Inuit Women and the Nunavut Justice System
Family Law Reforms in Nunavut
In 1988, an eight-member working group was appointed to examine family law in the NWT. This working group was comprised of representatives from Aboriginal organizations, including Pauktuutit, the status of Women Council, the Law Society of the NWT and the GNWT Departments of Justice and Social Services.
The report of the working group was released in September 1992 and contained 256 recommendations.
The family law issues examined by the working group included family property and dividing upon family break-up, levels of financial support for spouses and children, access issues, intestate laws, child welfare and adoption. A component of the study did explore Aboriginal customary family law.
A major recommendation of the group was the need to develop a new body of legislation for family matters. As a result, a significant portion of the recommendations and the report itself were very legalistic. Many of the recommendations are proposed wording changes to the existing laws and proposed wording for a new Children’s Law Act. Upon review, the recommendations are directed at harmonizing the territorial legislation with family laws in other provinces.
The report makes one general but significant recommendation worth noting—the establishment of Aboriginal Justice Councils is recommended to enable communities to control their own lives according to Aboriginal custom and community-based values of an alternative system to the existing court process for Aboriginal peoples in the NWT. The report recommends establishing Aboriginal Justice Councils with responsibilities for family law matters, operating on a community or regional basis. Working group members suggest that the primary responsibility of the Councils be child welfare and adoption of Aboriginal children. The communities themselves should determine what kind of responsibilities by the Aboriginal Justice Councils should assume. The structure, mandate and membership of the Councils is to be determined by the communities and regions in which they are established.
While the concept of Aboriginal Justice Councils was not acted upon, legislative reforms arising out of this report encourage community participation and control in family law matters. Only the Aboriginal Customary Adoption Recognition Act, passed in 1994, has an Aboriginal-specific focus.
The Aboriginal Custom Adoption Recognition Act sets out the procedure within the community by which an Aboriginal customary adoption is legally recognized by the Courts. Under the Act, an "Aboriginal custom adoption commissioner" is appointed for each community. The community councils are responsible for nominating up to four individuals for this position. Other than specifying that "Adoption Commissioners must know their community's customs and traditions about Aboriginal customary adoptions," the guidelines set down by the government leave much of the discretion regarding criteria for the position to each community. The guidelines specify that the Cabinet will consider the backgrounds of nominees before appointing them. If there are no objections or directions from Cabinet, the Minister will appoint an individual for the nominations provided by the community. Commissioners are required to receive training before they are appointed. The term is for three years and a Commissioner is paid $100.00 for each adoption that they are asked to confirm. The Commission is responsible for ensuring that traditional custom adoption procedures have been followed. Once satisfied of this, the commissioner can confirm a custom adoption has taken place according to tradition and issue a Certificate of Custom Adoption.
Alternatives to the courts resolving family law matters became more of a reality with the recent legislative changes and initiatives—Adoption Act, a Children’s Law Act, Children and Family Law Services Act, and a Family Law Act.. All of these laws while passed by the GNWT are grand-parented into Nunavut legislation and remain as Nunavut laws until such time as amended or repealed by the Nunavut Legislative Assembly.
- The Children’s Law Act and Family Law Act, both provide the courts with the power to appoint a person selected by the parties to mediate any matter that the court specifies.
- The Child and Family Services Act provides for greater community control over matters under the Act. These matters include:
- establishing a Child and Family Services Committee;
- defining the committee's role and the power and duties that it would fulfill under the Act; and
- setting a procedure to establish and change community standards with regards to the level of care adequate to meet a child's needs and whether or not a child is in need of protection.
Community standards must include the minimum community standards established by the regulations.
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