Any Nation wishing to intervene in a matter before the courts involving children involved in the child welfare process, a Nation used to be able to bring an application to intervene in accordance with the test set out at common law. However, recent changes to the Child Youth and Family Enhancement Act legislation (“CYFEA”) now potentially restrict the right of First Nations to apply to intervene only on the first appearance, if it is post-Permanent Guardianship Order (“PGO”).
The right to intervene is not guaranteed if the child is not the subject of a PGO as the legislation only speaks to planning and not Band Participation. Under the current legal regime in Alberta, when a First Nation child becomes the subject of child welfare proceedings under the CYFEA, the Nation to which the child belongs does not have a guaranteed right to be involved in the court process.
The law that provides the right for a band to participate does not apply in all circumstances and has gaps that allow for some circumstances that prevent First Nations and Indigenous Groups from having a guaranteed right to be involved in legal proceedings relating to their own children.
At Mincher Koeman, we are aware of the obstacles that the law has put in place, and the gaps in the law when it comes to protecting Aboriginal children and their cultural safety. In confronting this, we work with First Nations groups to take all steps necessary to place them before the court, to make certain that the court and all parties are aware of fully informed about those issues that are most critical to Aboriginal Children. Whether this is simply ensuring that the rights guaranteed under the CYFEA are upheld and adhered to, or by bringing applications to allow an Aboriginal Groups to intervene in a matter where there is no guaranteed right under the law, the lawyers at Mincher Koeman are committed and focused on advancing the right of our Aboriginal clients in being involved in matters engaging their own children.
Under the CYFEA, if a child who is the subject of an application for guardianship by a private individual is a First Nation individual or a member of a First Nation, the person applying for guardianship of the child must serve the child’s Nation with a copy of the guardianship application. This requirement of notice to be served upon the child’s Nation is required regardless of whether the child is a registered member of the Nation or is even just entitled to be a member of the Nation.
However, this right of being provided notice is not absolute. Under this same legal framework, the court may, if it considers it appropriate to do so, do away with the requirement of notice upon a First Nation or Indigenous Group. Nor is the right of a First Nation or Indigenous Group to participate in the legal process absolute or guaranteed. This is because once notice of a private guardianship application is given, the Nation or Indigenous Group only has the right to appear at that first hearing and make submissions to the court as to why they should be permitted to participate in the proceedings. The court has the right and the authority to deny any First Nation or Indigenous Group the right to participate in an application regarding one of their own children.
In cases where a First Nations child is receiving services from the Child Welfare authorities in Alberta, if that child is a registered member of a Nation, then under the CYFEA, the Director of Children’s Services is required to involve a person designated by the council of the Nation in planning for the services to be provided to the child. While this is a mandatory requirement, unlike in the case of private guardianship, this obligation is only triggered if a child is actually registered as a member of a Nation. If the child is entitled to be registered but is not at the time child welfare authorities become involved, then the Director has no obligation to involve a First Nation in helping to plan the most culturally appropriate services for one of their children. Further, even in cases where a Nation is “involved” by the Director in planning for services to be provided to a First Nation child, there are no specific guidelines in place. The rights and authority a Nation has to determine the services for a child once they are involved are not clear, nor is it clear if the Director maintains complete authority and discretion, notwithstanding a Nation’s involvement.
The Canadian Government recently passed Bill C92: An Act respecting First Nations, Inuit and Métis children, youth and families. This Bill seeks to enact laws that grant greater rights of involvement and representation for First Nations and Indigenous Groups when their children are caught up in the child welfare system. Unlike the CYFEA, Bill C92 does not appear to require that a child be registered with any Nation or Indigenous Group, but merely that they are an Aboriginal Person. In all cases, under Bill C92, where child welfare services are being provided to child and the matter goes before a court, the child’s First Nation or Indigenous Group is automatically entitled to be part of such a process and provide representations to the court.
Unfortunately, while Bill C92 has passed and received Royal Assent, it has not yet been determined when the Bill will actually come into force as a federal law. Further, the Bill only provides for the right of First Nations Groups and Indigenous Groups to make representations and does not guarantee such groups the right to provide evidence or call witnesses.
At Mincher Koeman our lawyers have a wealth of experience in assisting First Nations groups in ensuring that their rights under the CYFEA are upheld. We are aware of the limitations that the law imposes on the opportunity for First Nations groups to be involved and ensure that their children are culturally secure and safe. We are aware of the strict timelines that have to be complied with to ensure that any group can intervene under the CYFEA and when those requirements apply.
We act to ensure that Indigenous and First Nations groups are not only heard by the courts but remain involved throughout the process, having the chance to remain engaged in the legal process and provide critical information and evidence to the courts and the parties involved so that the best interests of the child are truly considered from culturally relevant perspectives. In those cases where First Nations and Indigenous groups are not given the right, under the legislation, to attend court and speak to matters involving their own children, our lawyers will act to have the children’s Indigenous or First Nations groups intervene in the legal proceedings outside of the legislation, ensuring that the courts and the parties are aware of the critical and unique information that the Aboriginal Group is able to provide.
Mincher Koeman’s lawyers are incredibly knowledgeable about the Alberta child welfare process, and the unique factors that apply when Indigenous or First Nation children are involved. Our firm is committed to providing assistance to communities seeking to provide guidance and cultural information that is extremely relevant to child welfare investigations and guardianship applications. Please contact our office to make an appointment to discuss your matter with one of our lawyers today by calling us at 403-910-3000 or by contacting us online.
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