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Indigenous mom’s discrimination payout hangs in the balance at B.C. Supreme Court



Outside B.C.’s Supreme Court on Nov. 2, 2023, Justine said she’s fighting for a system in which social workers aren’t “just policing us — they’re supporting us.” Photo by Brielle Morgan

Content warning: This story deals with child apprehension and discrimination against an Indigenous mother. Please look after your spirit and read with care.

An Afro-Indigenous mother sat quietly in a “Vancouver” courtroom last week as 14 lawyers argued about whether a tribunal decision that found social workers discriminated against her should be upheld.

About this same time last year, “Justine” was celebrating a landmark B.C. Human Rights Tribunal ruling, which ordered the agency that took her daughters and put them in “care” to pay her $150,000 “as compensation for injury to her dignity, feelings, and self-respect.”

Now, the Vancouver Aboriginal Child and Family Services Society (VACFSS) is asking B.C. Supreme Court Justice Geoffrey Gomery to toss that decision out

The tribunal’s decision “jeopardizes the safety of Indigenous children by undermining the provincial court’s jurisdiction over child protection matters,” VACFSS told the court during a five-day judicial review between Oct. 30 and Nov. 3. The tribunal’s process wasn’t fair and its decision will have a “chilling effect” on social workers, the agency said.

This hearing marked the latest development in a years-long battle between Justine and the child “welfare” system that’s consumed a staggering amount of energy and public resources. 

Outside the courtroom on Nov. 2, Justine — whose real name is being protected by a publication ban — told IndigiNews she never expected her complaint to go this far. 

“It’s bringing up a lot of really good questions about how much power social workers have,” she said.

The case is being watched with interest by Indigenous leaders because of the far-reaching effects it could have on social work practice and Indigenous families. The Union of BC Indian Chiefs was one of several high-profile interveners in last week’s review. 

“UBCIC sees this judicial review as part of a decades-long battle for accountability of child apprehension authorities, principally [the Ministry of Children and Family Development], that are responsible for decades of racialized inequity,” UBCIC submitted.

‘VACFSS relied on stereotypical assumptions’

Justine’s four daughters were placed in three different foster homes in 2016 by VACFSS social workers who said they were concerned about the children’s physical and emotional safety after receiving a report from Justine’s teenager and interviewing her younger girls. 

She spent nearly three years fighting to get them back through the Provincial Court of British Columbia — which has a mandate under the Child, Family and Community Services Act (CFCSA) to deal with child protection cases. 

In 2017, while her girls were still in “care,” Justine launched a discrimination complaint against VACFSS. The tribunal agreed to hear her case, and five years later, after a 21-day hearing, it ruled in Justine’s favour. If the decision is upheld, the payout ordered from VACFSS will be the second-highest award in the tribunal’s history. 

Tribunal member Devyn Cousineau found that “VACFSS relied on stereotypical assumptions to view [Justine’s] trauma, substance use, conflict with the child welfare system, and the intergenerational impacts of residential school, as risk factors for the children.” 

“I am satisfied that [Justine’s] Indigeneity and disabilities were a factor in the adverse impacts she experienced, including VACFSS’s decisions to continue custody over her children, reduce and suspend her access to them, and exclude her from important parts of their lives,” Cousineau wrote. 

Ultimately, she concluded that “VACFSS did not have reasonable grounds to continue custody.”

​​‘Justine’ stands outside the B.C. Human Rights Tribunal on Feb. 20, 2020, wearing a skirt featuring her daughters’ handprints. Photo by Brielle Morgan

The tribunal introduced a ‘parallel proceeding’

However, VACFSS told the supreme court that the tribunal should never have agreed to hear Justine’s case.

Justine’s concerns about the social workers should have been dealt with in provincial court, where she was already fighting for custody and access to her kids, VACFSS argued. 

The provincial court has a “clear and exclusive grant of jurisdiction” over child protection matters under the CFCSA, the agency submitted — while the tribunal “has no institutional expertise in child protection.”

