Rethinking Racine v Woods from a Decolonizing Perspective: Challenging the Applicability of Attachment Theory to Indigenous Families Involved with Child Protection

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This paper is the result of a project with Dr. Choate and social work students at Mount Royal University who sought to challenge the application of dominant society assessment processes with Indigenous Peoples. The project was started in ceremony with Elder Charlie Fox of the Kainai First Nation and involved consultation and closing ceremony with Elder Roy Bear Chief of the Siksika First Nation. Elder Bear Chief also gifted the project the name, Ah Ksis To Wap Siiks (Brave Ones). Tobacco was presented to Elders respecting tradition and value of their wisdom.

1. Introduction

Canada has begun a national conversation regarding the relationship it has with the Indigenous peoples. It is driven by the Calls to Action of the Truth and Reconciliation Commission (TRC)¹ as well as the recent decisions regarding child welfare from the Canadian Human Rights Tribunal.² As a result, there is a rapidly shifting landscape in the area of child intervention. British Columbia has recently announced efforts to allow Metis communities to take responsibility for their own children;³ Treaty 8 Nations in northern Alberta opened up an urban office to be responsible for their children, whether on or off reserve,⁴ and Quebec has entered into discussions with Atimakew First Nation⁵ to shift management of child intervention to the nation. Canada and several provinces have indicated that the underfunding of on-reserve child intervention will stop. This will address the significant challenges First Nations have offering a full range of services, particularly prevention services. In November 2018, Canada announced an intention to introduce legislation, co-developed with Aboriginal peoples, with the stated goal of enacting “the right to self-determination of Indigenous peoples to freely determine their laws, policies and practices in relation to Indigenous child and family services.”⁶

The TRC⁷ has called for child intervention to be done differently. Analyzing how change might occur also requires consideration of the role of the courts. In this paper, we will argue that precedential decisions need to be challenged, as the courts need to see issues from the position of reconciliation and decolonization. Perhaps one of the most significant precedents comes from the Supreme Court of Canada in Racine v Woods.⁸

Discussions about child protection decisions must be...