law; 50 • amendments ; 51 - reservations ; 52 - denunciation;
53 - ON as depository of Convention; 54 - language «md signatories.
:^The Uhited Nations Children's Fund was the lead ON agency in the drafting
of the Convention. It remains the primary organization in the dissemination,
implementation, monitoring and adjudication of the Convention.
'^Author's emphasis.

32

Article 30: In those States in which ethnic,
religious or linguisitic minorities or persons
of indigenous origin exist, a child belonging
to such a minority or who is indigenous shall
not be denied the right, in community with
other members of his or her own culture, to
profess and practice his or her own religion,
or to use his or her own language.
Further,

Article

17,

referring

to a

child's

access

to

information, also includes ethnic minority and indigenous rights:
"State Parties shall ... (d) encourage the mass media to have
particular regard to the linguistic needs of the child who belongs
to a minority group or who is indigenous."
The Canadian government was actively involved in the drafting
process

of

the

Convention.

In

1982,

a

federal-provincial-

territorial working group was established to provide input on the
text to the UN drafting committee.

In the mid-1980s, the Assembly

of First Nations began a "self-initiated" involvement®’ in the
drafting process which resulted in Canada's ratification of the
Convention

with

two

reservations

and

one

statement

of

understanding. These reservations and the statement, both of which
pertain to Article 21, the adoption provision, were in effect

^'Canadieui Council on Children and Youth, "The Convention on the Rights of
the Child: Backgrounder," Ottawa [photocopy], n.p.
"Senior Memager, Assembly of First Nations, Ottawa, telephone interview
with the author, 23 May 1996.

33

inserted

at

the

request

of

First

Nations

organizations.®®

Recognizing the significant negative impact of the adoption process
affecting First Nations children which came to light at the same
time during the early deliberations of the Convention, the First
Nations groups ensured that Article 21 would not end the "customary
forms

of

care"

practiced

by

the

First

Nations

community.

Specifically, custom adoption®® may not be restricted by Article 21
of the Convention. Further, the statement of understanding allows
for the consideration of Article 30 (ethnic and indigenous rights)
in "interpreting and applying all the rights in the Convention.”
With the reservation and the statement of understanding, it appears
that Canada has made a great effort to ensure that First Nations
children 's rights are protected and promoted.

"A reservation indicates that a State is not bound by a certain article
of the Convention due to a specific domestic situation.
A statement of
understanding- explains how a state interprets a certain article. The Assembly
of First Nations, the Native Council of Canada, the Native Women's Association
of Canada and the Metis National Council were consulted by the federal government
with respect to the reservation and statement of understéuiding. See Canadian
Council on Children and Youth, "The Convention on the Rights of the Child:
Backgrounder."
"In traditional First Nations philosophy, and unlike the adoption
practices of the dominant society, a child is a member of the community, and
therefore, the care of a child cam and does extend to the community, beyond the
nuclear family to which the dominant society is accustomed. Their concept of
adoption is much broader, in the sense that, it is not restricted to adoption of
children, as in the dominant society. A family may adopt a grandparent, a child
may adopt am uncle or an aunt, a mam may adopt another brother, and so forth.
In Sinclair amd Bala, "Aboriginal Child Welfare Laws," 179.

34

There is much hope for the Convention, as evidenced by its
wide acceptance in most countries and its depiction as a "holistic
and far-reaching instrument for the protection and development of
the

child.Within

the

Canadian

communities welcomed the Convention.

context,

First

Nations

The Native Council of Canada,

now the Aboriginal Congress of Canada, responsible for

both non­

status and status off-reserve First Nations reports that
[t]he Convention is a very welcomed development
because it gives directions for governments to
move in, to explore the current situation of
children, to plan responses and to take actions
to improve the situation of all children. It also
provides indicators against which a government's
actions can be assessed.
Similarly, the Assembly of First Nations states that
[t]he Convention on the Rights of the Child is a
step in the right direction for not only First
Nations children but all children in the world
who are suffering. First and foremost, the
Articles respect the interests, concerns and
heritage of First Nations children. The United
Articles value their existence.®^

*“Y.N. Kly, "On the Meaning and Significance of the Ctaited Nations
Convention on the Rights of the Child, " Canadian Review of Social Policy 27
(1991): 67.
*^Native Council of Canada, "Report by the Native Council of Canada on
Canada's Response to the ON Convention on the Rights of the Child, " July 1993
[photocopy], 4.
«^Assembly of First Nations, "To Respect the Child, You Must Respect the
People : A Study of the Articles of the United Nations Convention on the Rights
of the Child," November 1993 [photocopy], 1.

35

By setting a standard for the treatment of children, the
Convention aspires to address injustices and inequities against all
children. The question, however, is whether or not the Convention
is responsive to the needs of marginalised children,

of those

living within the periphery of nations as a result of their
exclusion from the dominant society.
Because the Convention was recently ratified and promulgated
within Canada, there is no precedent upon which one can base an
assessment

of

the

appropriateness

and

effectiveness

of

the

Convention as a human rights instrument to ensure the equality of
all children.

However, one can examine the inherent conflicts

which arise out of international human rights laws. These conflicts
render the Convention problematic for those who live in the margins
of society, especially the First Nations children of Canada.

36

Chapter Three
The Origins of International Hnaan Rights Law, Universality
and Legal Pluralism

The central argument of this thesis is that the inherent
conflicts

ininternational laws render them inappropriate and

ineffective as instruments with which to protect the human rights
of minorities and indigenous peoples.
critique

the

Convention

by

This chapter will indirectly

identifying these

international human rights law in general.

conflicts

in

The focus will remain

on the following issues: the differences between the ideology of
international human rights laws and the ideology of the First
peoples in Canada; universality versus cultural relativity; and
legal pluralism.

The first involves a discussion of the origins of

human rights law, and the opposing worldview of First Nations
peoples.

The second is a discussion of the age-old discourse on

the standardization and normative aspects of international law on
one hand, and the relevance of culture, traditions and belief in
the interpretation of law on the other.

The third will identify

the hierarchy of rights and the adversarial nature of rights that
ensure the continuation of the status quo of the dominant society.

37
Origins of International Hunan Rights Law

Before

embarking on the origin of human rights,

it

is

necessary to define human rights as understood by the dominant
society. It is important to note that the Universal Declaration of
Human Rights (1948) and subsequent human rights instruments do not
explicitly define humcui rights.

As Louis Henkin describes them,

implicit in human rights is a commitment to individual worth.“

The

essence of equality derived from personhood is embodied in human
rights; it is neither bestowed nor granted by society; rather, all
human beings are entitled to human rights for simply being bom.
Henkin further states that "the idea of human rights is a political
idea with moral foundations

...

[I] t is an expression of the

political relationship that should prevail between individual and
society.

"Louis Henkin, "The universality of the Concept of Human Rights," in Glen
Hastedt and Kay Knickrem, eds., Towards the 21st Century: A Reader in World
Polities. (Englewood Cliffs, NJ: Prentice Hall, 1994), 369. The UN emphasis on
individual rights as a legitimate international concern occurred after World War
II. Recognition of the group rights of racial, ethnic, linguistic and religious
minorities existed prior to this time. A number of treaties euid “minority
clauses" under the auspices of the League of Nations were signed, involving
countries such as Czechoslovakia, Austria, Greece, Bulgaria, Hungary, Poland,
Turkey, Rumania and Yugoslavia. See Gerhard von Glahn, Law Among Nations. 5th
ed. (New York: Macmillcux Publishing Co., 1986), 179-180.
There is a distinction between ethnic minorities and indigenous minorities,
but recognition of group rights will not be explored in this analysis.
"Henkin, "The Universality of the Concept of Human Rights," 368.