“There is only one appropriate forum. There was only one right answer,” VACFSS’s lawyer Claire Hunter told the court on Nov. 30. 

Instead of respecting its jurisdiction, VACFSS argued, the tribunal introduced a “parallel proceeding” — and this is apparently what prompted the attorney general’s participation in this review. 

The attorney general said they wanted “to assist the court in clarifying the proper boundaries between the tribunal and the courts … to avoid confusion about the appropriate avenues for challenging child protection decisions and to ensure that vulnerable children are protected from harm in accordance with the CFCSA.”

“The tribunal does not have jurisdiction to decide substantive child protection issues as part of a human rights complaint,” the attorney general submitted. “Those matters are appropriately determined under the CFCSA through provincial court processes.”

‘Cards are stacked against the parents’ 

Justine was represented at the judicial review by Jonathan Blair and Danielle Sabelli. They work for the nonprofit law firm CLAS.

In a phone interview with IndigiNews on Nov. 6, Blair said they couldn’t find “a single case in all of B.C. history of the provincial court addressing a human rights code complaint in the midst of a child welfare proceeding under the CFCSA.”

It’s hard to imagine how the court would deal with both issues at the same time, he said.

“The director in a family matter has to prove their case… and [Justine] would get the opportunity to respond. But in a human rights complaint, [Justine] would have to prove discrimination and the director would get the opportunity to respond.”

The process is “very not clear and goes to show why it’s never been done,” he said. 

Danielle Sabelli and Jonathan Blair represented Justine in a judicial review at B.C. Supreme Court from Oct. 30 to Nov. 3, 2023. Photo by Brielle Morgan

The provincial court also isn’t “equipped to provide an injury to dignity award,” Sabelli told the B.C. Supreme Court. “The remedy that [Justine] was seeking from the [B.C. Human Rights Code] is very unique to the code.”

“Access to those remedies is of critical importance,” said Lindsay Waddell, who intervened on behalf of B.C.’s Office of the Human Rights Commissioner. “The tribunal is an expert in making that determination.”

VACFSS argued that while “the provincial court cannot order financial compensation … it can issue remedies that are more effective and timely, such as ordering the return of the children where the court finds a removal to be discriminatory.”

For example, parents can challenge an apprehension at a presentation hearing (which is supposed to happen within seven days of the apprehension) or appeal a custody determination,” VACFSS wrote.

“That’s sort of nonsense,” said Frances Rosner, a Métis family law lawyer who acted as co-counsel for Justine during the tribunal proceedings. She attended some of last week’s judicial review. 

“The cards are stacked against the parents,” she told IndigiNews. “The threshold at removal is extremely low … and any conflict in the evidence must be decided in favour of the director.” 

If someone disputes, it could also mean being separated from their kids for a much longer time, she added, because it could take months for the court to hear the case. And when it comes to appealing custody decisions, she asked, who’s going to pay for that?

“I’m speaking on behalf of the Indigenous families that I’ve acted for — very vulnerable, marginalized, sometimes [they] have disabilities. Therefore [they’re] not well suited to self-represent in a judicial review. It’s absurd to even suggest that,” she said.

Métis family law lawyers Frances Rosner (left) and Roslyn Chambers debrief outside the B.C. Human Rights Tribunal on Feb. 26, 2020. Photo by Brielle Morgan

Indigenous families are grossly overrepresented in child “welfare” systems across the country, continuing the harmful colonial tradition of removing Indigenous children from their families. In “B.C.,” Indigenous children represent just over two-thirds of all kids in care, despite the fact that just 10 per cent of the total population of kids under 14 in the province are Indigenous. 

This systemic context is “fundamentally relevant to both the analysis of the facts … and to the way in which the Code and the CFCSA are interpreted and applied,” said Robin Gage. 

Gage intervened on behalf of West Coast LEAF, a non-profit organization that uses legal strategies to address gender-based discrimination and inequities.

Rosner said she’s tried to raise broader concerns about racism and discrimination when she represents Indigenous parents in provincial court — to little effect.

