Indigenous Exclusion / Resistance and the Convention on the Rights of the Child in Canada

By: Madison Thulien

Introduction

The 1989 United Nations Convention on the Rights of the Child (“CRC”) is the cornerstone of children’s rights in international law. Adopted unanimously by the UN General Assembly after a decade-long drafting process, the CRC quickly became the most widely ratified international treaty, with 196 state parties.¹ Canada ratified the CRC in 1990 and was a leader in the instrument’s drafting.² However, Canada has not implemented the CRC domestically with the eagerness it demonstrated during its creation.

The UN’s CRC Committee, which monitors the CRC’s implementation globally, has consistently noted several threats to children’s rights in Canada, particularly for Indigenous children.³ Its most recent report on Canada’s implementation of the CRC expresses “deep concern” about structural discrimination facing Indigenous children, including in child protection interventions, education, healthcare, criminal justice, housing, and family income.⁴ All of these issues are modern manifestations of over 150 years of violent settler colonialism in Canada.⁵

This essay seeks to understand the CRC’s failures for Indigenous children in Canada by exploring the ways in which the CRC imagines children’s rights. Drawing from Fourth World Approaches to International Law (FWAIL), I will argue that the CRC privileges colonial interests and worldviews over Indigenous ones, producing a conception of children’s rights that is seriously flawed for Indigenous children.

The essay proceeds in three parts. In Part One, I outline the theoretical concepts that guide my analysis. Part Two is the core of my argument, where I explore how the CRC is imbued with colonial concepts that produce gaps and silences regarding Indigenous children’s interests. In Part Three, I take up the call of FWAIL scholars to examine how rights are asserted “on the ground” by Indigenous children and Indigenist⁶ advocates. This analysis illustrates that Indigenous resurgence and resistance persists despite the CRC’s serious flaws as a means to protect the rights of Indigenous children.

I – Theoretical Orientation: FWAIL

This essay examines the CRC using FWAIL as a theoretical lens. FWAIL expands on Third World Approaches to International Law (TWAIL),⁷ which was developed by scholars from decolonized states as a framework to explore the dominance of First World (i.e., capitalist) and Second World (i.e., communist and socialist) states in international law.⁸ FWAIL builds on this literature by adopting the term “Fourth World” to reference the numerous Indigenous nations around the world. A foundational innovation of FWAIL scholarship is to distinguish between “nations” and “states”, where a “nation” is a people group united by shared culture, language, and history, while “states” are a legal construction defined by territorial border claims and a centralized government.⁹ Critically, it is states – not nations – that are recognized as subjects of international law. FWAIL explores how this “statist system” excludes Indigenous nations from international law, the lived consequences of these exclusions, and the Indigenous resistance movements that emerge in response.¹⁰ This last point is an important one: FWAIL is concerned with Indigenous resistance to exclusion as much as it is concerned with the exclusion itself. I have tried to be faithful to this approach, particularly in Part Three of this essay.

FWAIL picks up the critiques developed by TWAIL scholars and applies them to Indigenous contexts. This essay contributes to that effort by drawing on the extensive TWAIL literature that has critiqued international human rights law, including children’s rights.¹¹ Here, I will highlight two salient themes from this literature.

First, TWAIL scholars have described how human rights facilitate the imposition of Euro-American values on the rest of the world.¹² A common theme in this critique is that international human rights are based on an individualistic conception of rights, which is characteristic of Euro-American legal liberalism.¹³ Many other legal orders around the world (including many Indigenous legal orders) adopt a collectivist conception of rights, but this model is marginalized in international human rights frameworks.¹⁴

A second theme from the TWAIL critique of international human rights is a focus on law-making processes.¹⁵ TWAIL scholars have described how attending to the processes surrounding international law – rather than simply the substantive law itself – can reveal colonial dynamics.¹⁶ An attention to law-making processes proved useful in my analysis as well and is reflected in Part Two of this essay.

