On September 30, the National Day for Truth and Reconciliation, time has been set aside to honour lost children and survivors of Canada’s residential schools. While this is a new statutory holiday, it is not a new day of significance. Since 2013, September 30 has been recognized as “Orange Shirt Day”, the orange shirt symbolizing literally and figuratively what was taken away from Indigenous children at residential schools: language; connection to land, families and ancestors; culture; mental, physical and spiritual health; and, in the most egregious situations, lives.

The evolution of Orange Shirt Day is one of many examples where Indigenous people have led the way and taken on labour beyond their share in educating Canadians. As the late Honourable Lance Finch wrote in a paper almost ten years ago, the “duty to learn” lies with those of us who are non-Indigenous. While this learning needs to take place all year round, September 30 provides time to reflect on the destructive legacy of residential schools. More broadly, the duty Chief Justice Finch talked about was the duty to learn about Indigenous cultures, world views, and legal orders.

In a blog post addressing Indigenous people last year, I wrote, “It is heartbreaking to hear how the justice system has not believed you and has failed you. We need to do better.” This was the case even before the remains of so many Indigenous children were discovered on school sites, confirming what was already known within and beyond Indigenous communities.

To do better, we must go further than learning. We must act.

Both British Columbia and Canada have now affirmed the application of the United Nations Declaration on the Rights of Indigenous Peoples. The Declaration recognizes, among other things, the “right to self-determination”, “the right to autonomy or self-government”, and the right to “distinct political, legal, economic, social, and cultural institutions”. Legislation like Bill C-92 explicitly recognizes the Declaration and the role of Indigenous governing bodies in making child placement decisions for Indigenous children.

One of Access to Justice BC’s priorities this year has been the Transform the Family Justice System collaborative, a broad, new approach that acknowledges the harms the family justice system has caused children and families, both Indigenous and non-Indigenous. The collaborative re-imagines a system that supports healthy families throughout all stages of life, and has engaged several Indigenous voices and perspectives. On transforming the family justice system, Justice Ardith Walkem has said the system must acknowledge that Indigenous children have a right to be continually connected to their culture and to make sure that happens in practice, proposing that the principle of maximum contact with a caregiver be transposed to support maximizing contact with a culture. Jeremy Brooks of the Okanagan First Nation says that a transformed, relationally-based system would start with the principle of “do no harm”, and with the practical necessity of quickness and fairness, and would do so recognizing that there are multiple points of entry for people who seek to resolve disputes. Dr. Sarah Morales emphasizes that because law is grounded in culture, a transformed system will look different for different communities. She says that creating space for Indigenous laws to stand alongside common law traditions will bring about the transformation needed to give Indigenous children and families a brighter future.

It may seem daunting to imagine what it will look like to braid together the legal orders recognized by these rights with those of the common law legal system in British Columbia. How it might look is still undetermined, but I share the hope that the co-existence of Indigenous legal orders with the Canadian legal system will provide a path for action, moving us toward truth and reconciliation.

Leave a Comment