Recommendation #3

Invite Indigenous leaders to co-develop, with A2JBC in the context of the TFJS Collaborative, a strategy in sync with the BC First Nations Justice Strategy and directed specifically at transforming the family justice system for Indigenous families in BC

 

Indigenous participation will be crucial to the success of the Collaborative. There is much that the settler-dominated justice sector can learn from Indigenous law and approaches to promoting child well-being. Applying an Indigenous “lens” in all the work done by the Collaborative will reinforce the proposed holistic paradigm shift that places children and family well-being at the centre, and the family justice system as part of, a larger supportive ecosystem.

There are also good reasons to develop a separate-but-integrated strategy specifically targeted at promoting Indigenous child and family well-being.

The inter-generational and on-going consequences of colonialization and the residential school policy means Indigenous children have inherently high Adverse Childhood Experiences. So the case for transforming the family justice system by focusing it on family well-being is particularly strong when it comes to Indigenous families.

Because the justice system is identified with incarceration of family members and their children being taken away, Indigenous families are less likely than non-Indigenous families to choose to engage with the formal family justice system to manage issues arising from parental separation. That does not mean that Indigenous children do not experience parental separation as a trauma. Also, as with non-Indigenous children but in larger numbers with Indigenous children, family relations issues are intertwined with the court’s involvement in family violence and child protection issues.

In considering Indigenous participation in the Collaborative, the principle of “Nothing about us without us” must be adhered to. For good reason, there is a low level of trust that a nonIndigenous dominated Collaborative will get it right when it comes to the best solutions for Indigenous children. There is concern that an ACEs analysis will be used as yet another reason to take Indigenous children away from their parents.

Working in partnership on family justice issues, with the First Nations Justice Council and other interested Indigenous leaders, is consistent with the understanding that came out of earlier meetings between representatives of the then Aboriginal Justice Council and A2JBC. Because of the Justice Council’s dual priority of fewer Indigenous people incarcerated and fewer Indigenous children in care, and A2JBC’s mandate being the family and civil, not the criminal, justice system, it was acknowledged that the nexus of focus of the two organizations was the child protection justice system.

Recognizing that Indigenous justice will play out at the community level, A2JBC and the Aboriginal Justice Council joined together to support the Cowichan Tribes Justice Project. This is a sub-project within the Cowichan Tribes’ larger initiative to implement sovereignty over its children, which is now being done within the context of Bill C-92 – An Act respecting First Nations, Inuit and Métis children, youth and families that affirms the rights and jurisdiction of Indigenous peoples in relation to child and family services and sets out applicable national principles. This project is potentially a seedling from which to grow a more robust and farreaching partnership in the context of the Collaborative.

While Indigenous perspectives should be infused throughout the Collaborative, it makes sense that there be a part of the Collaborative intentionally tied to BC’s already existing First Nations Indigenous Strategy.* The detailed provisions of that strategy relate more to the criminal than the family justice system, but the two tracks and the principles underlying the FN Justice Strategy are in sync with the objective of the Collaborative to transform the family justice system by focusing on family well-being.

* The BC First Nations Justice Council, First Nations Leadership and Ministry of Attorney General & Ministry of Public Safety and Solicitor General, in consultation with First Nations and their Chiefs and Leadership, First Nations Elders and First Nations communities and service providers, developed the BC First Nations Justice Strategy, which was completed in February 2020, and endorsed by BC’s Attorney General and Solicitor General and the First Nations Leadership Council.

 

It is not necessary to start from scratch, as an Indigenous strategy for the Collaborative can adopt and apply the four foundational philosophies of the First Nations Justice Strategy:

1. Adopting an integrative, holistic, and comprehensive approach that addresses all forms of interaction between First Nations and the justice system.
2. Pursuing two tracks of change at once: Reform of the existing justice system, including “presumption of diversion” from the justice system (consistent with the family justice objective of keeping families, as much as possible, out of contentious court processes) ; and Transformation through the rebuilding of Indigenous justice systems “advancing First Nations self-determination” (the focus of the Cowichan Tribes Justice Project)
3. Being proactive in creating conditions where First Nations people are no longer disproportionately interacting with, nor being impacted by, the justice system (as is the case with the child protection part of the family justice system.)
4. Achieving a 180-degree shift from the current reality of First Nations people being overrepresented in all stages of interaction with the justice system, while at the same time being underrepresented as participants with roles and responsibilities within the system.

The recommendation is that A2JBC build on its existing relationships with Indigenous justice leaders and invite them to co-develop, with A2JBC, an Indigenous strategy for transforming the family justice system for Indigenous families in the context of the Collaborative and in sync with the First Nations Justice strategy.