First Nation appealing ruling to scrap adoption policy

Page 4

A Saskatchewan judge has struck down a down a provincial government policy requiring band approval before First Nations children in care can be put up for adoption.

The Dec. 10 ruling by Madame Justice Jacelyn Ann Ryan-Froslie of the Saskatchewan Court of Queen's Bench found that the province's policy contravened the Canadian Charter of Rights by limiting the rights of First Nation children.

She said the policy works to keep First Nations children from being adopted into non-Aboriginal homes and keeps them stuck in a foster care "limbo."

The case before Ryan-Froslie revolved around five brothers and sisters ranging in age from 13 years to 11 months, who had spent a large part of their lives within the foster care system. While all were described by case workers as adoptable, none of the children had been put up for adoption because, as members of the Sturgeon Lake band, the province's policy required band approval of such a move and no such approval had ever been given.

Once a child is committed to the Minister of Community Resources and Employment through a permanent order, that child is automatically registered for adoption, but not a First Nation child in care. First Nations children are not registered unless their band first gives approval, permission that is rarely given.

While legal counsel for Sturgeon Lake First Nation claimed the band was simply asserting its Aboriginal right to speak for the children in refusing to approve adoption, the judge rejected that argument, stating she found no evidence that such a right was guaranteed under the Charter.

What the Charter does guarantee, in Section 7, is "the right to life, liberty and security of the person." By keeping them in foster care without hope of a permanent adoptive home, the province's policy is in contravention of this Charter right, Ryan-Froslie declared.

"If the policy is followed, the result is that these children are destined to remain in long-term foster care," she wrote in her 50-page judgement. "The policy has been applied arbitrarily and without regard to the individual circumstances or needs of the children. There is potential for serious harm to these children if they are retained in foster care without regard to their best interest. As such, it is clear the children's Section 7 rights to security of the person have been infringed by the policy."

The band is appealing, explained Prince Albert Grand Council Grand Chief Gary Merasty, because it believes that is does have a constitutional right to participate in any decisions regarding the long-term placement or adoption of children from its membership.

"We do strongly believe that it is our right, constitutionally, based on Section 35, that we do have a right to have a say in the youth of our community, of our bands. We do that every day already when it comes to education, health, justice and other programs. So why not in child and family service cases?"

One of the reasons First Nation child and family services agencies aren't able to stay on top of cases involving member children living off-reserve is that they aren't receiving enough money and support from Indian and Northern Affairs Canada, Merasty said.

"It's a real chronic funding issue and our agencies are so overloaded with their on-reserve work that they have no mechanism, no funding and no personnel to work with the province on the off-reserve issues. Not that they don't want to-they want to dearly-but they can't with the chronic under-funding that they experience and the lack of political will on the part of the provincial and federal leaders to establish bilateral or even trilateral communication on proper case management of these children."