In sum, FWAIL and TWAIL are concerned with how international law – including international human rights law – creates systems of global inequality and oppression for people in the Fourth and Third Worlds. This essay seeks to contribute to this literature by exploring how the CRC excludes Indigenous children and childhoods, and how Indigenous communities in Canada respond to these exclusions.

II – The CRC as a Flawed Instrument for Indigenous Children’s Rights

This section explores the substantive rights contained within the CRC, as well as the law-making processes that surrounded its inception. Specifically, I will argue that the CRC’s substance and history reveal two ways in which it is compromised in its ability to represent the interests of Indigenous children. First, on a conceptual level, the CRC reflects Euro-American ideals of childhood and human rights which are – at least partially – incommensurate with Indigenous understandings of the same. Second, on a substantive level, the CRC fails to meaningfully include rights that are of unique interest to Indigenous children.

A. CRC Overview

The CRC lays out a set of rights for all children, who are defined as persons under 18 years of age.¹⁷ The rights contained within the CRC are organized around four guiding principles, which reflect an attempt to balance respect for children’s agency with the goal of their protection¹⁸:

1. non-discrimination,
2. the best interests of the child,
3. the right to life,
4. the right to be heard.¹⁹

The final text of the CRC was developed over a decade-long drafting process. The first draft was proposed by Poland in 1979, and was closely based on the pre-existing 1959 UN Declaration on the Rights of the Child (“the 1959 Declaration),²⁰ which itself was based on the 1924 League of Nations Declaration on the Rights of the Child (“the 1924 Declaration”).²¹ The 1924 Declaration was written by a British activist, and overwhelmingly described children as vulnerable beings at the mercy of adults for protection.²² There was a greater acknowledgement of children’s agency in the 1959 Declaration, which was further expanded in the CRC.

In response to the Polish draft, numerous states expressed support for the concept of a children’s rights treaty, while simultaneously expressing critiques and a desire to be involved in further drafting.²³ A Working Group was established with participation open to any UN member state that was interested, and eventually expanding to include non-governmental organizations (“NGOs”).²⁴ Despite this inclusive process, the drafting was done in English, and it was primarily English-speaking countries – including Canada – that led the process.²⁵ After several rounds of drafting, debating, and redrafting, the final text of the CRC was concluded in 1989.

B. Conflicting Understandings of Childhood

Although diverse states were involved in drafting the CRC, remnants of the British attitude towards children from the 1924 Declaration remain.²⁶ This is most explicit in the Preamble, which describes childhood as a time of unique and inherent vulnerability, requiring that adults protect the child until they mature enough to protect themselves. The CRC also adopts the Euro-American (i.e., individualistic) approach to human rights, in that rights are granted to individual children rather than groups or communities.²⁷

Indigenous understandings of rights and childhood do not fit easily with this Euro-American model. There are numerous Indigenous nations in Canada alone, each with distinct languages, cultures, legal and political orders, and histories. Across these diversities is a shared general understanding that human beings are not separate from the rest of the natural world, nor is the past or future separate from the present.²⁸ These “expansive concepts of time and space”²⁹ profoundly shape Indigenous understandings of childhood.

Many Indigenous nations in Canada view children as sacred beings who – through teachings from Elders and ancestors – learn to become the future of their nation.³⁰ The relationship that children have with Elders and ancestors is therefore of central importance to a child’s wellbeing. These normative ideals are entirely absent from the CRC, which reflects instead the Euro-American norm of prioritizing the relationship between children and parents.³¹

The legal consequences of contrasting visions of childhood are evidenced by the controversy surrounding children’s legal responsibilities. Many peoples around the world – including many Indigenous nations and African nations – understand children as having unique skills and knowledges that they must nurture and share in community.³² Therefore, children are understood as having responsibilities in society, as well as rights.³³ Some African delegates on the CRC Working Group proposed Articles that would create legal obligations for children, but the European and North American states were unwilling to agree.³⁴ The Euro-American critique of legal responsibilities for children was that they would erode the protections that are central to the CRC’s purpose.³⁵ Underlying this argument is the assumption that protecting children requires keeping them separate from adult society. But for the many Indigenous and African nations who understand children as having legal obligations, these obligations affirm the value, agency, and capacity of children, rather than pose a threat to their safety.³⁶ Ultimately, the Euro-American position on children’s legal responsibilities won out, and the CRC does not include the responsibilities that some African states had proposed.

