Abstract
This chapter examines the distinctive characteristics of customary adoption and its links with the statutory process. Its purpose is to identify the differences between the legal functions of both systems and to consider their significance in terms of law, policy and practice. As both systems now operate within the larger frame of reference provided by an ever-growing body of international law, the chapter begins by outlining and considering the bearing of such law on the culture, family life and the practice of adoption in indigenous communities. It then proceeds by examining in turn the experience of adoption among the Indigenous People of Australia, the Māori of New Zealand and the Inuit of Canada. The chapter concludes with a summary and assessment of the more distinctive and significant characteristics of the contemporary adoption process in an indigenous context up to and including 2014.
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Notes
- 1.
Signed 18.12.1972, ratified 13.08.1980.
- 2.
Signed 12.11.1968, ratified 28.12.1978.
- 3.
Ratified 19.05.1976.
- 4.
Signed 18.12.1972, ratified 10.12.1975.
- 5.
Signed 12.11.1968, ratified 28.12.1978.
- 6.
Ratified 19.05.1976.
- 7.
The International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.
- 8.
See, also, Articles 5, 20 (particularly 20.3) and 30.
- 9.
Australia signed and ratified on 25 September 1998. Canada signed on 12 April 1994 and ratified on 19 December 1996. New Zealand ratified on 18 October 1998.
- 10.
At the 11th session of the Working Group 2005/06, the Chairperson Mr. Luis-Enrique Chavez (Peru) prepared a compilation of proposals submitted and discussed during the 10th session, which formed the basis of negotiation. The Declaration, adopted by the U.N. Human Rights Council in June 2006 is the exact version proposed by Chairperson Chavez.
- 11.
In the eighteenth century, Captain Cook considered he was entitled to take possession of the continent and all its creatures and resources in the name of the British Crown. The full ownership of the continent remained vested in Great Britain until transferred to the government of Australia when the latter acquired Dominion status.
- 12.
See, Department of Aboriginal Affairs, 1981. ‘Aboriginal’ or ‘Indigenous’ incorporates three distinct elements: descent, self-identification and community acceptance.
- 13.
Prior to 1971, Torres Strait Islanders were often classified as Polynesian or Pacific Islanders and counted as such in official counts. The Commonwealth working definition was extended to include Torres Strait Islanders in 1972 but it was not until the 1996 Census that individuals could identify as both Aboriginal and Torres Strait Islander.
- 14.
There can be little doubt that very few Indigenous birth parents gave what would now be recognised as a full and informed consent—even if some did sign certain papers.
- 15.
See, for example, Boyce, J. 2003. For the record: Background information on the work of the Anglican Church with Aboriginal children and directory of Anglican agencies providing residential care to children from 1830 to 1980. Anglicare Australia, Melbourne.
- 16.
See, Bird, C. 1998. The stolen children; their stories. Milsons Point: Random House, at p. 1.
- 17.
This Convention was ratified by Australia in 1951.
- 18.
See, Behrendt, L. 2003. Achieving social justice. Sydney: The Federation Press, at p. 68.
- 19.
See, for example, the report of the South Australian Aboriginal Child Care Agency which estimated that 95 % of all ACCA adoption cases broke down and that:
… this is reflected throughout the country … 65 % of these breakdowns occurred in the adopted child’s teenage years when their adoptive parents were unable to cope with their problems of alcohol abuse, offending behaviour, drug abuse, depression, self-destructive behaviour, emotional stress and identity crisis.
- 20.
See, The Human Rights and Equal Opportunity Commission. 1997. Bringing them home: A guide to the findings and recommendations of the national inquiry into the separation of aboriginal and Torres Strait Islander children from their families. Australian Government Publishing Service. (http://www.austlii.edu.au/au/special/rsjlibrary/hreoc/stolen/). The factual basis of this report was memorably illustrated in the film The Rabbit Proof Fence.
- 21.
See, The Federal Government submission to the Senate Legal and Constitutional References Committee on the Inquiry into the Stolen Generation, 1997.
- 22.
See, for example, Kruger v. Commonwealth (1997) 190 CLR 1 and Cubillo v. Commonwealth (2000) 174 ALR 97.
- 23.
See, Queensland Government. 2003. The adoption legislation review: Public consultation. Department of Families, which notes that:
A key theme in the consultation forums with Aboriginal and Torres Strait Islander peoples throughout the State was that adoption, as conceived in the Adoption of Children Act 1964, is not a culturally appropriate care option for Aboriginal and Torres Strait Islander children, at p. 3.
- 24.