38

To understand the essence of human rights and to provide a
sense

of

indeterminacy

of

these

rights,

the

following

six

characteristics of human rights are noted by James Nickel:
1.

2.

3.

4.

5.

6.

Human rights are rights. Although
the meaning is unclear, 'rights' suggest
that they are definite and high priority
norms whose pursuit is mandatory.
They are universal. It [sic] implies
that race, sex, religion, social position
and nationality are irrelevant to
whether one has human rights.
Human rights exist independently of
recognition or implementation in the
customs or legal systems of particular
countries.
Human rights are important norms,
strong enough as normative considerations
to prevail in conflicts with contrary
national norms and to justify international
action on their behalf.
Human rights imply duties for both the
individuals and governments, despite the
fact that international human rights laws
are obligation for, among and between
states.
Human rights establish minimal standards
of decent social and governmental
practice.®®

Briefly re-stated, they are universal and normative standards,
irrespective

of

race,

sex,

religion,

class

and nationality.

Moreover, they are an obligation for, between and among states.

«James W. Nickel, Making Sense of Human Rights; Philosophical Reflections
on the raaiversal-Declaration on Human Rights (Berkeley: university of California
Press, 1987), 3.

39

Taking into consideration these characteristics of human
rights, do the rights under the Convention extend to First Nations
children so that, for example, fewer children die at birth or under
the age of five? To answer this question,

it is necessary to

examine the origin of international human rights law and assess its
compatibility with First Nations life philosophy.
The contemporary notion of rights is rooted in Anglo-American
legal theory.
property,

Briefly, the liberal ideology of life, liberty and

as expounded by John Locke forms the basis of the

philosophy of rights.

From natural law inheres natural rights of

individuals within, what Locke calls, a "political society."®®

The

concept of individual ownership as expressed in property rights
necessitated a "political society" to which individuals submitted.
More importantly, this political society guaranteed these rights to
ownership.

The notion of ownership in Locke's theory was "an

individual labour-based possession" which legitimized individual
acquisition
enlightenment

and

unlimited

ideas

appropriation.®’

of progress

The

pursuit

of

and development

ensured

the

James W. Tully, "Rediscovering America: The Two Treatises and Aboriginal
rights," in 6. A. J. Rogers, ed., Locke's Philosophy; Content and Context
(Oxford: Clarendon Press, 1994), 166.
^''Arthur Dyck J., Rethinking Rights and Responsibilities; The Moral Bonds
of Community (Ohio: Pilgrim Press, 1994), 4-5.

40

Strengthening of modem states and modem markets.

It also ensured

that law among nations reflected the relationship between states
and markets.

Thus, international law entrenched the notion of

individual ownership in the English tradition and a political
society closely resembling nation-statehood.
In contradistinction, First peoples of North America, living
as they had for millenia, had a different life philosophy. Unlike
the dominant European mode of organization, First Nations lacked
the state-centered "political society."

Further, their idea of

ownership was better described as "stewardship."

As James Tully

explains,
[t]hey were a confederation of nations presided
over by an assembly of national chiefs ... Each
nation had a clearly demarcated and defended
territory, a decision-making body, a consensusbased decision-making procedure and a system of
customary laws and kinship relations. Moreover,
with respect to property, the territory as a
whole belongs to the nation, often women are
custodians and jurisdiction over it is held in
trust by the chiefs. It is inalienable, and the
identity of a nation as a distinct people is
inseparable from their relation to and use of
the land, animals and entire ecosystem. Although
land belongs to them, it is more accurate to say,
as the Inuit stress, that they belong to the leuid.®®

"Tully, 180-181.

41

The intrinsic connection between land and peoples is an
important distinction, because it runs contrary to the principle of
rights to ownership. Furthermore, their society based on collective
obligations, as distinguished from rights, and consensus decision­
making are features which added to Locke's assessment of First
Nations society as "uncivilized" and in a "state of nature."
Tully asserts,

As

the social order of First Nations peoples was

construed as an historically less developed form of European
political organization, and not on par with European political
formation.*®
As Mary-Ellen Turpel explains the difference,

"aboriginal

cultures are not simply different races - a difference explained in
terms

of

biology

(or colour) : aboriginal

cultures

manifestations of a different human (collective)

are

the

imagination."

Further, she asserts that the right to private property as the
cornerstone of the idea of rights runs contrary to this human
imagination.
idividual

As she explains,

ownership

"Tully, 167.

is

"the notion of rights based on

antithetical

to

the

widely

shared

42

understanding of creation and stewardship responsibilities of First
Nations peoples, for the land, or for Mother Earth.
This seeming digression into the origins of rights and First
Nations life philosophy may seem, on the surface, irrelevant to
contemporary international human rights law.

The divergence,

however, is significant if one accepts the notion that "systems of
laws are devised to suit the types of societies they are intended
to

support.Contemporary

therefore,

international

human rights

reflects societies which subscribe to enlightenment

ideas of social, political and economic relations.
explains,

law,

As Nickel

"[t]he Universal Declaration of Human Rights replaces

Locke's three generic rights - to life, liberty and property - with
nearly two dozen specific rights."’^ Further, it ensured that human
rights

laws

individual

has
rights

three distinct
and

freedoms;

structure is the sovereign state.
social

codes

and

relations

features:

first,

second,

the

it concerns

organizational

Third, it is an expression of

incompatible

with

First

Nations

philosophy.

^°Mary Ellen Turpel, “Aboriginal Peoples and the Canadian Chcurter of Rights
and Freedoms," Canadian Women's Studies 10, no. 2/3, 150-152.
’^James K. Feibleman, Justice. Law & Culture (Dordrecht: Martinus Nijhoff
Publishers, 1985), 63.
^-Nickel, Making Sense of Human Rights. 4.

43

With respect to individual rights and freedoms, Blackburn
states that,
[t]he single objective of human rights theory auid
now of humcui rights law, has therefore always
been to protect weak individuals from the
oppression of powerful groups, by giving them
inalienable rights which inhere in them as
individuals.^
International human rights law, therefore,
paramountcy of individuals.

is linked to the

As Paul Hazard explains,

it [human rights] is linked to cultures in
which the importance of the individual is
acknowledged and backed by a body of law to
which this individual can appeal in defense of
his or her rights against other individuals or
the State.
The second feature of contemporary international human rights
regime is that it is state-centric.

The importance of state

sovereignty is integral to the notion of human rights.

As Falk

explains, the prevailing structure and organizational feature is
the sovereign state.''®

While the reasons for postwar development

in human rights may have been spurred by the atrocities of war, it
"Robert Blackburn and John Taylor, eds. Human Rights for the 1990s: Legal.
Political and Ethical Issues (London: Mansell, 1991), 38.
"Olwen Hufton, "Introduction"
in Olwen Hufton, ed., HistoricalChange &
Human Rights (New York: Basic Books, 1995), 2.
''^Richard Falk, "Cultural Foundations for Protection of Human Rights," in
Abdullahi An'Naim, ed., Human Rights in Cross Cultural Perspectives: A Questfor
Consensus (Philadelphia : Universityof Pennsylvania Press, 1992), 55.

44

is also for and about the international system of states.

As

Sanders explains, three reasons for the interest in and development
of

contemporary

international

human

rights

law

are

state

legitimacy, peace and political stability in the international
system, and recognition of transnational actors."'®

Despite the

notion of rights of the individual, human rights are products of
states. As we shall see later on in this chapter, this presents a
curious situation for those who live on the margins of society.
The third aspect of modem human rights law is that it is an
expression and agency of power.

The evolution of "customary norms"

to a codified form elevates relations to "an aspect of political
power."