In sum, there is conceptual friction between the understanding of children’s rights contained within the CRC and common Indigenous understandings of children’s rights. The next section will further explore how these conflicting ideals of childhood manifest in the substantive rights of the CRC.

C. Gaps and Silences Regarding Interests Specific to Indigenous Children

This section focuses on three rights that are of unique interest to Indigenous children: a right to Indigenous identity, a right to self-determination, and a right to relationship with the natural world. It will argue that these rights are either included in the CRC but in a weak form, or absent entirely.

i. Indigenous Identity

Of the three rights explored in this section, a right to Indigenous identity is the most clearly addressed by the CRC. The concept of Indigenous identity is referenced in Article 30, which provides:

In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language.

Notably, the right is phrased as a negative right (i.e., “shall not be denied”) rather than a positive obligation for states to actively protect Indigenous cultures, religions, and languages. The reference to a single Indigenous child is also out of sync with Indigenous realities of identity rights, which are necessarily collective because a child’s access to their cultures, religions, and languages is dependent on their nation having the same.³⁷

Beyond these issues contained within the text of Article 30, the story behind the drafting of Article 30 reveals how the Indigenous vision for a child’s right to Indigenous identity was diluted by state interests. Although there were several drafts of Article 30, the two that were most seriously debated were a Norwegian proposal – which is nearly identical to the final version – and a proposal from the Four Directions Council, an Indigenous NGO.³⁸ The Four Directions Council saw Article 30 as a way to address some of their concerns about other sections of the CRC. Specifically, they were concerned that the focus on a child’s right to education could be used to support forced education programs for Indigenous children.³⁹ This concern arose from the legacy of residential and day schools in settler colonial states like Canada, which used education as a justification for separating Indigenous families, destroying languages and cultural knowledge, and in many cases, subjecting Indigenous children to cruelty and violence.⁴⁰ The Four Directions council was also concerned that some Articles of the CRC could be used to justify removing Indigenous children from their communities in the name of so-called “child welfare.”⁴¹ Drawing from these concerns, the Four Directions Council developed a proposal far more specific and robust than the Norwegian proposal:

The State Parties to the present Convention recognize the special needs of children belonging to indigenous populations, which include the right of the child:
(a) To have, learn, and, if he chooses, adopt the culture and language of his parents;
(b) To enjoy his family of birth and, if alternate family care or adoption is provided, to care or adopt in an otherwise suitable family or community of the same culture wherever possible;
(c) To be educated, at least at the primary level, and to the extent practicable within national resources, in the language of his parents as well as an official language of the State.⁴²

During the debate, most states expressed a preference for the Norwegian proposal because it was closer to existing law.⁴³ The Canadian delegate also noted that the UN was developing an instrument for Indigenous people’s rights (what would become the UN Declaration on the Rights of Indigenous Peoples; “UNDRIP”), and expressed concern that if Article 30 was too specific, it might contradict that developing instrument.⁴⁴ Ultimately, the state interests won out, and the Four Directions Council’s proposal was discarded.

The story behind Article 30 illustrates one of FWAIL’s central critiques: although an Indigenous advocacy group had a seat at the table, their concerns were ultimately drowned out by those of states. A much more specific and robust right to Indigenous identity might have been protected by the CRC were it not for the UN’s statist system.

ii. Self-Determination

All other rights for Indigenous children can be understood as flowing from their nation’s right to self-determination.⁴⁵ However, the CRC is completely silent on the topic. Any instrument that seeks to advance the rights of Indigenous peoples without addressing their right to self-determination is severely flawed.