See, for example, the views expressed by Dr. Bath, the Children’s Commissioner for the Northern Territories, on 5th May 2013: “We have an absurdly high threshold for intervention … Children who in any other jurisdiction would come under the purview of child protection authorities don’t in the Northern Territory, unless their situation is very extreme” at: http://www.news.com.au/national/aboriginal-adoption-ignores-culture/story-fncynjr2-1226642417660
- 25.
Aboriginal children are over represented in the public child care system. In June 1998, for example, 14.2 Aboriginal children per 1,000 aged between 0 and 17 years were in care; this was 5 times the rate for other children.
- 26.
See, The Australian Bureau of Statistics. 2008. The health and welfare of Australia’s aboriginal and Torres Strait Islander peoples, at: http://www.abs.gov.au/AUSSTATS/abs@.nsf/39433889d406eeb9ca2570610019e9a5/868BC5C7B6F3A3C0CA2574390014CFD7?opendocument
- 27.
See, further, The Law Commission. 2000. Adoption and its alternatives: A different approach and a new framework. Wellington: Law Commission, at paras H7—H18. Also, see, Ban, P. 1997. Slow progress: The legal recognition of Torres Strait Islander customary adoption practice, 4(7) Indigenous Law Bulletin 11 (1997).
- 28.
By the late 1970s, Aboriginal and Islander Child Care Agencies were established throughout most of Australia to control child care services for Aboriginal people.
- 29.
The Principle has received specific legislative endorsement in the Australian Capital Territory, South Australia and in Victoria. Note the resonance with US law: the Indian Child Welfare Act 1978 limits placement to the child’s family, members of the tribe or other Native American families.
- 30.
Note: Placement with a non-Aboriginal prospective adoptive parent requires an application to the Court for a preliminary hearing-see section 80.
- 31.
The Report of the New South Wales Law Reform Commission (1997) examined the effectiveness of the Principle in placing Aboriginal children with Aboriginal people for foster care and adoption in all states and territories. It concluded that the Principle most strongly influences practice where it is incorporated into statute law.
- 32.
See, Queensland Government. 2003. The report: Public consultation on the review of the adoption of children act 1964. Department of Families.
- 33.
Ibid, at pp. 19–20.
- 34.
Ibid, at p. 17.
- 35.
This policy and the minister’s support for it have been denounced by some as threatening to initiate a ‘new stolen generation’. See, further, at: http://www.telegraph.co.uk/news/worldnews/australiaandthepacific/australia/10055771/Aboriginal-adoption-plan-prompts-new-fears-of-a-stolen-generation.html
- 36.
See, The Community Services Minister Pru Goward interview on ABC Radio (Thursday, March 20th 2014), at: http://www.theaustralian.com.au/news/latest-news/no-forced-adoption-for-aboriginal-children/story-fn3dxiwe-1226860324697
- 37.
See, Queensland Studies Authority. 2010. Aboriginal and Torres Strait Islanders studies handbook. Brisbane, p. 16, at: http://www.qsa.qld.edu.au/downloads/senior/snr_atsi_10_handbook.pdf
- 38.
See, The Human Rights and Equal Opportunity Commission. Bringing them home, op cit.
- 39.
See, New South Wales Law Reform Commission. Research report 81, (1997) at chapter 9.
- 40.
See, Marshall and McDonald, op cit at p. 148.
- 41.
See, Lara v. Marley [2003] FamCA 1393.
- 42.
A retranslation of the Māori text of the whole Treaty can be found in the judgment of Cooke P in New Zealand Māori Council v. Attorney General [1987] 1 NZLR 641, 662–3.
- 43.
See, Law Commission, Report 53. Justice—The experience of Maori women. Wellington: Law Commission, 1999; ‘tangata whenua’ literally means ‘people of the land’.
- 44.
See, Statistics of New Zealand. 1996. Census of population and dwellings. Wellington.
- 45.
See, for example, Durie-Hall, D., and Dame J., Metge, Kua Tutu Te Puehu, Kia Mau. 1992. Maori aspirations and family law. In Family law policy in New Zealand, ed. M. Henaghan, and W. Atkin, 54–82. Oxford: Oxford University Press.
- 46.
See, Hineiti Rirerire Arani v Public Trustee (1919) NZPCCI, per Phillimore LJ.
- 47.
Sir John Salmond’s notes on the Bill as cited in the Law Commission report, op cit, at para 185.
- 48.
See, The Law Commission report, op cit, at para 190. See, also, Whittaker v. Maori Land Court [1996] NZ FLR 163.
- 49.
See, Durie-Hall, D., and Dame J., Metge, Kua Tutu Te Puehu, Kia Mau. Maori aspirations and family law, op cit pp. 54 and 59.
- 50.
