Part 3 Consequences of Removal Chapter 10 Children’s Experiences

Tribal courts have broad jurisdiction, including criminal law. However, tribal criminal codes cover essentially offences falling within a summary jurisdiction. Major offences, including homicide, rape and drug offences, must be dealt with in a federal court. The Indian Civil Rights Act 1968 restricts the operation of tribal courts by limiting the penalties they can impose to a maximum fine of $US5,000 or one year in prison or both. That Act also imports into tribal law the protections of the US Bill of Rights including criminal law protections with due process guarantees.

The US tribal court system was extensively reviewed by the Manitoba Aboriginal Justice Inquiry (1991) and the Canadian Royal Commission on Aboriginal Peoples (1996a). Clear advantages and disadvantages were catalogued. On the negative side, partly as result of the way they were established, the tribal courts and the codes they enforce are not uniquely Indian. Tribal courts were a form of dispute resolution imposed by the federal government (Canadian Royal Commission on Aboriginal Peoples 1996a page 184). At the same time, the tribal court system is not simply a static creation of the federal government. It is a dynamic system which in some instances has been changing to incorporate Indigenous cultural values. The limits imposed by the federal government have not restricted the development of Indigenous justice systems. For instance, the Navajo Nation has undertaken a program over the last decade to introduce Navajo common law as the law of preference in written opinions, as a means of interpretation of codes and as the source of principles and rules. Traditional justice methods have been adapted through the introduction of a Navajo Peacemaker Court (CanadianRoyalCommissionon Aboriginal Peoples 1996a pages 187-191).

While acknowledging shortcomings of the tribal court system, the Commissioners of the Manitoba Aboriginal Justice Inquiry noted that American Indian tribes were committed to the preservation and expansion of their court system. The system was perceived by tribal members to be, … more understanding of their situation, moreconsiderateof their customs, their valuesand their cultures,more respectful of theirunique rights and status, and likelyto be more fair to them than thenon-Aboriginal justice system has been. In such a situation,where the court has the inherent respect of accused and the community, the impact and effect of its decisions will be that muchgreater …

All this leads us to conclude that tribal courts clearly haveplayed a vital role in meetingthe needs of AmericanIndians for afair, just and culturally acceptable legalsystem (1991 Volume 1 pages 296 and 298).

Canada The Canadian Government has recognised Aboriginal autonomy and self-government and has made specific settlementswith different Aboriginal First Nations including land claim settlements and self-government agreements. The Canadian Government announced in 1995 that it would negotiate with Aboriginal First Nations to define the exact powers to be transferred, the jurisdictions to be exercised and the nature of fiscal responsibilities (Iorns 1996 page23).

The devolution of child welfare and criminal justice, including juvenile justice, to Aboriginal nations has occurred to some extent in a number of areas. A number of Aboriginal self-government agreements which have been negotiated, including four Yukon agreements, have explicitly included jurisdiction over child welfare matters.

A joint approach to criminal justice issues is being developed in some Aboriginal nations (Iorns 1996). As a result of the Yukon self-government agreements, the Yukon First Nations will not unilaterally exercise power over the administration of justice for at least ten years, during which time power can only be exercised subject to a separate joint justice agreement (page 25). A different approach has been taken by the Sechelt Peoples who were granted self-government under Federal legislation. The Sechelts have been granted almost total control of their affairs including their own constitution. The arrangement attempts to replace externally imposed authority with ‘internally legitimised tribal authority’ (ALSWAsubmission 127 page 221).

The Canadian Royal Commission on Aboriginal Peoples considered at length the relationship between Indigenous self-determination and the development of native criminal justice systems including juvenile justice. The Commission concluded,

TheAboriginal rightofself-government encompasses therightof Aboriginal nations to establish and administer theirown systems ofjustice, including the power to make laws within theAboriginalnation’s territory ...

Theright to establish a system of justice inheres in each Aboriginalnation.This does not preclude Aboriginal communities within thenation from sharing in the exercise of this authority. It will be for thepeopleof each Aboriginal nation to determine the shape and form of theirjusticesystem and the allocation of responsibilities within thenation (1996apage 177).

The Royal Commission report does not offer a ‘blueprint’ by pre-determining or circumscribing the shape of Aboriginal justice systems. The Commission recognised that Aboriginal justice initiatives have tended to be small scale and developed on an ad-hoc basis. ‘Often these initiatives fight the same battles over and over again with different orders of government and with differing results and almost always operating with limited budgets and under the shadow of a pilot program mentality’ (page 179). In addition the Royal Commission recognised that different Aboriginal nations and communities will have different preferences and timetables for change.