The lack of concern for Indigenous self-determination is further reflected by the fact that across the CRC drafting process, no state party objected to the continued occupation of non-sovereign territories, or confirmed whether the CRC would apply to children living in those territories.⁴⁶ This further demonstrates that the drafters of the CRC did not view self-determination as a salient concern for children’s rights.

iii. Relationship with the Natural World

Many Indigenous nations understand their wellbeing as intrinsically bound to the wellbeing of the natural world.⁴⁷ Environmental protection and biodiversity are therefore primary interests for Indigenous justice movements.⁴⁸ However, these interests are not reflected in the text of the CRC. Article 24 identifies pollution as a threat to child health, but there is nothing in that Article that clearly grounds a right for children to have a relationship with the natural world, or an obligation for the state to ensure the continued health of the environment.

In sum, the CRC protects many rights that are of interest to all children – including Indigenous children – like rights to health and non-discrimination. However, Indigenous-specific interests like a right to Indigenous identity, self-determination, and a relationship with the natural world are not explicitly protected by the CRC. It is hard to imagine that a children’s rights instrument that originated from the Fourth World would be vague or silent on any of these issues. For Indigenous children, these gaps and silences represent serious flaws in the CRC.

III – Indigenous Children’s Rights “On the Ground”

In this section, I want to consider the CRC “on the ground”; in other words, how people with real stakes in children’s rights interact with the CRC.⁴⁹ Rather than concluding that the flaws of the CRC doom the assertion of Indigenous children’s rights, this section demonstrates how Indigenist legal thinkers and Indigenous children use the CRC despite its flaws.

Although Indigenous-specific interests are largely absent from the CRC’s text, Indigenist legal scholars have argued that the CRC should be interpreted to implicitly protect those interests. For example, Libesman (2007) argues that the broad, vague rights articulated in many Articles of the CRC allow for different interpretations across cultures and contexts.⁵⁰ For example, she outlines how Indigenous rights to self-determination and identity can be “read in” to the CRC, even though these issues are absent from the explicit text.⁵¹ Indeed, she argues that many Indigenous advocates on the ground already use the CRC in this way.⁵²

Similarly, Blackstock et al argue that in the context of Indigenous children, the CRC is properly interpreted by drawing on other international law instruments that speak to Indigenous interests, namely the UNDRIP.⁵³ They conclude that the Euro-American understandings of childhood embedded in the CRC can be at least partially overcome through this interpretive principle.

Further, Blackstock et al highlight how Indigenous children in Canada used the CRC to assert their rights in the social movement surrounding the “Caring Society” case.⁵⁴ In 2016, the Canadian Human Rights Tribunal (“the Tribunal”) issued a landmark decision regarding the funding of child services on reserve. The Tribunal held that the Canadian government, across its history, had discriminated against Indigenous children by systematically underfunding Indigenous child welfare.⁵⁵ In the years leading up to the decision, Canada engaged in various tactics to impede the claim,⁵⁶ prompting a social justice movement in support of the case moving forward. Most notably, the movement involved hundreds of thousands of children.⁵⁷ Children were supported by adult allies to attend hearings, discuss anti-Indigenous discrimination with their teachers and family members, and write letters to government officials demanding change. In many of these letters and conversations, children used the CRC to ground their assertion of Indigenous children’s rights.⁵⁸ Despite the CRC’s conceptual and substantive issues described above, Canadian children in support of the Caring Society case clearly understood the CRC as protecting the unique rights of Indigenous children, and used this understanding to advocate for change.

Conclusion

The primary goal of this essay has been to account for the various ways in which the CRC fails to reflect the worldviews and priorities of Indigenous children. And yet, it would be a mistake to conclude that these flaws render the CRC a useless instrument.