Ibid, at p. 79.
- 51.
The paramountcy principle has been upheld in cases such as Hamlin v. Rutherford (1989) 5 NZFLR 426.
- 52.
See, further, D v. W (1995) 13 FRN 336 (HC), per Fisher J.
- 53.
See, K v. G [2005] 3 NZLR 104 (HC) and B (CA204/97) v. The Department of Social Welfare [1998] 16 FRNZ 522 (HC).
- 54.
See, for example, Ryburn, M. who has described New Zealand as “leading western practice with respect to openness” (1994).
- 55.
See, Law Commission, Report 53, Justice—The experience of Maori women, op cit, at para 90. Also, see, Ernst, J. Whanau knows best: Kinship care in New Zealand. In Kinship foster care: Policy, practice and research, ed. R.L. Hegar, and M. Scannapieco. New York: Oxford University Press, 1999.
- 56.
See, B v Director-General of Social Welfare, [1997] NZFLR 642, per Gallen J and Goddard J.
- 57.
Also cited as KT v. L and RB and Anor HC WN CIV-2010-485-000561 [24 August 2010].
- 58.
Citing, Metger, J., and J. Ruru. 2007. Maori aspirations and family law policy. In Family law policy in New Zealand, 3rd ed., ed. M. Henaghan, and B. Atkin. Wellington: Lexis Nexis, at p. 52.
- 59.
See, Law Commission. 2000. Adoption and its alternatives: A different approach and a new framework. Wellington: Law Commission, at para 180.
- 60.
See, In re Tukua and Maketu C2B Block (10th March 2000, 116 Otorohanga MB 81) Carter J for a determination of whangai status.
- 61.
As cited in Keane, B., Whāngai—Customary fostering and adoption—Whāngai in modern times, Te Ara—The encyclopedia of New Zealand, updated 8-Apr-14. See, further, at: http://www.teara.govt.nz/en/whangai-customary-fostering-and-adoption/page-4
- 62.
See, Durie-Hall, D., and J. Metge, Kua Tutu Te Puehu, Kia Mau. 1992. Maori aspirations and family law. In Family law policy in New Zealand, ed. M. Henaghen, W. Atkin. Auckland: Oxford University Press.
- 63.
See, Law Commission. Report 53, Justice—The experiences of Maori women. Wellington: Law Commission, 1999, at para 83 citing Griffith, K.C., New Zealand adoption history and practice, social and legal 1840–1996, at para 9.
- 64.
See, Canada (Human Rights Commission) v. Canada (Attorney General) 2012 FC 445 at para 334.
- 65.
See, Census statistics for 2011: The population of Nunavut has increased by 8.3 % since the last census in 2006; a growth rate twice the national average.
- 66.
An Act to amend and consolidate the laws respecting Indians, S.C. 1876, c 18; amended to make attendance compulsory.
- 67.
Ibid, s 2(1) states that:
‘child’ in this Act includes a legally adopted child and a child adopted in accordance with Indian custom.
- 68.
See, for example, The Royal Commission on aboriginal peoples: Looking forward, looking back. Ottawa, 1996.
- 69.
See, Stolen Generations, a local Aboriginal nonprofit group, which in 2002 began a project dealing with the adoption process affecting Aboriginal people across Canada. The project was funded by the Aboriginal Healing Foundation and sponsored by the Ma Mawi WI Chi Itata Centre Inc.
- 70.
See, The Law Commission of Canada. 2005. Restoring dignity: Responding to child abuse in Canadian institutions, at p. 51.
- 71.
Ibid.
- 72.
See, Aboriginal Justice Inquiry, 1999 at Chap. 14. The report also notes that “between 1971 and 1981, 70–80 % of Manitoba’s Aboriginal adoptions were in non-Aboriginal homes” at Chap. 14. See, also, The Law Commission report, op cit and Miller, J.R. 1996. Shingwauk’s vision: A history of native residential schools. Toronto: University of Toronto Press.
- 73.
See, Saskatchewan Child Welfare Review Panel Report, ‘For the good of our children and youth: A new vision, a new direction’, at p. 18. See, further, at: http://saskchildwelfarereview.ca/CWR-panel-report.pdf
- 74.
See, speech by the Prime Minister the Hon Stephen Harper on 11 June 2008 Ottawa, Ontario, at: http://pm.gc.ca/eng/news/2008/06/11/prime-minister-harper-offers-full-apology-behalf-canadians-indian-residential
- 75.
See, further, Loukacheva, N. 2012. Indigenous inuit law, “Western” law and northern issues. Arctic Review on Law and Politics 3(2): 200–217.
- 76.
