Gitxsan family wins full custody over child in controversial case

There were hugs and cheers in a packed Hazelton courthouse on Thursday as a B.C. judge granted permanent custody to the family of a Gitxsan child whose fate has been up in the air until now.

"I was so relieved it's all finally over, our Gitxsan princess can finally have certainty," said the girl's auntie, whom the CBC is not identifying to protect the child's identity. The child's mother was also present for the ruling.

Provincial court judge Wendy Bernt ordered the girl be placed in the care of her auntie and uncle, who live in Gitxsan territory near Hazelton in northern B.C., about 445 kilometres northwest of Prince George.

For eight years, Gitxsan leaders have fought the child's paternal family and child welfare agencies to keep her in Gitxsan homelands.

"[It is] complete and utter relief, to tell you the truth," said Kirsten Barnes, legal counsel for the Gitxsan community. 

The judge also ruled the child's non-Gitxsan paternal family, including her paternal uncle, can have extended visits — two weeks every year — and calls with the child. The girl's father died in 2018.

Her paternal family were not in court on Thursday.

Ministry applied to have RCMP apprehend child

In April 2015, the child was temporarily placed in a foster home with a white family in Prince George after the girl's Gitxsan mother, who was struggling, entered into a voluntary care agreement with the Ministry of Children and Family Development (MCFD).

In the following years, Gitxsan leaders fought in court to bring the child home.

But in August 2021, against the wishes of the girl's Gitxsan family, MCFD placed the child with her paternal family, 4,000 kilometres away, in Ontario.

A few months later in October 2021, the child's Gitxsan family's request for her to return to B.C. for an extended visit was granted. When she arrived in Gitxsan territory, the child had a fractured collarbone — from falling out of her bed, according to her social worker.

Gitxsan leaders requested the girl stay until the ministry completed an investigation. But the ministry refused, Barnes said, and scheduled her return to Ontario about a week later.

On the day of the scheduled flight, Gitxsan leaders blocked an MCFD social worker from apprehending the girl. 

"It brought me to tears, I felt such immense pride and responsibility, because it showed me just how much every Gitxsan child means to our people," said Barnes, who is also Gitxsan.

A week later, in an emergency court hearing, the girl's paternal family and MCFD filed an application to have her apprehended by an RCMP officer.

"In light of everything happening with the Truth and Reconciliation Commission, they filed to have an Indigenous child apprehended by RCMP? Where is the cultural competency training in that?" said the girl's auntie.

MCFD did not respond to specific questions about the incident in time for publication, but in a statement said: "In all situations involving children and youth in care, our top priority is keeping them safely connected to their family, their community and their culture."

In the end, a judge denied the application for the child's apprehension, and made the application to keep the child in Gitxsan territory as there were no concerns over the child's safety.

Disputed Métis claims used in court

After an assessment of the girl's stay in Gitxsan territory, the ministry applied for the girl's transfer of custody to her auntie. 

But the court proceedings in Prince George took a unique turn in May 2022, when the Métis Commission for Children and Families of B.C. — a representative for Métis children, youth and families involved in the child welfare system — blocked the ministry's application, arguing the child's auntie should also agree to a cultural safety agreement to foster the child's Métis culture because the child's paternal family is Métis.

The auntie disagreed, saying the Métis heritage being claimed wasn't legitimate, and refused to sign the cultural safety agreement.

"There was no evidence that [the child] was Métis, the paternal cousins claimed Métis because they may have had a Mi'kmaq ancestor 100 years ago … and that doesn't make them Métis," she said.

According to court documents, provincial court judge Susan Mengering noted that a paternal cousin of the child identifies as Métis on both maternal and paternal sides.

"[The cousin's] father, who resides in Nova Scotia, is a registered member of a Métis tribe, the Eastern Woodland Métis Nation of Nova Scotia," reads the document.

The Eastern Woodland Métis Nation is not recognized by Métis groups, such as the Manitoba Métis Federation, or the federal government.

In 2019, Will Goodon of the Manitoba Métis Federation told CBC News that the Eastern Woodland Métis Nation "is hurting the Métis Nation by saying that they're us, but they're also hurting the people who live there, like the Mi'kmaq people."

He said the Mi'kmaq have expressed that the area now known as Nova Scotia is their territory. 

"If there was a mixed-ancestry community that lived there and was there, they would have known about it," Goodon added.

Barnes raised the auntie's concerns over the identity claims in court.

Mengering took issue with her arguments, saying, "I have serious concerns about the caregiver's ethnocentric view of Indigeneity … and her willingness to opine on matters of which she is woefully uninformed or misinformed."

The judge also raised numerous court decisions in defence of her judgment to require the Gitxsan family to abide by the Métis cultural safety plan.

The Métis Commission for Children and Families of B.C. did not return CBC's request for comment.

However the Métis Nation British Columbia (MNBC) reached out to CBC, saying it was at the court appearance on Thursday, and stands in support of the Gitxsan Nation and family. The group is not affiliated with the Métis Commission for Children and Families of British Columbia. 

"Our MNBC registry confirmed that this status First Nations child did not meet the accepted definition of being Métis on any point, and held that the Métis Commission was therefore overstepping the scope of jurisdiction in what was at heart a First Nations custody case and matter," a statement read.

"MNBC had formally requested the Métis Commission remove the requirement for a Métis Cultural Safety Agreement in this case as the child is simply not Métis."

'We can move forward and start to heal'

In June 2022, around the time he was asked in court to prove his Métis heritage, the girl's paternal cousin withdrew his application for custody. 

Meanwhile, requests from the child's Gitxsan family to have the case transferred to Hazelton from Prince George were granted.

Bernt, the new judge presiding over the case, did not cite the cultural safety agreement, and ruled that the child should stay with her auntie and uncle. 

It's the first time the girl has permanency in her life — a relief for the Gitxsan auntie.

"We can move forward and start to heal from all the trauma MCFD has caused our family."