Aboriginal Child Welfare, Self-government and the Rights of Indigenous Children: Protecting the Vulnerable Under International Law by Sonia Harris-Short, 354 pp, Ashgate, Farnham, 2012, ISBN 9781409419549 (hbk), $138.60.
This scholarly work in law and history provides a thoroughgoing account of Aboriginal child welfare policies and practices in Australia and Canada. Importantly, Harris-Short links the debates around child welfare to issues of sovereignty, decolonisation and self-government. Arguing for a radical reconceptualisation of approaches to child welfare services in Aboriginal communities, the author sees the recognition of indigenous rights at the international level, through the adoption of the United Nations Declaration of the Rights of Indigenous Peoples which formally acknowledges the colonisation of indigenous peoples, as an opportune moment to shift the paradigm of international and national law. Rather than becoming entangled in arguments over collective rights versus individual rights, she suggests that in combination with other human rights instruments, including the United Nations Convention on the Rights of the Child, a more nuanced approach is achievable.
The book is organised into four parts. Part I sets the context with three personal narrative accounts of children removed from their families and communities in Australia and Canada. The nature of James’s story will be familiar to Australian readers, as it is drawn from the Human Rights and Equal Opportunity Commission’s Bringing Them Home report. The report was, at the time of publication, innovative in the primary use of first-hand narrative accounts as the evidentiary basis for a legal inquiry. Richard Cardinal’s story, the first Canadian narrative, is drawn from a short documentary film about a Métis boy who tragically committed suicide at the age of 17 while under the care of the provincial child welfare system. There is also the story of Lester Desjarlais, a 15-year-old Ojibway boy who committed suicide after years of abuse while under the care of an Aboriginal-controlled child welfare agency.
Part II begins with an historical overview of the policies and practices of Aboriginal child removal to missions, dormitories and residential schools in Canada and Australia, drawing on well-established historiography. Harris-Short clearly places these practices within the general context of colonisation, highlighting the effects not just on individual children and families, but on Aboriginal communities as a whole, inter-generationally, disrupting the continuity of Aboriginal culture. She documents the shift, in the 1950s, to the administration of general child welfare policies. Routine institutionalisation was phased out, and children, particularly those with lighter skin colour, were placed in homes, with fostering and adoption by non-Aboriginal families vigorously promoted. Harris-Short argues that the application of liberal legal standards understood to be in the children’s best interests demonstrate cultural chauvinism because it fails to recognise the importance of Aboriginal cultural identity, including specific child rearing practices.
The last chapter in this section brings us to the contemporary period, where there is evidence of increasing judicial sensitivity and significant legislative reforms, incorporating the Aboriginal placement principle into child protection and adoption law. While significant, as Harris-Short points out, in focusing on the care of children post-removal, such changes have deflected attention away from the more difficult issues associated with the failure of the child protection system and how to avoid the removal of children in the first place. Aboriginal children are vastly over-represented in child protection processes, nine times more likely to be subject to a court order than non-Indigenous children (p. 89). In Canada, legislative reforms in some provinces, such as Manitoba, delegate administrative and management responsibility for child welfare to Métis and First Nations communities. However, this does not extend to the law and had resulted in uneven outcomes in the courts when considering the importance of indigenous cultural identity as a factor in the child’s best interests. Harris-Short suggests that the failure of legislative reforms provides support for arguments that involve restoring authority to Aboriginal communities for self-government over child welfare.
It is to this issue that Part III is devoted. In Canada, there have been moves towards community-driven self-government in certain fields, such as areas of criminal justice, health and social welfare. However, in some communities, the legacy of colonialism has resulted in disintegration and disfunctionality, sometimes with devastating consequences for children exposed to sexual abuse and violence. Harris-Short elaborates on the inquiry into the death of Desjarlais, which found evidence of sexual abuse occurring across reserve communities in Canada. Here, she discusses the effects of internal colonialism on Aboriginal men in leadership positions.
In the final chapter in this section, Harris-Short points out that the theory supporting the inherent right to self-government would provide a platform for indigenous autonomy and governmental powers over internal, and possibly, external matters. In 1982 in Canada, the Constitution was amended to entrench Aboriginal rights, precluding extinguishment after this date (s. 35), thereby providing for the right to self-government, including self-government over child welfare. While the Supreme Court decision in R v Sparrow (1990) suggested the endorsement of an inherent rights approach, this has not been supported by subsequent decisions. Treaty negotiations have been more productive. While courts have largely failed to find the right to self-government, in 1995, the Canadian Government accepted the inherent right to self-government of First Nations peoples and negotiated agreements at the regional level have occurred across the country.
In the face of the failure to deliver self-determination via national mechanisms, the author turns to international law. In Part IV, Harris-Short discusses the UN Declaration on the Rights of Indigenous Peoples. Article 3 of the Declaration contains the unqualified right of indigenous peoples to self-determination. She argues that international law can provide for internal self-determination, while at the same time protecting the individual rights of vulnerable people, if responsibility is vested in the Aboriginal community itself. The individualistic nature of human rights law, respecting, for instance, the child as the subject of rights separate from the community, may be at odds with an indigenous assertion of collective cultural identity. However, Harris-Short argues that the UN Convention on the Rights of the Child, recognising the inter-dependence of the child with family and community, may be the basis for a dialogue over the reconciliation of these principles.
Overall, the book is a significant and thought-provoking contribution to a discussion of indigenous peoples’ right to autonomous control over the welfare of vulnerable children in their communities. Harris-Short is mindful that in Australia, where there is staunch opposition to self-government and in some communities overwhelming challenges, such proposals may strike a hollow chord. However, she asserts that the ‘concept of sovereignty is key’ (p. 287).
University of Technology, Sydney