It then becomes an expression of power because it is

couched in terms of rights and freedoms,

and as Carol Smart

explains, gives the impression of extending 'rights,' not creating
wrongs/"

As an example of this, the notion of life, liberty and

property justified slavery in America in the face of human rights
documents such as the American Declaration of Independence and Bill
of Rights.

Similarly, the same concepts justified the European

’®Sanders, "International Human Rights Law, Spring 1996," IA-A-2.
"Carol Smart, Feminism and the Power of Law (New York: Routledge, 1989)
142.

45

colonization and dispossession of Indians in American

'terra

nullius' centuries ago.’® As Maureen Davies explains,
[t]raditionally, Aboriginal Peoples have been
considered to be the objects rather than the
subjects of international law. European
powers were directly responsible for the
content and direction of this facet of law
and it is therefore not suprising that the
interests of Aboriginal Peoples have not
found adequate representation and protection
at this level.’®

Universality versus Relativity

The normative aspects of international law dictate a specific
character of human rights laws: they are universal and neutral in
application.

This universalist value consideration dates back to

Roman times when Cicero (106-43 BC) stated that "true law is right
reason, in agreement with nature; it is of universal application,
unchanging and everlasting

... justice is one;

society, and is based on one law."®°

it binds all

In the same vein, all human

rights documents begin with the emphasis that all human beings are

’"Tully, "Rediscovering America,” 174.
’%aureen Davies, "Aspects of Aboriginal Rights in International Law, " in
Bradford W. Morse, ed.. Aboriginal Peoples and the Law: Indian. Metis and Inuit
Rights in Canada, rev 1st ed. (Ottawa: Carleton University Press, 1991), 43.
’’Paul R. viotti and Mark V. Kauppi, eds.. International Relations Theory
(New York: Macmillan Publishing Co., 1993), 533.

46

entitled to the same rights and freedoms without distinction of any
kind.

Moreover, these rights and freedoms "must be uniform in

different applications.
The debate over the universality, uniformity and neutrality of
international law is irresolvable inasmuch as the outcome depends
on the perspective through which one chooses to see the world.

As

Philip Alston comments,
[a]t a certain level, the debate over the nature
of the relationship between international or
'universal' human rights standards and
different cultural perspectives and context
can never be resolved. Thus, the very
aspiration to achieve acceptance of certain
universal standards invites continuing
controversy and provokes the assertion of
relativistic positions."
Cultural relativists argue that the absence of contextual
diversity in international human rights instruments is superfluous
and ineffective at best and is supportive of the status quo at
worst.

Paul Carrington, in a vociferous argument against the

universalist tendency of international law, states the following:
Lengthening the lists of humêui rights or
principles of natural law is a form of
non-violent imperialism, depriving as it
does the choice of social arrangements

'^Carlos Santiago Nino, The Ethics of Human Rights
Oxford, 1991), 30.
"Alston, "The Best Interests Principle," 16.

(Clarendon Press,

47

open to a self-governing state or
community."
Further,

this

'pursuit

of

the

single

truth'

evident

in

universality and neutrality constitutes, he argues, "the one great
theoretical design for positive law (might we call it justice?)
that will best advance our increasingly unified human condition.
He asserts, as an example of this pursuit of the single truth, that
the Universal Declaration of Human Rights (1948) constitutes "a
proclamation that the whole world should resemble as nearly as
possible suburban middle class America.""

Similarly, An-Na'im

states that
normative universality in human rights,
including the rights of the child, should
neither be taken for granted nor achieved
through the "universalization" of the norms
and institutions of dominant cultures,
whether at the local, regional or
international levels."
The debate over the generalist nature of international human
rights laws and the absence of specificity elicits the following

“^Paul D. Carrington, "Aftermath," in P. Cane and J. Stapleton, eds.,
Essays for Patrick Attivah (Clarendon Press : Oxford, 1991), 114.
"Carrington, 114.
’^Carrington, 114.
"An-Na'im, "Cultural Transformation and Normative Consensus on the Best
Interests of the Child, " in Alston, ed. The Best interests of the Child. 62.

48

question: What exactly is omitted from this discourse?

It omits

the interplay of forces such as ethnicity, class and gender vis-avis dominant social,

political and economic structures.

The

distinct omission of ethnicity, class and gender perspectives in
legal

instruments

renders

heterogeneous situations.

a

homogeneous

perspective

to

The notion of empowering all peoples

equally because individuals are subject to the same laws and these
laws guarantee due process equally is simplistic and arguably
false.

The

'objectification'

in

the

name

of

universality,

neutrality and uniformity, or the lack of 'subject positioning',
negates the reality of difference between the dominemt race, class
and gender, and that of the minority.
argues,

As Catherine Mackinnon

"[I]n reality begins principle ...

[B]ehind all law is

someone's story - someone whose blood if your read closely, leaks
through the lines. Text does not beget text; life does."®''
Essentially, international human rights instruments do not
take into account power relations between rich and poor, male and
female, 'coloured' and 'white' races.

For those who do not belong

to the dominant society, the implications are great.

As Patricia

Williams states.

‘^Catherine Mackinnon, "Crimes of War, Crimes of Peace," in Stephen Shute
and Susan Hurley, eds.. On Human Rights. 83.

49

[11 aw and legal writing aspire to formalized,
color-blind, liberal ideals ... Neutrality
is the standard for assuring these ideals,
yet the adherence to it is often determined
by reference to an aesthetic of uniformity
in which difference is simply omitted ...
race neutrality in law has become the
presumed antidote for race bias in real life."
While Williams’ analysis refers to 'race,' it is nonetheless
interchangeable

with

a

class

and

gender

analysis.

To

omit

distinctions of race, class and gender variables is to misconstrue
the reality of power relations in society.
neutral

quality

therefore,

that

of

international

individuals

human

requiring

The universal and

rights
the

guarantee are offered the least protection.

laws

most

ensures,

significant

To explain this

anomaly, Diane Bell states that
[t]he impetus to universalize glossed over
differences in a way that, it could be argued
has been an impediment to its realization, and
that partly explains the reluctance of certain
states to implement it or, once they have
adopted it, explains the lack of success in
achieving its goals."
The universal normative considerations of international human
rights laws emphasize sameness and gloss over difference.

An-na'im

"Patricia J. Williams, The Alchemy of Race and Rights (Cambridge: Harvard
University Press, 1991), 85.
-’Diane Bell, ''Considering Gender; Are Human Rights for Women, Too?" in
An'Naim, ed., Human Rights in Cross-Cultural Perspectives. 354.

50

questions this principle in asking "by whose criteria or according
to which philosophical framework can the universality of the norms
in question be declared or verified?"®®
While many minorities (racial minorities, women, homosexuals)
seek

equality and protection

peoples

seek

recognition

distinctiveness.®^

and

from discrimination,
protection

of

indigenous

their

cultural

Unfortunately for First Nations,

normative

considerations of international human rights law encourage and
endorse sameness more than they reflect the politics of difference.

Legal Pluralisn

This

section

focuses on the third aspect which hinders

international human rights laws from protecting the rights of First
Nations children: legal pluralism.

The plurality of legal codes

exists at two levels: one on the hierarchy of laws within the
international human rights framework; the other, on the competing
and adversarial rights within a particular law.

As Farida Shaheed

explained in her discourse on law and Muslim women, "in any given

’°An-Na 'im, “Cultural Trams formation, " S6.
“Samders, "International Humam Rights Law, Spring 1996," M-A-l, 11.

51

context,

a plurality of laws exist in a hierarchy."*^

This

hierarchy is evident in the approximately twenty-one international
human rights instruments upon which a person can base a claim.
First and presumably foremost of these human rights codes is the
Universal

Declaration

of

Human

Rights

(1948).

