For aboriginal children, one set of rights can't trump another

When it comes to children, Canadian society's rightful reaction is to want to be protective of their best interests because they are a vulnerable segment of society.

When it comes to aboriginal children, Canadian society's unfortunate reaction has represented a history of ruling against their best interests as both children and as Aboriginal Peoples.

A recent decision from a court case involving an aboriginal girl with cancer, whose family originally withdrew her from chemotherapy, might have changed some of that.

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The girl, known in the media only as J.J. from Six Nations, gained public attention because her mother refused chemotherapy to treat acute lymphoblastic leukemia (ALL) in favour of pursuing traditional Haudenosaunee medicine.

A court in Brantford, Ont., decided that J.J.'s mother has an aboriginal right to choose to pursue traditional medicine for her daughter.

That decision was controversial because many incorrectly considered the choice as "aboriginal rights trumps children's rights."

This case makes it clear that there is no such thing as an aboriginal right trumping a child's right.- Jocelyn Formsma

Decisions that involve aboriginal children, especially potentially life or death ones, are not easy to make.

Decision-makers need to consider all factors and applicable rights and give appropriate weight to each. All parties involved in this case made it clear that they wanted nothing but the best outcome for J.J.

This case makes it clear that there is no such thing as an aboriginal right trumping a child's right, when for an aboriginal child, they hold both aboriginal and children's rights.

J.J.'s right to access traditional medicine is the same as her right to life and her right to optimal well-being. As seemingly irreconcilable that may seem from an outsider's perspective, these three rights are fused for an indigenous person.

The decision was under threat of appeal for months, but in a rare and admirable move, all of the parties co-operated with each other to propose a clarification to the judge's decision.

The clarification did three things:

1. It demonstrated what positive outcomes are possible when seemingly opposed parties adjust their relationship for the best interests of and outcomes for a child.
2. It outlined that J.J. has an expanded medical team working with her that includes receiving traditional Haudenosaunee medicine and care alongside chemotherapy.
3. It clarified that the best interests of the child are paramount while affirming that aboriginal rights should be a part of a child's best interests and considerations.

Judge Edward Gethin, who made the original judgment, endorsed the clarification.

The significance of the case, both the original decision and the clarification, is that J.J. is recognized as a Haudenosaunee child with equal access to aboriginal rights like any aboriginal person and equal access to children's rights like any other child.

Her rights deserved to be equally considered and weighed and not compete against one another.

Canada's track record not good

Too often, decision-makers forget that children have a broad range of rights to be considered in any decision that is made about them and that children have the right to participate in decisions that affect them.

Canadian history has shown through the residential schools, the '60s scoop and the contemporary child welfare system, that best interests of the child analyses have often been used against aboriginal children in favour of their removal.- Jocelyn Formsma

Canadian history has shown through the residential schools, the '60s Scoop and the contemporary child welfare system that "best interests of the child" (BIOC) analyses have often been used against aboriginal children in favour of their removal.

There may be times when removal of the child is warranted, but not for as long and for the reasons we have come to know looking back on these histories.

Moving forward, any BIOC analysis for aboriginal children should first ask, "What does the child want?" The child should be at the centre of all BIOC analyses. Their right to participate should not be infringed without good reason.

If the child's input cannot be ascertained, then there should be mention of the efforts made to ascertain the child's input and the reasons why it could not be included.

All BIOC frameworks should include special considerations for indigenous children in accordance with their rights as outlined in the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP), the Convention on the Rights of the Child (CRC) and any other rights that an indigenous child has as a member of his or her community.

The relevant articles from the UN DRIP and CRC should be drawn upon based on the facts of the case. The decision-maker then should conduct a cross-comparison of affected right to see if there are any conflicting or competing rights. Any conflicting or competing rights should be balanced in relation to each other to prevent outright infringement.

While we rely on parents, service providers or courts to make decisions for children, it is important that these decisions adequately consider all the pertinent rights in equal weight to one another.

It is not in a child's best interest for decision-makers to pick and choose which rights they think should be considered or given more weight than another right.

We can start a new history with aboriginal children by considering their best interests and understanding and upholding their rights as both children and as Aboriginal Peoples.