Judge Brian Giesbrecht:

As a provincial court judge in Brandon from 1976 to 2007, I made no claim to being an expert in the field of child welfare and my knowledge these days about the current state of the system is gleaned like yours from media reports. However, I do know what I have seen and heard in my courtroom.

The majority of the cases I heard as a judge hearing child welfare cases involved aboriginal families.Typically, the parent or parents had serious drinking problems, and the agonizing choice facing the child welfare worker was whether to leave the child in a substandard or possibly dangerous situation and risk a tragedy — or take the serious step of removing the child from the home and risk damaging the bond between child and family. The child care workers appearing before me, some of whom were aboriginal, were excellent caring people, respectful of aboriginal culture and committed to doing what was in the best interests of the children they were sworn to protect.

Generally, child care workers had their bachelor of social work degrees and some had their master’s. The agencies employed aboriginal workers wherever possible, but the talented aboriginal university graduates were in great demand and easily found employment that was more lucrative than the demanding work of a child care worker.

By the 1970s it was clear that there were far too many aboriginal children in care. The practice of sending aboriginal children to American homes had been recognized as misguided by then and something had to be done. The government desperately sought solutions. Aboriginal activists blamed the “culturally insensitive” non-aboriginal child welfare system for causing the problem, and assured the government that if the existing workers and agencies were replaced with aboriginal workers and agencies the problem could be solved. The government recklessly accepted this specious reasoning on no evidence, and began gutting the existing system and replacing it with brand new untested agencies. Senior child care workers and supervisors were lost to the system and a child welfare system that had refined itself over many years was decimated.

While that process was in its infancy, I conducted an inquiry into the death of an aboriginal boy named Lester Desjarlais, a 13-year-old member of Sandy Bay First Nations, who committed suicide in his foster home in Brandon while in the care of one of these new agencies. Unqualified workers and agency incompetence were major factors in his death. At the conclusion of that hearing I wrote a report strongly warning the government against proceeding further on the dangerous path it was following. Others gave warnings as well. Despite those warnings the government accelerated the transferring of responsibility for aboriginal children to these hastily created agencies. This transfer was done without safeguards ensuring that proper educational standards for workers be maintained, and without proper controls. The entire child welfare system, including what was left of the existing agencies, was degraded.

Under an aboriginal child welfare system, the best interests test, namely the cardinal rule in child welfare that an agency must do what is in the best interests of the child was abandoned. Instead, racial identity was given primacy. Children were torn from loving homes and placed in substandard situations simply because the foster parents were not aboriginal. I refer to one notorious example in which an aboriginal girl was taken from a southern home where she had been loved and cared for all her life, and placed on a northern reserve where she was repeatedly raped and brutalized. This was racial politics at its worst, and it also was child abuse. The agency was abusing the very children it was sworn to protect.

The provincial government is now trying to repair this badly broken system. The recommendations I made in my report of 25 years ago still stand today, despite being dismissed by some aboriginal leaders using the absurd logic that criticism of a racially based system was “racist”. The government simply ignored the recommendations.

First, child care workers must be properly qualified. The work of child welfare workers is both demanding and important. It is absolutely vital that only qualified, capable people are entrusted with this responsibility. It should be completely unacceptable to the citizens of this province that Manitoba’s child welfare workers now fall far below the Canadian norm when it comes to qualifications. The goal must be to bring qualifications up to at least the Canadian average. If agencies are able to employ aboriginal child welfare workers with the proper educational qualifications they should certainly do so. But talented aboriginal graduates are in high demand. If it is a choice between a properly qualified non-aboriginal applicant and an aboriginal applicant who lacks the qualifications, the agency must choose the properly qualified person. The disturbing notion that university and college degrees are unimportant, and that all that is required is for a worker to be aboriginal is nonsense of the highest order.

Second, the best interests of the child must be the test used to determine what action to take with respect to a child. It is only common sense that when dealing with an aboriginal child, if two equally good homes are available and one is aboriginal, the child should be placed in the aboriginal home. But if the choice is between a good non-aboriginal home and a sub-par aboriginal home, racial politics must not be allowed to intervene. The child must be placed in the best home available. Aboriginal children are citizens of Canada and entitled to the same duty to protect as are any other children. They are not the property of anyone or of any group.

Finally, it is imperative that the senior child welfare ranks oversee the system. There must be provincial oversight, and if an agency is not doing its job the province must step in. It is not open to the province to simply abdicate its responsibility to aboriginal children.

Manitoba’s aboriginal child welfare system is in a state of crisis, and has been for years. There are far too many aboriginal children in the system. Many of these children are very needy. Fetal alcohol kids, children who have been repeatedly abused, and children who have lived in chaotic conditions and who have been witness to horrific incidents are all in the system in depressingly large numbers. The picture is not pretty and will not change any time soon. The entrenched dependency of far too many aboriginal people and communities — the legacy of the outdated and racist Indian Act and its dreadful reserve system (a system the aboriginal leadership insists on keeping in place) has resulted in social pathologies that will keep Manitoba’s child welfare system and jails full for generations to come.

Our government made a bad situation worse with its reckless haste to gut the existing child welfare system and replace it with untrained, untested, and unaccountable agencies. Manitoba’s children deserve better.

Brian Giesbrecht was a provincial court judge from 1976 until 2007. He is now retired.

Originally published on Winnipeg Free Press on 07/10/2015

Photo credit: <a href=”http://www.flickr.com/photos/80835334@N07/”>Nicolas Alejandro Street Photography</a> / <a href=”http://foter.com/”>Foter</a> / <a href=”http://creativecommons.org/licenses/by/2.0/”>CC BY</a>

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