Subsequent

Conventions include the International Covenant on Economic and
Social and Cultural Rights (1966), the International Convention on
Civil and Political Rights (1966), the International Convention on
the Elimination of all Forms of Racial Discrimination (1966) , .and
so f o r t h . T h e s e Conventions, which all accede to the Universal
Declaration of Human Rights, are to create the conditions for just
and equal treatment of individuals in all aspects of society.
However,

in the case of the protection of the rights of

children, this plurality has been presumed to be avoided, since, as
mentioned earlier, the Convention is the most comprehensive human
rights instrument thus far,
rights in one document.

avoiding various

'generations'

of

As Lawrence LeBlanc explains.

’^Farida Shaheed, "Controlled or Autonomous," Signs : Journal of Women in
Culture and Society 19 (1994), 1005.
”Jéunes W. Zion, "North American Indian Perspectives on Human Rights," in
An-Na'im, Human Rights. 192.
'*For a list of basic documents, see Ian Brownlie, ed., Basic Documents on
Human Rights. 3d. ed. (Oxford: Cléurendon Press, 1993) .

52

[t] raditionally, human rights have been throught
of in terms of two principal categories: civil
and political rights; and economic, social and
cultural rights ... [T]he substantive articles
of the Convention on the Rights of the Child
reflect this "new" way of thinking because they
affirm a broad range of civil, political,
economic, social and cultural rights while
making no formal distinction among them.”
What is crucial, however, is the notion of 'competing rights'
arising out of binary opposites within legal doctrines.

As Barbara

Johnson explains, "[b]ecause rights are categorical, they often
come in contradictory pairs."” Thus, the right of one, is the loss
of

right

for

another.

For

example,

in

human

rights

law,

contradictory rights arise between state rights and individual
rights, between individual rights and group (collective) rights,
between the right to autonomy and the right to be cared for,
between the right to self-determination and the right to cultural
belonging.
To illustrate the this hierarchy of rights, perhaps it is best
to begin with the binary opposition of state rights and individual
rights.

The paramount principle of international human rights laws

’^Lawrence Leblanc, The Convention on the Rights of the Child: United
Nations Lawmaking on Human Rights (Lincoln: University o£ Nebraska Press, 1995),
xvii.
''Barbara Johnson, "Introduction," in Barbara Johnson, ed.,
(New York, Basic Books, 1993), 7.

Freedom and

53

which have emerged from the European state system is that they are
obligations

among

states.

Because

signatories

to

public

international law are states, the 'contract' is not between the
international community and the individual; it is for, among and
between states.

Further, because of the absence of a supranational

legal enforcement mechanism, the only deterrent to violation of
human rights is the signatory states' obligation to other states.
Gerhard von Gian explains that "as yet, it is the state that
possesses an international legal right, not the individual."” This
presents a curious anomaly.

As Mackinnon explains, "states are the

only ones recognized as violating human rights, yet states are the
only ones empowered to redress them."’® Therefore, the fulfilment
of individual rights rests with a states' moral commitment to
fulfil those rights.
This poses a difficult problem because the definition of a
moral obligation of state rests in the hands of the powerful few.
Because

states,

as

subjects of

international

law,

are

self­

determining and self-governing, how the state treats its citizens
is subject to domestic policy made of the national interest as

”Gerhard von Glahn, Law Among Nations. 6th ed. (Toronto: Maxwell Macmillan
Canada, 1992), 249.
"MacKinnon, "Crimes of War, Crimes of Peace," 93.

54

defined by the state.

Inasmuch as the state machinery is to

protect the individual, inaccessibility to this protection due to
differing conceptual and experiential power relations between state
and individuals renders the protection ineffective.

One simply has

to look at the gross human rights violations in all comers of the
world, especially against women and children, that go unabated to
understand the weakness of the system.

As Jack Donnelly argues,

"[P]ublic international law and international organizations are
products of states, not of a cosmopolitan world community. They are
instruments of, not alternative to, States."”
First Nations peoples are doubly-bound because of the systemic
adversarial position of States and individuals, and their distance
as colonised minorities from the state machinery.

In explaining

this dilemma, Falk states that
... to the extent that international law
of human rights is an exclusive result of
of the States system, it cannot hope to take
into account of the values and needs of
peoples that are not adequately represented
in that system or even constituted to qualify
for membership.

"Jack Donnelly, "Third Generation Rights," in Catherine Brolmann, Rene
Lefeber and Marjolaine Zieck, eds. Peoples and Minorities in International Law
(Dordrecht: Martinus Nijhoff Publishers, 1993), 145.
ioopalk, "Cultural Foundations for the International Protection of Human
Rights," 48.

55

In addition, he claims that exclusion from the rights forming
process is a denial of human rights, inasmuch as the protection
offered is in an oblique and obscure manner,

and that those

excluded are likely to be taken into account (if at all) in a
partial and paternalistic manner.
Another binary opposition is that of the individual versus
group (collective) rights.

This problem is especially acute for

ethnic minorities and indigenous peoples as their peoples struggle
for recognition of their rights as a collective in Canada and the
world over.

Rhoda Howard claims that indigenous groups want

recognition of collective rights, moreso than individual rights:
... they are interested in the recognition of
their collective dignity, in the acknowledgement
of the value of their collective way of life as
opposed to the way of life of the dominant society
into which they are unequally integrated.
Notwithstanding the indigenous struggles for self-determination
and self-governance, the distinction between individual rights and
groups rights is important.

This presents a binary opposition

between individual and collective rights, which begs the question,
which comes first?

Natan Lemer states that while "the individual

:"Palk, 47.
^"'Rhoda Howard, "Dignity, Community and Human Rights," in An-Na’im, ed.
Human Rights in Cross Cultural Perspectives. 84.

56

is the object of protection in these [group rights cases], the
fundamental element is the group.

This presents a clearcase

of

competing rights; for First Nations, it is often under therubric
of group rights that their rights to their own cultural expression
and cultural belonging are upheld.

Most international human rights

laws acknowledge the right to belong to an ethnic community without
acknowledging the right of that community to self-determination.
By this action, the international community again recognizes the
rights of peoples to self-determination most closely linked with an
independent state. This means, as Shaheed explains,
[t]hat law therefore flows from the social relations
it seeks to codify and --by both prescription and
prohibition -- projects an ideal for society and
demarcates the boundaries within which persons are
free to act, including the limists within which
they must formulate both a collective and
individual identity.
Johnson argues that " [N] othing in the concept of rights can
negotiate

the

conflict

that

arises

out

of

[such]

binary

opposites.

:"Nacan Lemer, Group Rights and Discrimination in International Law
(Dordrecht: Martinus Nijhoff Publishers, 1990, 31.
^"'Shaheed, "Controlled or Autonomous, " 1012.
Johnson, "Introduction," 7.

57
The Sandra Lovelace Case

This case succinctly illustrates the dilemma which faces First
Nations peoples as it captures the pressures emanating from the
origin of international human rights law, the universality of these
laws and the plurality of legal codes.
Sandra Lovelace, a Maliseet from Tobique, New Brunswick, lost
her Indian status (that is, registration as an Indian with the
Canadian state)

upon marriage to a non-Indian man.

Section

12(1) (b) of the Indieui Act (1951) stated that.
The following persons are not entitled to be
registered namely, ... (b) a woman who married
a person who is not an Indian, unless that
woman is subsequently the wife or widow of a
person described in section 11.
After losing status upon marriage to a non-Indian, Lovelace was
unable to return to her community in Tobique reserve upon the
dissolution of her marriage.

With respect to sexual discrimination

in the Indian Act, the Supreme Court of Canada ruled in 1973
(Attorney General v. Lavell and Isaac et al. v. Bedard) that the
Indian Act was exempt from, and in fact, superceded the Canadian
Bill of Rights.
recourse.