Somemay wish to givepriority to justice processes that takeplace outside the courtroom; others may see thedevelopment of anAboriginal court system as more responsive to the problems facing them; yet others may wish toproceed alongbothpaths simultaneously to ensure that thesystem works in an integrated and complementary fashion. It is not our purpose topredetermine or circumscribe choice but rather to create conceptual and legal spacefor these developments to occur (page197).

The Royal Commission was primarily concerned with providing a framework for the development of Aboriginal justice systems on a more comprehensive basis. It therefore considered in detail the jurisdictional basis for establishing Aboriginal justice systems (pages 219-257). It found that Aboriginal people’s inherent right of self-government is recognised and affirmed in section 35 of the Canadian Constitution Act 1982. The right is not absolute and is exercised within the framework of Canada’s federal system. It encompasses the right of Aboriginal nations to establish and administer their own systems of justice including the power to make laws within the Aboriginal nation’s territory (page 310).

The Royal Commission concluded that ‘Aboriginal jurisdiction in relation to justice should be treated as a right; the exercise of that right should, however, be progressive and incremental, dependent upon the choice, commitment and resources of each Aboriginal nation’ (page 257). The 18 recommendations on criminal justice provide a framework for facilitating the development of an Aboriginal jurisdiction. The first of these is that, Federal,provincial and territorial governments recognize the rightofAboriginal nations to establish and administer theirown systems ofjusticepursuant to their inherentright of self-government, including thepower to make laws, within theAboriginalnation’s territory (page 312).

Other recommendations provide that Aboriginal justice systems should have a choice concerning the types of matters they will determine and which offenders will come before them. Offences and offenders not dealt with by the Aboriginal justice system would be dealt with by the non-Aboriginal justice system. Non-Aboriginal residents within Aboriginal jurisdictions should have a choice of where their case will be heard except if the offence is unique to the nation’s system and is designed to protect cultural values.

The Royal Commission recommended that Aboriginal justice systems should include an appellate structure with a pan-Canadian Aboriginal appeal body. Appeals from that body would be to the Canadian Supreme Court. There should be negotiation between federal and provincial governments and Aboriginal nations for agreements to govern the nature of Aboriginal justice jurisdiction, the establishment of Aboriginal charters to supplement the Canadian Charter of Rights and Freedoms and the need to prioritise the interests of Aboriginalwomen and children in the development of Aboriginal justice systems.

Recommendations In Canada and the United States governments have shown their willingness to depart from the culture of control which has characterised relationships between Indigenous peoples and colonial societies. The change in attitudes in the Canadian context is evident in the inter-governmental negotiations between Indigenous peoples on a regional basis. The governments of Canada through creative and inclusive federalism have recognised Indigenous Canadians’ jurisdiction in a broad range of areas including those affecting children’s well-being. They have also acknowledged and made a commitment to negotiating self-government on a local and regional basis with Indigenous peoples.

Given the vastly different circumstances ofAboriginalpeoples throughout Canada, implementationof the inherent right cannotbeuniform across the country or result in a ‘one-size-fits-all’ form of self-government (Government of Canada1995page4).

The Canadian Government’s range of negotiation options include Indigenous Canadians living on and off a land base.

Metis and Indiangroups livingoff a land base have longprofessed theirdesire for self-government process that will enable them to fulfil their aspirations to control and influence the importantdecisions that affect their lives(Government of Canada1995page 19).

In contrast to the Canadian experience, Australian ‘self-governance’ models have been established within paternalistic legislative frameworks in which limited powers are delegated and functions are performed with inadequate resources, often in adverse circumstances.

Self-determination and responsibility for children Self-determination can take many forms.It could involve a regional agreement and/or the establishmentof regional authorities.2 Alternatively, it may take the form of community constitutions. It can cover a range of areas includingmatters dealing with children and juveniles.3 There are many possibilities from the exercise of local government style powers through to the development of State-like powers within the federal structure.

The Northern Land Council provided the Inquiry with a view of self-determination which implied full self-government.

By self-determinationwe meanfar more than theforms of quasi-control allowed through certaingovernment institutions such as ATSICorcommunity government councils in the NT. This may include specialfunding arrangements with Commonwealth,states and territory governments(submission 765 page 16).

Some communities or regions may see the transfer of jurisdiction covering juvenile justice, welfare and adoption as central to exercising self-government. Others may wish to work within the existing structure modified to provide legislative recognition of the right of Indigenous organisations to have the key role in the decision-making processes. The level of responsibility for children which Indigenous communities wish to take must be negotiated by the communities themselves.

Many submissions to the Inquiry supported this approach.

Self-determination[is] the right of Aboriginal people tobuild mechanisms withinourown communities for dealingwith a rangeof issues that everybody else deals with at the moment on ourbehalf.