[1972] 5 WWR 203 (sub nom. Re Tucktoo and Kitchooalik) 28 DLR (3d) 483 (NWTCA).
- 77.
Ibid, at p. 198.
- 78.
Tagornak Adoption Petition [1984] 1 C.N.L.R. 185 (N.W.T.S.C.).
- 79.
The Aboriginal Custom Adoption Recognition Act 1994, which came into effect on 30.09.95, was promulgated for the Northwest Territories but also applies in Nunavut.
- 80.
See, Bell, C.E., and R.K. Patterson. (eds.). 2009. Protection of first nations cultural heritage: Laws, policy, and reform. Vancouver: UBC Press, at p. 359.
- 81.
(1975), 57 DLR (3d) 743.
- 82.
See, Poitras, M., and N. Zlotkin. 2013. An overview of the recognition of customary adoption in Canada. University of Saskatchewan, at p. 31.
- 83.
c.9. In force November 01, 1998. SI-016-98.
- 84.
See, Statistics Canada report ‘Aboriginal Peoples in Canada: First Nations People, Metis and Inuit’, 2011, at: http://www.statcan.gc.ca/daily-quotidien/130508/dq130508a-eng.htm?HPA
This report reveals that of the 30,000 children under 14-years-old in foster care in 2011 nearly half were Aboriginal children despite representing only about 4 % of Canada’s population. This indicates that a bad situation is getting worse when comparisons are made with an earlier finding that “about 40 % of the children in the care of the provinces/territories are Aboriginal children” (Bennett, M., and C. Blackstock. 2002. A contemporary view of culturally based social work: Challenges and opportunities. In Canada’s children. Ottowa: Child Welfare League of Canada, at p. 30).
- 85.
See, Canada (Human Rights Commission) v. Canada (Attorney General) 2012 FC 445 which concerned a complaint, lodged 5 years earlier by the First Nations Child and Family Caring Society, alleging that chronic underfunding of child welfare services was a violation of their human rights.
- 86.
(2004), 259 Sask. R. 122.
- 87.
See, Rae, L. 2011. Inuit child welfare and family support: Policies, programs and strategies. Ottawa: The National Aboriginal Health Organisation, at p. 7. Further, at: http://www.naho.ca/documents/it/2012_ICWFS-Policies-Programs-Strategies-Summary.pdf
- 88.
See, The UN Committee on the Rights of the Child, 61st session, C/CAN/CO/3-4, October 2012, at paras 42 and 43.
- 89.
See, Casimel v Insurance Corporation of British Columbia, [1994] 2 C.N.L.R. 22 (C.A.).
- 90.
See, Aboriginal Custom Adoption Recognition Act, S.K.K. v J.S. in which a maternal grandmother who had adopted her granddaughter sought child support from the birth father.
- 91.
Since 1996: some 2000 customary adoptions have been formalised by the courts; approximately 40 departmental adoptions; and perhaps 35 private adoptions to non-Inuit.
- 92.
Source: Peter Dudding, Director, Nunavut Department of Family Services (2014). See, further, at: http://www.nunatsiaqonline.ca/stories/article/65674inuit_orgs_renew_discussion_on_custom_adoption/
- 93.
The term ‘qiturngaqati’ (‘having the same child’) refers to the fact that both birth parent and adopter share the same relationship with the child.
- 94.
See, Saskatchewan Child Welfare Review Panel Report, ‘For the good of our children and youth: A new vision, a new direction’, at p. 22. See, further, at: http://saskchildwelfarereview.ca/CWR-panel-report.pdf
- 95.
2006, MBQB 256 (CanLII).
- 96.
See, Poitras, M., and N. Zlotkin. 2013. An overview of the recognition of customary adoption in Canada. Saskatoon: University of Saskatchewan, at pp. 23–24.
- 97.
See, Re: Tagornak Adoption Petition, [1984] 1 C.N.L.R. 185 (N.W.T.S.C.).
- 98.
See, Roos, H. 2014. The service and capacity review for victims of sexual exploitation and human trafficking in Nunavut. Ottawa. See, further, at: http://news.nationalpost.com/2014/01/30/start-waking-up-report-warns-of-inuit-child-selling-cites-anecdotal-evidence-of-abuse-trafficking/
- 99.
- 100.
[2006] R.J.Q. 2513.
- 101.
[1999] NWTJ No 94, at para 30.
- 102.
See, Silk, J. 1987, September. Adoption among the inuit. American Anthropological Association 15(3): 320–330, at p. 320.
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O’Halloran, K. (2015). Intraculture Adoption. In: The Politics of Adoption. Ius Gentium: Comparative Perspectives on Law and Justice, vol 41. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-9777-1_18
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