This ruling left Lovelace no other domestic legal

From this premise, Lovelace applied to the International

Human Rights Commission (the Commission) in 1977 to address the
issue of sexual discrimination in the Indian Act.

In 1981, the

58

Commission ruled that the government of

Canada breached the

International Covenant on Civil and Political Rights, as ratified
by Canada in 1976.

Specifically, Canada, through the Indian Act,

violated her right to reside in the reserve, as stipulated in
Article 27:
In those States in which ethnic, religious or
linguistic minorities exist, persons belonging
to such minorities shall not be denied by the •
right, in community with the other members of
group, to enjoy their own culture, to profess
and practice their own religion, or to use
their own language.^®®
The Commission elided the issue of gender-based discrimination
in the Indian Act by citing that Lovelace had lost her status upon
marriage in 1970, six years prior to Canada's ratification of the
Covenant in 1976.

It stated that, "as regards Canada, it can only

consider alleged violations of human rights occurring on or after
19 August 1976."^? The Commission's decision addressing Lovelace's
cultural

rights over sexual rights

Gelissen

to

ask,

"which rights

led Lillian Krossenbrink-

come

first?

Femaleness

or

ancestry?"^*

^"‘United Nations Human Rights Committee. Lovelace v. Canada, as excerpted
in Sêuiders, "International Human Rights Laws, Spring 1996," A-C-7, 76.
-“’United Nations Human Rights Committee, A-C-1, 69-70.
-“■Lilliane Krossenbrink-Gelissen, Sexual Equality as an Aboriginal Right
(Saarbrucken: Verlag breitenback Publishers, 1991), 111.

59

While this landmark case was a catalyst for an amendment in
the

Indian Act in 1985,

it nonetheless illustrates that the

international human rights regime is inappropriate and ineffective
in

upholding

Lovelace's

birthright

to

equality.

First,

the

Commission did not address the issue of sex discrimination. Second,
while Sanders states that " [t] he story of the Lovelace case is
beloved at the United Nations, for it is seen as proving that the
individual communications system under the Covenant can work,

he

questions the role of the decision in the Canadian government's
a m e n d m e n t . D u r i n g the 1970s and 1980s, First Nations women's
organizations brought the issue of sexual discrimination in the
Indian Act to the forefront of politics of First Nations/non-First
nations relations, and it subsequently became a major political
issue in C a n a d a . T h i r d ,

while the amendment. Bill C-31,

in

principle reinstated women who had lost their status due to
marriage, discrimination has now been passed on to the "second
generation", that is, to the offspring of unions of status and non-

^”Sanders, "Developing a Modem International Law, Spring 1996" A-B-4.
•^“Sanders, A-B-4.
'^^Sanders, A-B-4.

60

status First N a t i o n s . Neither the Commission nor the Canadian
government

through

discrimination.

Bill

C-31,

attempted

to

eliminate

sex

I suggest that the exclusion of First Nations

female voices in the construct of international law, the commitment
to universality in the international regime and the configuration
of adversarial rights contributed to the denial of Lovelace's
birthright.
It

is

ironic

that

the

international

community

upheld

Lovelace's right to a collective identity which the Canadian
government has as yet failed to recognize de facto, despite the
entrenchment

of

aboriginal

rights

in

Section

35

of

the

Constitution.

The fact that First Nations women have a legislated

identity, apart from a negative, socially constructed identity by
the dominant society in Canada, in the face of international human
rights laws points to the fact that ancestry indeed supercedes
femaleness.

Clearly, Lovelace was attempting to assert her human

rights in a system of law that is ill-equipped to deal with unjust
treatment

stemming from inequitable gender,

class suid ethnic

relations. This is where Lovelace's case relates to First Nations
children.

a detailed explanation, see Native women's Association of Canada,
Guide to Bill C-31: An explanation of the 1985 amendment (Ottawa: NWAC, 1986) .

61

The Lovelace case was as much an issue of ethnicity and class
as it was of gender.

I suggest that the implications of the

Convention on First Nations children are the same as those raised
in the Lovelace Case.

While the implications are the same, the

effect is greater because First Nations children, as all children,
require a voice to speak for them,
spiritually

auid are physiologically,

emotionally

and

dependent

on

caregivers

until

adulthood.

However, unlike other children. First Nations children

are at greater risk precisely because of these implications.
To recapitulate, this chapter examined three foundational
aspects

of

universality

international
and

human

the plurality

rights
of

law:

legal

the

origin,

the

codes.

From

this

examination, there is a distinct feature of international human
rights law that hinders the protection of First Nations peoples, as
supported by the Lovelace case. International human rights law is
an expression and an agency of power.

Owing to its enlightenment

roots, it is an expression of power in that it speaks of the
interests of the dominant society. Or, as Nickel comments with
respect to the Universal Declaration of Human Rights, it is an
attempt to "set forth the norms that exist within enlightened

62

moralities.""^

Moreover, although it purports to be a universal,

neutral and uniform arbiter, it is an agency of power because the
system can deny, withhold or contravene rights by virtue of its
expression.

There is an underlying assumption of unity of society

and nation that serves to obscure material relations of conflict
and oppression.""4

Further, the unity expressed in human rights

instruments oversimplifies complex power relations, meaning that
the

"acquisition

of

rights

in a given area may create

the

impression that a power difference has been resolved.""®
What might this mean for a First Nations child?
chapter will

critique

the

Convention on the basis

The next
of these

troubling theoretical foundations.

^Nickel, Making Sense of Human Rights. 1987.
"*Marlee Kline, "Child Welfare Law, Best Interests of the Child Ideology
and First Nations," Osgoode Hall Law Journal 30, 2 (1992), 415.
‘^^Smart, Feminism and the Power of Law. 144.

63

Chapter Four
In Whose Best Interest?

There is another United Nations (UN) treaty
... that specifically protects the rights of
the indigenous child. It is a human rights
treaty known as the Convention on the Rights
of the Child.

Since

the UN's adoption of the

Convention and Canada's

subsequent ratification are recent occurrences,
premature

to

Convention.
Cohen's

assess

empirically

the

it is perhaps

effectiveness

of

the

In this section, I take issue with Cynthia Price

endorsement

quoted

above

and

examine

the

practical

implications of the Convention on First Nations children.

Using

the previous chapter's arguments as the basis for the following
critique of the Convention, this section identifies anticipated
sites of conflict and contradictory positions in which First

“'Cynthia Price Cohen, "Rights of the Indigenous Child, " St. Thomas Law
Review 7, 3 (1995) : 558. Cohen participated in the drafting of the Convention
from 1983 to 1989.
Her support of the Convention as it applies to Native
American children is evident in this article. She states that "... this treaty
protects the rights of the indigenous child in many ways - by respecting the
child's cultural heritage and also by supporting a standard of living that
includes health and education. It is to the benefit of IndicUi children for the
United States to ratify this treaty." (p. 566)

64

Nations children find themselves trapped - a consequence not of
their own making since, as illustrated by the preceding chapter,
they reside furthest from the structure of international law.

As

the jurisprudence of children's rights is still nascent in the
international community, this critique raises questions more than
it seeks to resolve issues.
In the broadest sense, the primary problem arises from the
duplication and overlap in the international human rights system.
As Sanders asserts, the situation of indigenous people in Canada
can

be

discussed

in

various

treaty

bodies

under

six

core

t r e a t i e s B e c a u s e Canada has signed all core treaties, First
Nations children as claimants of rights can be argued in light of
these treaties, and not necessarily vis-a-vis the Convention alone.
Further, the Convention, though it is purportedly designed to
protect individual rights, lacks an Optional Protocol, a mechanism
through which an individual can access international human rights
laws.