Even if a childcommits an offencewithin thecity area or the community, we arenot saying that nothing shouldbedonewith that child,but we do believe that whatever punishment, or whatever outcome of that childbeingpickedup bypolice or authorities, is not a matter for the authoritiesor thepolice or the courts to deal with.It is really a matter for theAboriginal community. Unlesswe are given theright and we are entrusted and given the opportunity to build up the mechanisms withinour community to deal with these issues there is no end in sight …

If we are going to break down thatsystemthere has got to be abeginning wherethe Aboriginal community is able to build up themechanisms. One of the reasons why we cannot deal with it at the moment is that we havenever beengiventhe chance and we havenever been resourced, we haveneverbeen given the trust, andnever really had the opportunity …

[There are] some ad hoc arrangements that takeplacehereand elsewhere inAustralia, where thedepartmentdoes notknowwhatto do with our kids, whenthepolice do not know what to do with our lads on the street,they dump them on us.Now,we try as bestwe can to cope with that issue, but if it wasdone more formally and a structure set up so theAboriginal community canbuild up over a periodof time our abilityand our mechanisms to dealwith this issue then … It doesnotmatter whichAboriginal child is taken away from its parents,or pickedup bypolice or the authorities, you take them to theAboriginal community to bedealt with and you exclude the operation of thegeneral law.

Now, there may be some limitation on that.It dependson the severity of the issues which gave rise to the child attracting the attentionof the authorities ... In thenext fiveor ten years itmay well be impossibleforthe Aboriginalcommunity to deal with some youthwhohave been involvedin some very,very seriousoffences andso there may be limitationson the sortsof thingsthat we dealwith,but it seems to me that shouldnot stop negotiations taking place betweenthe Aboriginalcommunity and governments as to where those limitationsare and how the mechanisms can bebuilt up between and withinAboriginal communities (Michael Mansell, Tasmanian Aboriginal Centre, evidence325).

The Aboriginal Legal Service of WA recommended ‘that Local, State and Commonwealth governments facilitate the transition of identified Aboriginal communities to limited or complete self-government (or any other plan that is considered appropriate forthe particular community), including any legislative reform, training, infrastructure developmentor provision of any other assistance that may be required’ (submission 127 page 222). Tangentyere Council (NT) called for a change in the ‘structural relationship of Aboriginal people to the State’ (Tangentyere Council submission 542 page 4).

Link-Up (NSW) drew the Inquiry’s attention to Canadian Children’s Services. ‘The destiny of Aboriginal children should be determined by Aboriginals as is the case in the Canadian First Nation Peoples Children’s Services’ (Link-Up (NSW) submission 186 page 176).

The Kimberley Land Council and Broome and Derby Working Groups (WA) both stated,

…we believe that control shouldbeplaced in the handsofAboriginalpeople themselves, not government departments. Aboriginalpeople are in a position to assess the situation of clients and determine howbest todeal withproblems and can drawon their knowledgeof extended families, Aboriginal traditionand culture toprovideindigenous ways ofdealing with crises situations (submission345 page 28 and submission518).

ATSIC noted that in ‘both current policies, and the development of new policies in relation to Indigenous children, governments must consolidate the principles of self-determination and empowerment’ (submission 684 page42).

Before informed decisions can be made there needs to be proper negotiation between government and Indigenous communities and organisations relating to self-determination in juvenile justice, welfare and adoption matters. Communities must be in a position to make choices about what they see as suitable long-term solutions to particular issues.

There are no insurmountableconstitutional, legal or administrative barriers to transferring or sharing jurisdiction. The development of night patrols in Tennant Creek and Alice Springs in the NT are practical examples of Aboriginal people taking initiatives and exercising a level of control in the maintenance of law and order. They establish that core functions can be shared to the satisfaction of Indigenous people and government authorities. These are practical examples of shared jurisdiction in maintaining law and order (Dodson 1996 pages 62-63).

Funding

In 1992 the Council of Australian Governments endorsed a ‘National Commitment to Improved Outcomes in the Delivery of Programs and Services to Aboriginal Peoples and Torres Strait Islanders’. This commitment arose from an agreement by all levels of government on the need for co-ordination of delivery of programs and services to Aboriginal and Torres Strait Islander peoples. Guiding principles of this agreement are empowerment, self-determination and self-management by Aboriginal and Torres Strait Islander people. The commitment is consistent with a co-operative approach which recognises the responsibility of all levels of government for the delivery of services to Indigenous people.

States and Territories currently have responsibility for welfare and juvenile justice services to all sectors of the community. The Commonwealth has special responsibility to Indigenous people under the ‘races power’ in the Constitution and under human rights treaties ratified under the ‘external affairs power’. Shared financial responsibility for the implementation of the recommendations of this Inquiry is required to fulfil these State, Territory and Commonwealth responsibilities. The need for proper funding was endorsed by the Social Responsibilities Commission of the Anglican Church.