“I don’t find that much attention gets paid to these issues because the court’s primary task under the CFCSA is to determine whether the children are in need of protection,” Rosner said. But if social workers’ decisions are informed by racist assumptions “it’s going to lead to harmful outcomes for children.”

Jason Gratl echoed something similar to the court on Nov. 3, when he intervened on behalf of the Union of BC Indian Chiefs

If social workers rely on stereotypes to assess risk, “not only do they harm the parent, but they harm the child by unnecessarily alienating the child from the parent.”

‘Impossible situations for social workers’

In the attorney general’s submissions, they argued that “human rights and child protection proceedings employ different standards.” 

This tension “may create impossible situations for social workers.”

According to the attorney general, the tribunal’s decision imposes a new third-party substantiation requirement that will interfere with the preventative and time-sensitive nature of their work.” 

Social workers will have “to choose between liability in negligence (for failure to remove) or liability under the Code (for failure to ensure ‘substantiation’ before acting),” the attorney general wrote. 

But Justine’s lawyers called this framing “a diversion.”

“VACFSS’s approach is to portray this matter as a conflict of competing interests: parental interests versus the best interests of the child,” they submitted. “Acting in a non-discriminatory manner and prioritizing the best interests of the child are not irreconcilable duties.”

“The function of the code is to create that pause in social workers to think about, ‘Why am I making this decision? What am I basing this decision on?’” Sabelli told the court on Nov. 2. 

“It causes them to be more reflective of their own internal biases and stereotypes and … then it also holds them accountable for when they do discriminate.”

This check against social workers’ discretionary power is critical, said Gage, who represented West Coast LEAF.

“The exercise of discretion with respect to custody and access is precisely the area that needs protection the most. It is the most prevalent of the kinds of discrimination experienced in this context, and it is the most harmful.”

Attorney general is bringing the ‘administration of justice into disrepute’: lawyers

Jurisdictional overstep and a chilling effect weren’t the only concerns raised in this judicial review. VACFSS also argued, for example, that the tribunal didn’t facilitate a fair proceeding, failing to clarify the timeframe at issue and impeding VACFSS’s ability to prepare its case.

Justice Gomery had to schedule more time on Nov. 24 to finish hearing the case.

“This is a very complicated judicial review,” Blair said over the phone. “I don’t think I’ve ever even heard of a judicial review that’s gone for more than five days before.”

Given the “ginormous amount of material,” he said he wouldn’t be surprised if it takes eight months to get a decision. 

“I do think it’s not over … if we are successful, both the [attorney general] and VACFSS will have their own independent rights of appeal.”

Justine’s lawyers took issue with the attorney general’s decision to get involved in this case.  

The attorney general’s participation “brings the administration of justice into disrepute by calling into question their supposedly neutral role as guardians of the public interest, which includes protecting vulnerable groups against discrimination and working toward reconciliation,” they told the court.

IndigiNews asked the attorney general for an interview. In an email on Nov. 6, a spokesperson wrote, “It would be inappropriate to provide comment as the matter remains before the courts.”

VACFSS’s executive director Bernadette Spence also declined to comment. 

Outside the court, Justine told IndigiNews that if she isn’t successful, she plans to appeal. 

She said she’s pushing “to make changes within the system… so [social workers] work better with the parents, and they’re not just policing us, they’re supporting us.”

The post Indigenous mom’s discrimination payout hangs in the balance at B.C. Supreme Court appeared first on IndigiNews.

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In photos: Indigenous children and Youth take the spotlight at VIFW 2023




Indigenous children modelled the fashion brand HSTRYMKRS, which shared spray paint designs that read “Young Matriarch” and “The Youth are Sacred.” Photo by Aaron Hemens

The future looked bright for the next generation at this year’s Vancouver Indigenous Fashion Week (VIFW), as children and Youth showcased their talents in modelling and design.

The event took place at the Queen Elizabeth Theatre over four nights last week — each with a different theme. VIFW is an annual event that began in 2017 as a way to promote and celebrate Indigenous fashion, arts and culture.