According

to

Sanders,

an

Optional

Protocol

"allows

states that there are now six core international human rights treaties
which have come into effect since 1966: The International Covenant on Civil and
Political Rights; International Covenant on Economic, Social cuid Cultural Rights;
International Covenant on the Elimination of All Forms of Racial Discrimination;
International Covenant on the Elimination of All Forms of Discrimination Against
Women; the Convention on the Rights of the Child; and the Convention against
Torture.
Sêuiders, "Developing a Modem International Law on the Rights of

Indigenous Peoples, a report for the Royal Commission on Aboriginal Peoples,
December, 1994," in Sanders, "International Human Rights Law, Spring 1996," lA-A4, 4-S.

65

individuals to take cases to the

[International Human Rights]

Committee for adjudication, after the exhaustion of reasonable
domestic remedies.
serious omission.

The lack of an Optional Protocol is a
States party to the Convention accept that they

are "legally accountable for their actions towards c h i l d r e n , y e t
despite the encouragement of Amnesty International during the
drafting process, there is no provision for either inter-State or
individual petition.Instead, the Convention relies on periodic
State monitoring reports as the enforcement mechanism.

In speaking

of human rights, Mackinnon states that "[e]nforcement is mainly
through

reporting,

meaning

moral

force,

meaning

effective

noneforcement.
The

uselessness

jurisprudence

is

of

the

illustrated

Convention

by the

recent

in

international

case

Wilner,^“ a child b o m in Canada to Argentine parents.

of

Daniela

Locked in

a custody battle between two continents, her father, Eduardo Mario

^"Sanders, A-B-3.
^“Rose D'Sa, "The United Nations Convention on the Rights of the Child,"
Commonwealth Law Bulletin 19, 3 (July 1993] : 1274.
«“Rose D ’Sa, 1275.
«^Mackinnon, "Crimes of War, Crimes of Peace," 97.

A20.

«‘Mark Beilis, “Mom fights to regain daughter," Toronto Star 05 July 1995,
See also de Wilner v. Hilner [1996] O.J. 670 (Ont. Ct. of Justice).

66

Wilner, applied to the International Human Rights Commission under
the Hague Convention on the Civil Aspects on the Abduction of
Children (1980) to facilitate Daniela's return to Canada.

Despite

the extensive provisions of the Convention, parties acting "on
behalf of" Daniela did not have access to these provisions.
Remaining within the global perspective, another crucial issue
is the recognition of the rights of indigenous children.

As
♦

previously stated, Article 30 recognizes "cultural" minorities,
including indigenous peoples.

While most of the encoded rights are

stated

such as the right

in positive

nationality

(Article

terms,
7),

the right to

to a name and

freedom of expression

(Article 13), and so forth. Article 30 is stated in negative terms :
... a child belonging to such a minority
or who is indigenous shall not be denied
the right ..
This is not a minor point.

As Manfred Nowak explained in a

critique of a parallel article in the International Covenant on
Civil and Political Rights,
[s]ince Article 27 of the Political Covenant

’'^^The Commission ruled that the child be returned to Canada, which the
Supreme Court of Argentina upheld. Whether or not the decision is in Daniela's
"best interest" is beyond the scope of this paper. However, the case illustrates
that despite its designation as a "core" treaty, the Convention cannot be invoked
in the intemationéü. court.
“‘Highlighted text is author's emphasis.

67

is phrased with the typically negative
formulation that members of minorities
"shall not be denied" certain rights,
positive state obligations to affirmative
action ... cannot be inferred from this
provision.
Similcirly, Sanders states that "it [Article 27] does not describe
a positive obligation on the State to ensure conditions that will
permit cultural minorities to survive and develop.
Notwithstanding the problem areas discussed above, the more
crucial issue pertaining to First Nations children is that the
protection and promotion of children's rights depend entirely on
the State's commitment to children.

For First Nations children,

this is highly problematic because of competing discourses within
the State.
In the first instance, representation is the foremost site
of struggle for First Nations children.

Who speêücs for them?

The

nature of discourses chsmges depending on whether it is the federal
government,

ministerial bureaucracies,

child-serving agencies,

individuals or collectives who put forth children's concerns.

For

“'Manfred Nowak, "The Evolution of Minority Rights in International Law,
Comments" in Catherine Brolmann, Rene Lefeber, Marjoleine Zieck, eds., Peoples
and Minorities in International Law (Dordrecht: Martinus Nihjoff Publishers,
1993), 109.
“‘Sanders, "Developing a Modem international Law, " in "International Human
Rights Law, Spring 1996," M-A-1, 11.

68

centuries, child advocacy has either excluded the voices of First
Nations children or presented them in a manner which excluded the
reality of their experiences.

Discourses of advocacy and charity,

whether by the State or by individuals and collectives, have had
deleterious

results for First Nations

children.

Residential

schools, child apprehension, adoption policies, exclusive childservice delivery have all contributed to the abysmal status of
First

Nations

children

presented

in

the

earlier

chapter.

Misrepresentation of what is in the "best interest" of a First
Nations child has and will continue to pose grave dangers.
D'sa asserts that the Convention "could become relevant where
it would be most effective -- in national c o u r t s . S h e argues
that there is scope for referring to extrinsic materials such as
international human rights laws in domestic proceedings.

The

history of domestic litigation for First Nations, especially with
respect to children, has been detrimental.

As Bradford Morse

claims, social policies, provincial family legislation and the

^^Rose O'Sa, "The Dhited Nations Convention on the Rights of the Child,"

1281.
iJ'D'Sa, 1281 .

69

actions

of

the

judiciary

are

largely

to

blame

for

the

destabilization of native families and communities.
Competing discourses with respect to First Nations cases
essentially reflect the divergence of laws between First Nations
and the dominant society, between the unwritten customary laws of
First Nations, the Canadian Constitution and the Charter of Rights
and Freedoms.

Whereas the dominant society speaks of rights

achievable through litigation. First Nations rely on consensus on
social responsibilities;
Our Nations developed consensus on
social responsibilities, and traditions
for affirming that consensus. Social
consensus is based upon a shared
agreement of individuals to exercise
a variety of responsibilities.^^®
Taking into consideration these divergent laws,

Morse asserts

that
[t]he courts, the statutes and the policies all
tend to reflect a common perception, that is,
that the native people ... are unable to meet
adequately their own family needs through their
own policies, programs, and laws.

“’Bradford W. Morse, "Indian and Inuit Family Law and the Canadiém Legal
System," American Indian Law Review 8. 2 (1980), 199.
““Community Panel, Family and Children's Services Legislation Review in
B.C., Liberating our Children. 7.
“4ïorse, "Indian and Inuit Family Law emd the Canadian Legal System," 199.
For further discussion, see works by Mary-Ellen Turpel amd Marlee Kline.

70

Recourse to domestic litigation questions the very essence of
a First Nations child.

Will she or he be treated as an individual

irrespective of ethnicity, class and gender, or as a member of a
collective struggling to forge an identity as a separate and
distinct nation?

This is a paramount question which illustrates

the complexity of issues pertaining to First Nations children.

On

one hand, it is the right to belong to an ethnic community that
provides a better chance of ensuring that a First Nations child's
needs are met.

On the other, what of individual rights, which are

the central tenet of human rights?

As Howard asserts, some rights

need to be fulfilled as precondition for the exercise of other
rights.^:

In this case, the rights of a First Nations child to

proper shelter, food, health care, and so forth, depend on her/his
belonging to an ethnic community.
(individual)

She strongly argues that "human

rights and collective rights are incompatible.