Itwillnot be possible for the AustralianStates to implement ... minimum standards without additional fundingfor training and for the support of Indigenouscommunities. Indigenous communitiesmay not have the necessary expertiseorresources initially to fulfil their roles in arrangements giving them moredirect control over services... control over services is not a euphemism for poorquality provision(submission525 page 11).

The provision of funding must take cognisance of the principle of self-determination. Funding arrangements have been criticised for their excessive legality and complexity, onerous reporting provisions, failure to acknowledge organisations intellectual property. Indigenous organisations wherever possible should be the decision makers or at a minimum have primary input into funding decisions.

Other human rights Australia has ratified many international conventions which establish human rights standards to which Australia is required to conform. Indigenous people in Australia have increasingly looked to international conventions to offer protection from discrimination and promotion of human rights (Dodson 1993).

A number of submissions called on the Inquiry to consider and incorporate the provisions of the United Nations Convention on the Rights of the Child (CROC) which was ratified by Australia in 1990. The Aboriginal Legal Service of WA noted that the Convention imposes an obligation on governments to protect the family unit, the interest of children growing up in a family where possible and the right of individuals to a family life. ‘Children, like adults, have rights to freedom from arbitrary interference with family life, freedom from arbitrary detention, liberty of the person and freedom of choice of residence’ (submission127 page 359).

Article 3.1 of CROC states that ‘in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. CROC envisages thatit will normally be in the child’s ‘best

interests’ to be brought up with his or her birth family and by both parents (articles 9 and 18). CROC also recognises a right of the child to inherit and participate in the culture(s) into which he or she was bornand an obligation on the state to provide assistance where children are removed from their cultural environment (articles 8.1,20, 29.1(c) and30).

Article 20.

1.A child temporarily or permanently deprivedof hisorherfamily environment, or in whoseown best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance providedby the State.

3. …when considering solutions, dueregard shall be paid to thedesirability of continuity in a child’s upbringing and to thechild’s ethnic,religious, cultural and linguistic background.

Article 30.

In those States in which ethnic, religious or linguistic minorities orpersons of indigenous origins exist, a childbelonging to such a minority orwho isindigenous shall not bedenied the right, in community withother members ofhis orher group, to enjoyhisorher culture, to profess and practise his or herownreligion, or to use his or her own language.

According to the ALSWA ‘these principles create a double issue in regards to Aboriginal youth, in that they are to be protected both as children and as members of an Indigenous culture’ (submission 127 page 360).

Article 12 of CROC recognises the child’s right to have the opportunity to express his or her views in any judicial or administrative proceedings which affect him or her, provided the child is capable of forming views. The views of children should be given weight in accordance with their age and maturity.

Self-determination Recommendation 43a:That the Council of Australian Governments negotiate with the Aboriginal and Torres StraitIslanderCommission, the Aboriginal and Torres Strait Islander Social Justice Commissioner, the Secretariat of National Aboriginal and Islander Child Care and the National Aboriginal and Islander Legal Services Secretariat national legislation establishing a framework for negotiations at community and regional levels for the implementationof self-determination in relation to the well-being of Indigenous children and young people (national framework legislation). Recommendation43b:That the national framework legislation adopt the following principles. 1.That the Act binds the Commonwealth and every State and Territory Government. 2.That within the parameters of theAct Indigenous communities are free to formulate and negotiate an agreement on measures best suited to their individual needs concerning children, young people and families.

3.That negotiated agreements will be open to revision by negotiation. 4.That every Indigenous community is entitled to adequate funding and other resources to enable it to support and provide for families and children and to ensure that the removal of children is the option of last resort. 5.That the human rights of Indigenous children will be ensured. Recommendation 43c:That the national framework legislation authorise negotiations with Indigenous communities that so desire on any or allof the following matters, 1.the transfer of legal jurisdiction in relation to children’s welfare, care and protection,adoption and/or juvenile justice to an Indigenous community, region or representative organisation, 2.the transfer of police, judicial and/or departmental functions to an Indigenous community,region or representative organisation, 3.the relationship between the community, region or representative organisation and the police, court system and/or administration of the State or Territory on matters relating to children, young people and families including, where desired by the Indigenous community,region or representative organisation, policy and program development and the sharing of jurisdiction, and/or 4.the funding and other resourcing of programs and strategies developed or agreed to by the community, region orrepresentative organisation in relation to children, young people and families.

National minimum standards Indigenous organisations must have a key role in policy development and program delivery and in decision-makingin individual cases concerning children, whether juvenile justice, child welfare or adoption, either within a self-government framework or within the existing State or Territory legal framework. The right of Indigenous peoples to self-determination requires this.