The third night on Nov. 22 had a theme of Indigenous Futures. After a territorial welcome, the lights dimmed and music vibrated the walls of the venue as Indigenous Youth from the Girls Who LEAP (Lead to Empower and Act with Purpose) program walked in their power on the runway.

As part of a mentorship program with VIFW, each girl designed and created their own shawl to showcase — embodying their hopes, dreams, and respective cultures. Their work was paired with the work of Nisg̱a’a designer Kevin Gosnell Designs.

Girls Who LEAP is a non-profit in “Vancouver” that provides leadership opportunities for Youth in the Downtown Eastside and Grandview Woodlands communities – both of which have a high population of urban Indigenous People. Photo by Aaron Hemens

Partnering with Indigenous models from Supernaturals Modelling, the Youth smiled, held back tears, and waved to their friends in the audience. Family members cheered for their children, grandchildren and great grandchildren.

For Kailani, a Youth who participated in the LEAP program, being mentored to create a shawl for VIFW was a dream come true, and a way to honour her family and culture.

Kailani says she wanted to honour her name, which means sea and sky in Hawaiian, as the inspiration for her design. “I created a blue sun with red, yellow, orange and purple arrows mimicking the course of the sunset. The blue sun represents the meeting point of the sea and the sky,” says Kailani. Photo by Aaron Hemens

“I grew up seeing my aunt dance in her beautiful regalia,” said Kailani. 

“My aunt Rebecca influences me especially because many designs are based around powwow culture.”

Kailani’s aunt is Kwakiutł, Dzawada’enuxw and Skwxwú7mesh designer Rebecca Baker-Grenier, who also showcased her clothing designs during VIFW. Another aunt of Kailani’s, Himalkas Pam Baker, also showcased her fashions.

Girls Who LEAP models show off their shawls on the runway. Photo by Aaron Hemens

The founder and artistic director of VIFW, Joleen Mitton, was in the audience, dancing and cheering for the Youth and their creations. 

Her work in creating VIFW was recently featured in the short film Ancestral Threads, which premiered at HotDocs in 2023. 

The behind the scenes look at how VIFW began, and all of the work that goes into curating a show, and the people Mitton has brought along with her. 

The former international model, who is Cree, has deep roots in “Vancouver” mentoring Indigenous Youth. For Mitton, she credits her kokum for inspiring her to serve the community.

Joleen Mitton (front), the founder of VIFW, poses on the runway during the Girls Who LEAP finale. Photo by Aaron Hemens

Opening the show, Mitton wore a jumpsuit with the slogan “the future is Indigenous” on the back before changing looks later in the night.

“You’ve got to appreciate the outfit,” she said. “This was made by the Youth. They are our future.”

Angela Howe-Parrish of Choke Cherry Creek, who is Apsaalooke (Crow) and Amskapi Piikani (Blackfeet), shared her new Apsáalooke Collection, which featured vibrant colours, geometric patterns and Elk tooth prints. Photo by Aaron Hemens

Along with Girls Who LEAP, the Indigenous Futures night featured the works of Choke Cherry Creek, Alicia’s Designs, Two Smudge, Section 35, 4 Kinship, Jamie Gentry Designs and Himikalas Pamela Baker.

Owen Unruh, a Two-Spirit Cree model, dancer and content creator, in Choke Cherry Creek Designs. Photo by Aaron Hemens

During a showcase for the Heiltsuk-owned streetwear brand HSTRYMKRS, models wearing jerseys, cargos and statement-making jewelry by Copper Canoe Woman danced to hip hop music and hyped up the crowd as they walked the runway, prompting loud cheers.

Fashion Brand HSTRYMKRS shared spray paint designs that read “Young Matriarch” and “The Youth are the Future.” Photo by Aaron Hemens

The cheers became louder as a model wearing a graffiti-painted gown emblazoned with the words “The Youth are Sacred” and “The Youth are the Future” walked out with three children who wore shirts with the slogans “Youth Matriarch.” 

A model with HSTRYMKRS poses on the runway in front of cheerful audience members. Photo by Aaron Hemens

“How many more times am I going to cry tonight?” said the event’s host Kiefer Collison, after the showcase was over. “That was absolutely beautiful.”