For Indigenous nations in Canada, asserting their rights in the face of a legal system that is designed to deny them is not a new challenge. For as long as the settler colonial project has existed, Indigenous nations have held colonial powers to the standards of colonial law as a strategy to ground their claims of discrimination.⁵⁹ For example, the Nisga’a nation used the British common law concept of “land title” to argue that they had rights connected to their traditional territories, leading to a breakthrough in Aboriginal law in Canada in 1973.⁶⁰

In a similar way, although the CRC is a colonial instrument that does not reflect Indigenous approaches to children’s rights, Indigenous children and their allies are finding ways to make it work for them. In other words, Indigenous children in Canada deserve better than the CRC – but until then, their resistance and resurgence will carry on regardless.

BIBLIOGRAPHY

International Law Documents (in chronological order)

Declaration on the Rights of the Child, League of Nations, 1924.

Declaration on the Rights of the Child, United Nations, 1959.

Convention on the Rights of the Child, United Nations, 1989.

Office of the United Nations High Commissioner for Human Rights, “Legislative History of the  Convention on the Rights of the Child” (New York: United Nations, 2007), online.

Committee on the Rights of the Child, “Concluding Observations on the Combined Fifth and Sixth Periodic Reports of Canada”, 23 June 2022, CRC/C/CAN/CO/5-6.

United Nations Treaty Series, “11. Convention on the Rights of the Child”, 1993, Vol 1577 (last updated 12 January 2023), online.

Case Law (in chronological order)

Calder et al v Attorney-General of British Columbia, [1973] SCR 313.

First Nations Child & Family Caring Society of Canada et al v Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2015 CHRT 14.

First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2.

Secondary Sources (in alphabetical order)

Anghie, Antony, “The Evolution of International Law: Colonial and Postcolonial Realities” (2006) 27:5 TWQ 739.

Blackstock, Cindy, Muriel Bamblett & Carlina Black, “Indigenous Ontology, International Law and the Application of the Convention to the Over-Representation of Indigenous Children in Out of Home Care in Canada and Australia” (2020) 110 Child Abuse Neglect 104587.

Brokenleg, Martin, “First Nations Principles of Learning” (2015) online video.

Faulkner, Elizabeth A, “Protecting Children: Childhood, Rights, and the Trafficked Child” in “The Trafficking of Children: International Law, Modern Slavery, and the Anti-Trafficking Machine” (Switzerland: Palgrave Macmillan, 2023) 51.

Faulkner, Elizabeth A & Conrad Nyamutata, “The Decolonisation of Children’s Rights and the Colonial Contours of the Convention on the Rights of the Child” (2020) 28 Int J Child  Rights 66.

Fukurai, Hiroshi, “Fourth World Approaches to International Law (FWAIL) and Asian’s Indigenous Struggles and Quests for Recognition Under International Law” (2018) 5 AJLS 221.

Grahn-Farley, Maria, “Neutral Law and Eurocentric Lawmaking: A Postcolonial Analysis of the UN Convention on the Rights of the Child” (2009) 34:1 Brook J Int’l L 1.

Imoh, Afua Twum-Danso, “The Convention on the Rights of the Child: A Product and Facilitator of a Global Childhood” in Afua Twum-Danso Imoh & Robert Ame, “Childhoods at the Intersection of the Local and the Global” (New York: Palgrave Macmillan, 2012) 17.

Libesman, Terri, “Can International Law Imagine the World of Indigenous Children?” (2007) 15 Int J Child Rights 283.

Liebel, Manfred, “Postcolonial Dilemmas of Children’s Rights” in “Decolonizing Childhoods: From Exclusion to Dignity” (Chicago: University of Chicago Press, 2020) 127.

Littlebear, Leroy, “Jagged Worldviews Colliding” in Marie Battiste, “Reclaiming Indigenous Voice and Vision” (Vancouver: UBC Press, 2000), online.

Ramina, Larissa, “TWAIL – ‘Third World Approaches to International Law’ and Human Rights: Some Considerations” (2018) 5:1 NINC 261.

Wilson, Shawn, “Research is Ceremony: Indigenous Research Methods” (Winnipeg: Fernwood Publishing, 2008).

Endnotes