Grand Council of the Crees and Cree Board of Health and Social Services are Granted Leave to Intervene in Customary Adoption Case
Grand Council of the Cree (Eeyou Istchee) et al. c. Director of Youth Protection of the Batshaw Youth Centres
Quebec Court of Appeal : August 21, 2009
The judgment will be available shortly at : http://www.canlii.org/en/qc/qcca/index.html
On August 21st, 2009 the Quebec Court of Appeal granted the appeal of the Grand Council of the Crees, the Cree Regional Authority and the Cree Board of Health and Social Services of James Bay, thereby quashing the lower court judgment which had refused their request to intervene in eligibility for adoption proceedings of a Cree child.
The facts leading to this appeal are as follows: while the Cree mother was in Montreal with her four children, the Director of Youth Protection for the English-speaking population of Montreal (the “Montreal DYP”) was required to intercede, which was followed by a court declaration that the children's development and security were compromised. Subsequently, the youngest of the siblings was placed in a non-Aboriginal foster family. This family now wishes to adopt the child. The other three siblings were eventually returned to their Cree community of origin.
In 2007, proceedings to declare the child eligible for adoption were instituted by the Montreal DYP. However, in September 2008, the child was the subject of a customary adoption when the mother agreed to the adoption of her child by a Cree family from the child's community of origin. Subsequently, requests for intervention were made by the Cree Health Board and its own DYP as well as the Grand Council of the Crees and the Cree Regional Authority. The requests for intervention were based on treaty rights under the James Bay and Northern Quebec Agreement (“ JBNQA”), of which the mother is a beneficiary, on the exclusive jurisdiction of the Cree Board over the child's situation, as well as on the customary adoption – all of which would act as a bar to the eligibility request of the Montreal DYP. The two requests for leave to intervene were rejected by the lower court.
The Court of Appeal first addressed the question as to whether it was necessary to give notice to the Attorney General of Quebec before intervening. Justice Bich, writing for the Court, determined that the interveners did not have to provide such a notice under section 95 of the Code of Civil Procedure, given that the interveners were not claiming the inapplicability, invalidity or inoperability of a Quebec law. Rather, the proposed interventions concern the interpretation and application of provisions of a treaty as well as the Act respecting health services and social services for Cree Native persons, R.S.Q. c. S-5 (“AHSSSCNP”) regarding the jurisdiction of Cree institutions in matters of adoption of Cree children and over customary adoption.
The Court then discussed the interest of the appellants to intervene in the file. Justice Bich noted that interventions in matters of eligibility for adoption are exceptional. Nonetheless, she recognized that the claims put forth by the appellants could, if substantiated, result in a denial of the request for eligibility. Indeed, the appellants argued that, by operation of the JBNQA, the Act approving the agreement concerning James Bay and Northern Québec, R.S.Q. c. C-67 and the AHSSSCNP, only the Cree Board has jurisdiction to request that the child be declared eligible for adoption. The interveners also claim that a customary adoption took place, which could further result in the Montreal DYP's motion being inadmissible.
The Court of Appeal recognized that the questions raised in the case are of public interest and could affect other Cree beneficiaries of the JBNQA. This larger impact further supported the interest of the Cree Board to intervene, given its mandate pursuant to the JBNQA and the AHSSSCNP. The interest of the Grand Council of the Crees and the Cree Regional Authority were also recognized, given the questions of interpretation and application of the JBNQA treaty rights at issue.
The Court further discussed whether the proposed interventions would run counter to the interests of the individual child. In this regard, the Court concluded that the rights of the child are also engaged by virtue her status as a Cree beneficiary of the JBNQA.
Justice Bich also referred to the Convention on the Rights of the Child and confirmed the right of an Aboriginal child to belong to and live in its community of origin, a right which was recognized by Canada. The declaration of eligibility for adoption, says Justice Bich, would affect this right to which the child benefits.
The Court of Appeal thus granted the two requests for intervention.
Gowlings represents the interveners in this file.