A spectator raises their fist in the air in solidarity with HSTRYMKRS models. Photo by Aaron Hemens

The themes for the other nights of VIFW were the opening Red Dress Event, All My Relations and Spirit of the West Coast. 

“My people, you are so beautiful and so strong,” said Rueben George of Tsleil-Waututh Nation, who gave a territorial welcome with his children Cedar and Kayah.

“This is a celebration, because how we look is to the future.”

The show was opened by Rueben George of the Tsleil-Waututh Nation (TWN) and his children Cedar and Kayah. “We’re taking it back,” says George. “This is a presentation of our future, of who we are.” Photo by Aaron Hemens

With files from Aaron Hemens and Cara McKenna

The post In photos: Indigenous children and Youth take the spotlight at VIFW 2023 appeared first on IndigiNews.

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SD67 career fair connects Indigenous students with professional mentors




From left: Whitney Cardenas, Chris Ingle and Jaden Sampson were at the career fair with PIB’s fire department. Photo by Athena Bonneau

During a career fair in “Penticton” last week, Indigenous secondary school students heard from 26 mentors working in different industries — giving the Youth an opportunity to learn about various professional pathways.

The event was the first-ever Indigenous Career Fair held by School District 67’s (SD67) Indigenous Parent Group, planned in collaboration with the district’s Indigenous Education Program and held at Princess Margaret Secondary School.

It aimed to bridge the gap between post-secondary aspirations and alternative career paths, and set Indigenous Youth up for success after high school.

The Youth learned about various industries from professionals including water technicians, Youth and family workers, teachers, artists and more. 

Along with covering the event as a journalist on Nov. 16, I also represented my industry as a mentor, talking to the Youth in Grades 8 to 12 about my career as a freelance storyteller contributing to IndigiNews and Global Okanagan. I shared with them what it means to me to tell these impactful stories as a member of Penticton Indian Band (PIB).

Another of the mentors, Whitney Cardenas, is also a member of PIB and works for the nation’s fire department. She told me that before she became a firefighter, attended a similar career fair to explore different job paths.

Now, she is eager to encourage the next generation of Indigenous Youth who are trying to decide which career path to choose.

“I’m pretty proud of myself to be named as one of the Indigenous role models, and I’m excited to talk to the Youth and tell them why I do what I do,” said Cardenas.

“I’m here to help encourage them to know that there are options out there and how easy it is to get into these careers and how they can make a living.”

Students at SD67’s Indigenous Career Fair at Princess Margaret Secondary School on Nov 16. Photo by Athena Bonneau

As a mother of two young children, Cardenas shared her passion for building a sense of community, emphasizing the importance of involving youth in trades for real-world experience. 

“I never saw myself in this position with the fire brigade but I love it. I feel it’s something that I’m going to continue doing for a long while,” said Cardenas.

Cardenas encouraged Youth who may be interested in the trades to “come as you are and experience it firsthand” — embodying the inclusive and supportive spirit at the heart of the Indigenous Career Fair.

Dustin Hyde, the District Principal of Indigenous Education and Equity for SD67, highlighted the importance of broad representation of Indigenous workers across different sectors at the event.

“There was a parent who said, ‘my daughter wants to study medicine’ and it would be wonderful if there was an Indigenous doctor here,” said Hyde, who is Métis.

“We plan to broaden our role models next year and the hope and the dream would be that we just continue to offer more opportunities.”

Christy Tiessen, a member of the Indigenous Parent Group and organizer of the Career Fair, said the group will continue to meet monthly to find different ways to encourage Indigenous youth to see themselves in different career paths aside from only the traditional university route.

“If one kid walked out of here tonight and says, ‘I know what I want to do, that’s what I’m going to do’ and now they have a passion to move forward — that’s the goal,” said Tiessen.

