"Can International Law Imagine the World of Indigenous Children?" published on 01 Jan 2007 by Brill.

In this chapter, we bring to light the duplicity of colonial governments’ claims to support human rights and equality of First Peoples children in Canada and Australia, while not only perpetuating but defending inequality. In Australia, this is viewed through recent law reforms and in Canada through a human rights challenge. Child protection services remain deeply discriminatory against First Peoples despite apologies, reforms, and claims by colonial governments of commitments to equality, non-discrimination and a reduction of First Peoples in child protection systems. This chapter presents the continuity in claims by First Peoples to self-determination in child protection, the diverse forms of resistance to colonial violence and how these challenge the deep-seated colonial values within Australian and Canadian child protection systems.

First Peoples continue to face intergenerational harms as a result of settler systems of intervention in the lives of their families, including the forced removal of children. First Peoples resistance includes advocacy for systemic change, in particular, focused on foundations of greater accountability in child welfare systems, and recognition of First Peoples’ right to self-determination. However, achieving these necessary structural changes remains a pressing challenge. Using the example of the recent Aboriginal-led review of child welfare in New South Wales (NSW), Australia, ‘Family is Culture’, this paper explores the cycle of inquiry and response, and the repeated failures to enable self-determination or strengthen public accountability and oversight. Drawing on concepts including legitimacy and the rule of law, we conceptualise this pattern of reviews as a ritual of redemption by settler child – welfare systems, distancing themselves from ‘past’ wrongs while refusing to address the harmful foundations of these systems, thereby perpetuating the violence imposed on First Peoples children, families and communities. This contrasts with First Peoples’ frameworks for child welfare reform, which must be urgently realised in order to establish such systems on more just and effective foundations.

This paper argues for a conceptualisation of self-determination with respect to Indigenous Peoples’ child protection that is grounded in human rights which are plural, relational, and collective as well as individual. This challenges the idea that human rights are universal and static standards based on a code of enumerated rights with a focus on individual rights. Conceptions of the best interests of the child, permanency in care arrangements, and attachment within colonial institutions such as children’s courts often presume non-Indigenous understandings of family and culture. These child protection concepts, which are often framed as consistent with or even necessary to attain children’s human rights, implicitly embed colonial understandings and values with respect to family and community relations. An acknowledgment of the role of law in structuring relationships is necessary for the human rights of Indigenous children to be upheld. We argue that a relational and distributional conceptualisation of these rights can help to clarify how the law can contribute to strengthening, rather than undermining, Aboriginal and Torres Strait Islander family and community relationships.

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