Aboriginal Rights and the Welfare of First Nations Children

Amy Mullin considers the conflict between the duty to respect aboriginal rights and the duty to protect child welfare.

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In the past year, two First Nations families living in Ontario have had to make difficult decisions about their very ill daughters, decisions that have put them in conflict with the recommendation of doctors. Both girls were diagnosed with leukemia and both families chose to forgo potentially life-saving chemotherapy to pursue alternative treatment at a United States facility licensed to offer massage therapy. In the most recent case, the hospital took legal action, seeking to force treatment upon the girl. The family’s decision to forgo chemotherapy was upheld by the Ontario Court, in part, on the basis of aboriginal rights.

These two cases are very complicated. First, both children (aged ten and eleven) are old enough to have views about their own treatment that should be taken into account, but young enough not to be entitled to have those views taken as decisive. In this way, the children were held to be unlike adults capable of making autonomous decisions reflecting their beliefs and values, whose autonomy should be respected. Second, chemotherapy, the recommended treatment, is painful and debilitating, difficult for a child to experience, and difficult for a parent to observe. Third, the parents’ decisions to reject conventional medical treatment flowed not from merely personal views about health and healing, but also from communal values shared by a community that has experienced institutional racism, and that has had children taken from them as a result of this racism.

norval Medicine Man with Bear

Norval Morrisseau, Medicine Man with Bear (1996). Collection of Mr. & Mrs. Kates. Norval Morrisseau: Return to the House of Invention. By Donald C. Robinson. Toronto, ON: Key Porter Books Limited, 2005.

In Canada, custodial parents have rights to make decisions about their children’s welfare, but these rights are based on parental responsibilities. These responsibilities crucially include both an obligation to make decisions motivated by loving care for the child (and hence what parents believe will advance their children’s interests) and an obligation to be reasonable in their judgments about children’s well-being and development – and diligent in working to secure children’s interests.

The decision by the Ontario Court does not concern the family’s commitment to their child’s health, welfare, and future development, but instead concerns the family’s plans to treat the child’s medical condition. The family has rejected the advice of licensed medical practitioners and instead has pursued alternative treatment of a type they find more consistent with aboriginal values, even if not presented by its practitioner as an instance of aboriginal healing practices.

Clearly Canada has a shameful history of disregarding the rights of aboriginal people, and in particular of overriding aboriginal parents’ decisions about the care and well-being of their children, to the point of taking those children from their parents’ care and putting them into situations where those children were abused. It is therefore vital that our courts tread very carefully in making decisions that might repeat that shameful history, by assuming that traditional aboriginal healing practices are inferior to those endorsed by the medical establishment, or by failing to show sensitivity to parents who wish to supplement treatment endorsed by physicians with healing practices based on aboriginal values.

In the news coverage of these cases, the medical institution involved has made public statements about its willingness to show this sensitivity (although I understand that some have questioned the sincerity of this commitment). The medical practitioners have also indicated that their prescribed treatment has a very high chance of allowing the girls to live full and healthy lives, and that the alternative treatment has no proven efficacy.

The Court did not make its decision to allow the family to forgo chemotherapy in favour of alternative therapy on the basis of evidence about the efficacy of the different methods of treatment. Instead the Court made its decision on the basis of the loving motivation of the family and the relation between the mother’s beliefs about the efficacy of the alternative treatment and aboriginal values, and hence the mother’s aboriginal rights.

I acknowledge the complexity of this situation as discussed above: the age of the child, somewhere along the continuum to full autonomy; the painful and lengthy nature of the treatment; and Canada’s history of failing to respect aboriginal rights, which led to a failure in its duty to protect the welfare of aboriginal children. However, these factors do not justify giving greater weight to aboriginal parents’ rights than to the very significant welfare interests of an aboriginal child.

If the child in this case has very little chance of survival without chemotherapy, and a very great chance of surviving and afterwards thriving with that treatment, then this is a difficult case, where a duty to respect aboriginal rights conflicts with a duty to protect a child’s welfare in the face of extremely significant threats to that welfare. However, aboriginal rights should not serve to prevent aboriginal children from receiving the same protection of their welfare interests to which other Canadian children, and indeed all children, are rightly entitled.

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Amy Mullin is a Professor in Philosophy at the University of Toronto.

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