Further, she states that,
[t]he assertion of collective, community or people's
rights does not simply mean an extra right of
individuals to belong to intact communities that
embody their own cultural identity. Such assertion

“^Howard, "Dignity, Community euid Human Rights," 96.
^^Howard, 99.

71

also can, and frequently does, mean violation of
individual rights."*
Because

First Nations

children's

identity is

tied to the

collective, will assertions of individual First Nations children's
rights threaten the identity of the collective?
First Nations communities have deemed that assertion of
individual rights through access to the dominant legal system
prejudices their position because it undermines their ethnicity."®
Claiming individual rights in dominant courts, according to Turpel,
"is

particularly

threatening,

perhaps

even

ethnocidal,

to

Aboriginal Peoples who are on the brink of cultural destruction
because of the legacy of colonialism and paternalism under the
Indian Act.""®

First Nations children then are entrapped, not only

by the dominant society, but also by their own communities.
is

even

the

danger

that

because

children

cannot

There

speak

for

themselves and therefore rely on their communities to voice their

^^^Howard, 97.
^^This conflict between individual and collective rights was illustrated
in the recent Constitutional talks in which the voices of First Nations women
were excluded. In direct opposition to the Assembly of First Nations, the Native
Women's Association of Canada and other women's organizations appealed to the
court to secure a voice in the Constitutional reform talks.
"'Mary Ellen Turpel, as quoted in Jo-Anne Fiske, "The Womb is to the Nation
as the Heart is to the Body, " Paper presented to the XIII World Congress of
Sociology, International Sociology Association, Bielefeld, Germany, July 13-23,
July 18-23, 1994.

72

needs, their concerns will be subordinated to the struggle of First
Nations communities for self-determination.

To a lesser degree it

can be argued that this situation has already occurred.

As

Shridhar Sharma states, "the child welfare issue has not been a
priority amongst the federal Parliamentarians and Indian leaders
and thus a change in child welfare legislation is long time
coming.
Possibly the most detrimental character of the Convention is
the totalizing theory of universality of rights.

That First

Nations children will be treated as if they were equal, and as if
their lived experiences were the same as any child in Canada
invalidates the social, economic and political environment in which
they exist.

In effect, universality "disqualifies alternative

accounts of social reality.

Frances Olsen states that "the

quoted in Samuel Bull, "The Special Case of the Native Child," 523.
with this citation, I do not mean to undermine the efforts of First Nations

communities to gain control of child service delivery. To be sure, since the
early 1980s, First Nations connnmities have assiduously worked with the Ccuiadian
judiciary to wrest control of child welfare services. Beginning with the
Spallumcheen Band in 1989, two-thirds of b«&nds in Canada have now entered into
tri-partite agreements between the Band, the provinciêü. and federal governments,
to assume responsibility of child welfare services. See Sinclair and Bala,
"Aboriginal Child Welfare Laws," 186-188. Despite the divestment of control.
First Nations children continue to be caught in jurisdictional disputes, problems
arising from insufficient funds, transfer of payment and egregious bureaucratic
reporting procedures. (This is anecdotal evidence from a Child Protection Worker
ençloyed by the B.C. Ministry of Social Services.)
"'Smart, Feminism and the Power of Law. 4.

73

claim of unsituatedness is made by and on behalf of those with
power.

Further,

she boldly asserts that "to the extent the

Convention deals with children as unspecified, unsituated people,
it tends in fact to deal with white, male, relatively privileged
c h i l d r e n . I n essence, these "false universalisms" create a myth
of rights for First Nations children.
To substantiate the foregoing discussion, I will now point to
specific Articles and relate them to First Nations children.

Cohen

suggests that "the essence of law exists in its interpretation and
application" and that the Convention "is written in the language of
a

constitutive

instrument,

meaning

that

it

is

intentionally

inexplicit and amenable to i n t e r p r e t a t i o n . M y question is, how
amenable will the interpretation of the dominant society be to a
First Nations child?
For example. Article 2 states that a child is entitled to the
rights set forth in the Convention "without discrimination of any
kind."

The colonial history of First Nations peoples attests to

^^’Frances Olsen, "Children's Rights; Some Feminist Approaches to the United
Nations Convention on the Rights of the Child," International Journal of Law and
the Family 6 (1992), 195.
^«Olsen, 195.
“^Cohen, "Rights of the Child," 5.

74

the principle of discrimination based on ethnicity, as discussed in
chapter two.
Article 3 stipulates that in all actions concerning children,
the best interests of the child shall be a primary consideration -this is the guiding principle of the Convention.

Alston concedes

that there is considerable potential for Article 3 to be invoked in
deference

of

cultural

practices

which

are

compatible

with

children's rights norms of the dominant s o c i e t y . A s evidence, he
cites a case study of First Nations children which
surveyed the extent to which the principle was
applied by the Canadian judiciary to present a
consistent preference in favour of "the
apprehension and placement of First Nations
children away from their families smd
communities as natural, necessary and
legitimate, rather than coercive and
destructive.
Wotherspoon and Satzewich also question the "best interest"
principle :
Ultimately, the move to establish child welfare
practices "in the best interests of the child"
continues to leave unanswered questions about who
is defining and directing those interests, and to
what end.

"'Alston, "Reconciling the Best Interest of the Child," 21.
"'Alston, 21.
"«Wotherspoon and Satzewich, First Nations. 94.

75

Article 8 provides the right to preserve a child's identity,
including nationality, name and family relations.

Identity is not

a simple matter of biological identity or citizenship. To a First
Nations child it is particularly complex.

Are they girls and boys,

daughters and sons of their biological parents, adoptive daughters
and sons of grandparents,

aunts, uncles or "Houses," Canadian

citizens, or members of their respective Nations?

At birth, they

are accorded a legislated identity through Status registration
which does not ensure the protection or the promotion of their
rights.
Under entitlement to care. Articles 24 (Health), 27 (Standard
of Living) , 28

(Education) , and so forth are designed to meet

children's basic needs.

Standards of care designed by and for

European Canadian children continue to marginalize First Nations
children.

Why should they not be so if they are designed to be

intolerant of difference?
The

Canadian

government

signed

the

Convention

with

a

reservation with respect to adoptions (Article 21). The reservation
ensures that "customary forms of care" of First Nations communities
are not restricted by Article 21.

While this reservation was a

form of "protection" sought by First Nations groups during the
drafting process, the phrase "customary forms of care" is not

76

explicitly defined.

This appsurent victory for First Nations might

prove otherwise in that it leaves the decision to define what is
customary to the dominant judicial process.

On one hand, adopting

and enforcing customary law accedes to the rights of First Nations
to identify and govern their own social relations; on the other
hand, it forces them to rely on legal processes to define what is
customary for them.“®

Codifying customs, as Goonesekere argues,

may not reflect community traditions; instead, they may become
products

of

misinterpretation

or

imposition

of

judicial

perception.^*®
What further complicates the interpretation of customary forms
of care and, for that matter, First Nations customary laws, is the
reliance of First Nations on oral histories and oral tradition. The
dominant

courts,

relying

on

written

practice

from

principles,
oral

will

have

histories

and

difficulty

establishing

traditions.

Moreover, the system of legal precedents precludes the

understanding and acceptance of "lived relationships" which inform
First Nations customary laws.

Lived relationships refer to the

further discussion, see Jo-Anne Fiske, "The Supreme Law euid the Grand
Law," BC Studies. 105-16 (1995), 183-199.
^««Goonesekere, "Women's Rights & Children's Rights," 27.

77

moral, emotional, and social relationships that are intrinsic to
the legal code of obligations in First Nations communities.
Finally, Article 42 states that "States Parties undertake to
make the principles and provisions of the Convention widely known,
by appropriate and active means, to adults and children alike."
However, Teresa Nahanee asserts that "Canada has made no effort to
inform

aboriginal

children

or

their

parents

on

the

rights

guaranteed under the Convention on the Rights of the Child.