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For 18-year-old syilx basketball star, sports and mental health intersect




sk’ik’aycin Peter Waardenburg Jr., an 18-year-old syilx Youth from the Lower Similkameen Indian Band, pictured at Westbank First Nation’s (WFN) basketball court on Nov. 3. Photo by Aaron Hemens

Just down the road from where sk’ik’aycin Peter Waardenburg Jr. grew up is one of his favourite safe spaces — the Westbank First Nation’s (WFN) basketball court.

The sport is more than just a means of keeping active or staying connected with his community — it’s his go-to coping mechanism to help navigate whatever challenges may present themselves. 

So whenever he needs to clear his mind and ground himself, the 18-year-old will head to outdoor facility in syilx homelands and spend time shooting hoops. 

“Whenever I feel down or need to feel motivated, I’ll come out,” says Waardenburg Jr., who is a member of Lower Similkameen Indian Band. 

“It allows me to get away from whatever I need, to create a space for myself.”

Waardenburg Jr. was raised by a community of basketball players. His family started Syilx Basketball long before he was born — some of his earliest memories are of him watching his older brother Treyton, his older cousins and his dad play.

In addition to Treyton, his favourites included local Syilx Basketball league legends Jesse Vissia and Skye Terbasket, with his mom even gifting him a poster of the latter for Christmas one year.

“I always liked to watch and analyze more than I liked to play when I was younger. I was a little shy,” he recalled.

But Waardenburg Jr. was playing ball by the time he was five years old. Throughout his 13-year career, he’s generally played the point guard position, sometimes switching to shooting guard if needed. 

At one point, he also played competitive baseball, where his time as a pitcher taught him patience and how to keep himself calm.

“That helped me later on with basketball: being a point guard and calm on the floor, kind of leading,” he said.

Basketball has introduced him to a new world of different clubs, tournaments and communities throughout North America — he’s played with the Jr. Heat Boys Basketball Club, Okanagan Valley Elite, GW Hoops, the Similkameen Men’s team, and Syilx Basketball for both the Junior and regular All Native Basketball tournaments.

He’s also represented Team BC twice in the North American Indigenous Games (NAIG) — first in 2017, where the team placed second, and this past spring, where he was the starting point guard for the team, who finished third.

In 2022, he was part of the Syilx Basketball team that won the All Native Youth Basketball Tournament, which also saw him earn the MVP award. He competed again in this year’s Junior All Native, where he was the top scorer and was named an all-star, helping his team place second.

“Basketball allowed me to stay connected, especially to culture. With the All Native and with the Junior All Native, it brings you towards different tribes and bands,” he said.

A special highlight in his career was when he played with his older brother and his younger brother on a Men’s Similkameen Basketball team that his dad coached. 

“When you’re surrounded by friends and family, and they’re playing basketball, it just makes you realize how much you’re loved,” he said.

This past August, Waardenburg Jr. was named as one of three syilx Okanagan recent high school graduates to receive a Syilx Siya Bursary Award from the Okanagan Nation Alliance (ONA), for demonstrating “a willingness to dream big for themselves, their Nation, their community, and/or their family.”

Applicants for the bursary award were tasked with writing about overcoming a difficult moment in their lives. In his application, he wrote about losing his cousins to mental health challenges and how sports — basketball in particular — helped him cope.

“I definitely believe sports help with mental health. I’ve seen it help me through the roughest times,” said Waardenburg Jr., who graduated from Mount Boucherie Secondary School.

He said while opening up about loss was difficult, he has worked through many of the emotions involved with the grieving process. 

“My two bros that I lost, they played a lot of basketball. I grew up playing with them,” he said.

Now, he is working his way through his first-year studies at Okanagan College’s business administration program. Waardenburg Jr. said he’s keen on promoting Indigenous sports more — he said he’d like to teach and coach other Indigenous Youth someday.

Speaking from his own experience, he encouraged those struggling with mental health to try and pick up a sport because you never know who you’ll meet that may help you down the road.

“It can also just make you realize that there’s more to life,” he said.

“Honestly, it could save someone.”

The post For 18-year-old syilx basketball star, sports and mental health intersect appeared first on IndigiNews.

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