The

Metis National Council also states that "our Metis citizens have
not been informed about the Convention or its contents because
there has not been on-going communication between the federal
government and the Metis."^'*®

Regrettably, I have yet to find any

evidence with which to dispute this claim.
While I have examined but several of the fifty four articles,
the Convention appears to fall short of empowering First Nations
children, even though the international community may have been
genuine in its intention. The Convention symbolizes "two distinct
doctrines of person" - one which requires the construction of a

^^''Native Women's Association of Canada, "Aboriginal Children's Rights: 1993
NWAC Report on the Convention on the Rights of the Child, " June 1993 [photocopy],
Ottawa, 76.
-'"Metis National Council. "Metis National Council Report on the thiited
Nations Convention on the Rights of the Child," June 1993 [photocopy], 2.

78

First Nations identity, beyond the exigencies of the State, for
empowerment of rights; and another which portrays them as children,
irrespective of their First Nations identity for access to those
rights. With the Convention, they gain the right to speak for
themselves.

However,

as

Barry

Morris

asserts

that

in

the

construction of their identity, "they lose the right to speak for
themselves as the production of their identity is invested in
experts and authorities and are mediated by institutions of the
state

system.Falk

more

forcefully states

that national

identity converted to legal status conferred by the state does not
correspond

with

their

ethnic,

psychological

and

political

r e a l i t y . W h i l e the Convention creates a new institutional space
for the "expression of otherness," it also perpetuates an area of
struggle for First Nations children.

^**Barry Morris, "The Politics of Identity; From Aborigines to the First
Australian," in Jeremy Beckett, ed.. Past and Present; The Construction of
Aboriginalitv (Canberra; Aboriginal Studies Press, 1988), 84.
^“Richard Falk, "The Struggle of Indigenous Peoples and the Promise of
Natural Political Communities," in Ruth Thompson, ed.. The Rights of Indigenous
Peoples in International Law (Sask; diversity of Saskatchewan Native Law Centre,
1987), 60.

79

Chapter Five
Conclusion

I return to the beginning of this study, wherein the central
question of this analysis was put forth: Is the Convention an
appropriate and effective instrument to protect and promote the
rights of First Nations children?

I submit that, insofar as the

Convention recognizes indigenous children as objects of protection,
it does so clearly.

With respect to the empowerment of rights,

through the protection and promotion of their rights, this analysis
has suggested that the Convention is am ineffective instrument.
The theory of rights, rooted in the individual pursuit of
life, liberty and property, runs contrary to the essence of First
Nations being.

Further, the plurality of legal codes gives rise to

competing rights.

As Olsen argues,

[t]he Convention is indeterminate insofar as it
supports flatly conflicting and contradictory
rights. Children's rights to care conflicts with
their right to autonomy, their right to formal
equality with their right to autonomy, their and
others' rights to security with their and others'

80

right to freedom of action, and their rights
with the rights of others, especially mothers.
For First Nations children,

I would add the right to their

indigenous identity with their rights as children.

For them, the

Convention represents only a partial interpretation of who they
are.
Lastly, I reiterate that the universality of rights creates a
myth of rights for First Nations children.

The lack of "subject

positioning" renders it an inappropriate and ineffective instrument
to protect and promote their rights.
The historic and material assumptions on which the Convention
is based do not allow for the inclusion of the lived experiences of
First Nations children.

The introduction of children's rights,

however noble the intention, closes up a space for alternative
conceptions of social relations.

As Michael King and Christine

Piper assert in examining the issue of children as bearers of
rights,
[t]o see social relations in terms of rights is
all to structure and understand the world in a
very different way than to evaluate them, for
example, according to the level of love or
trust they contain.-®^
^®K)lsen, “Feminist Approaches to Children's Rights," 195.
^^Michael King and Christine Piper, How the Law Thinks about Children
(Dordrecht: Martinus Nijhoff Publishers, 1992), 69.

81

For

First Nations

children,their

social

relations

categorized for them in a manner which devalues who they are.
are forever caught

in competing

are
They

discourses, not only in the

attendant conflictual positions posed by positive rights, but in
their ethnicity.

As with class and gender, ethnicity is a factor

in determing what is best for a child.
Canada's first report to the Commission pertaining to the
first five years of the implementation of the Convention contained
some information on the status of First Nations children. This
would seem to

be an indication of Canada's adherence to the

Convention, an attempt to redress the wrongs of the past, and
fulfil its moral obligation among States with respect to Canada's
children. The Commission responded with further questions regarding
First

Nations

community's

children,

concern.

an

Six

indication
out

of

the

of

the

international

twenty-nine

pertained to First Nations children. In the end,

questions

however, the

report of the International Committee on the Rights of the Child
lauded Canada's "general strengthening of the protection of human
rights, particularly children's rights through the Csuiadian Charter
of Rights and Freedoms and through the adoption of legislative

82

measures in the field of children's rights."^”

This statement was

made in spite of the report's conclusion regarding the state of
Canada's First Nations children:
While recognizing the steps already taken, the
Committee notes with concern the special problems
still faced by childen from vulnerable
and disadvantaged groups, such as aboriginal
children, with regard to the enjoyment of
their fundamental rights, including access to
to housing and education.
The

Committee

suggested

strengthening

efforts

such

that

aboriginal children may "benefit from positive measures aimed at
facilitating access to education and housing.

Research should be

developed on the problems with respect to the growing rate of
infant

mortality

and

suicide

among

children

and

aboriginal

communities.
I suggest that while their intentions are clear, their efforts
are misguided. The rights of First Nations children are profoundly
political and intrinsically linked to the current struggle of First
Nations to self-determination and self government.

They cannot be

extracted from the social, political and legal discourses deployed

“^CRC/C15/Add.37, 2, as excerpted in Samders, "International Human Rights
Law, Spring 1996," Al-S-1.
^«CRC/ClS/Add.37, 4.
“SCRC/C15/Add.37, 5.

83

by both the dominant and First Nations societies.
to which their rights are guaranteed,

And the extent

protected and promoted

depends on the level to which the State interprets Section 35 of
the Canadian Constitution.

In essence, First Nations children's

mortality rate, literacy level, morbidity rate, child abuse, and so
forth, depend on the political processes involved in renegotiating
the past. For First Nations children, the Convention symbolizes a
domain of political struggle. As the Native Council of Canada
commented when asked to take part in preparing the State's response
to the commission, "we appreciate that the Convention is the result
of a political process ... we have been asked to comment on a
process that we were not part of, but will most certainly be
affected by."^®*
To close, I support Olsen's assertion that "[t]he Convention
fails to the extent it fails to challenge the categories through
which we understand the world.

If we continually conceptualize

and speak of ideas such as the rights of children and ethnicity in

“*The Native Council of Canada. "Report by the Native Council of Canada on
Canada's response to the ON Conventionon the rights of the Child," 2.
“’Olsen, "Feminist i^proaches to Children's Rights," 195.

84

their most limited form in traditional categories, it is highly
improbable that something as heralded as the Convention will ensure
the healthy and harmonious development of First Nations children
for seven generations.

85

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of Pennsylvania Press, 1992.
Asquith, Stewart and Malcolm Hill, eds. Justice for Children.
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Children; A CICH Profile. 2nd ed. Ottawa, Canadian Institute
of Child Health, 1994.

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Assembly of First Nations. "To Respect the Child You Must Respect
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view." Canadian Family Physician 41 (1995): 959-960.

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Donnelly, Jack. "Third Generation Rights." In eds. Catherine
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Kline, Marlee. "Child Welfare Law, "Best Interests of the Child"
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