Across occupied Indigenous nations, child protection systems remain one of the most enduring sites of colonial power [...]

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.

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.

The persistence of state violence perpetrated against Aboriginal and Torres Strait Islander families is evident from first contact to contemporary child welfare interventions. These interventions have been authorised by laws and policies which have forcefully separated children from their families and communities legally and illegally, separated families through exerting control over where they could live, who could marry whom, and how their identity was legally defined. These laws and policies have also systematically excluded Aboriginal and Torres Strait Islander families from opportunities and benefits for wealth creation, laying the foundations for inter-generational experiences of poverty and trauma. The shift from formal discrimination under the auspices of ‘protection’ to assimilation saw an increase in interventions and removal of Aboriginal and Torres Strait Islander children from their families. There is continuity across different laws and policies in the presumptions about western family superiority, the embedding of non-Indigenous priorities and aspirations in law and policy, and the failure of the state to take responsibility for inter-generational harms perpetrated, or a willingness to relinquish power exercised over Aboriginal families.

In 1997 the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families ('National Inquiry') released its report 'Bringing Them Home ('BTH')'. The National Inquiry found that almost every Indigenous family in Australia is affected by former government policies which enabled the removal of children from their families on the basis of their Indigeneity. About a third of 'BTH' addresses contemporary removals under child welfare, juvenile justice and family law. The National Inquiry found that human rights based law and policy reforms must be implemented to ensure that Indigenous families and communities in Australia never again suffer the forcible removal of their children because of their ethnicity.

In February 2007 the First Nations Child and Family Caring Society of Canada (Caring Society) and Assembly of First Nations (AFN) lodged a discrimination claim against Canada under the Canadian Human Rights Act 1985 (CHRA) claiming inequality in funding of child welfare services to First Nations children on reserves. This case, which seven years later is still being litigated, reveals the colonial presumptions which surface when human rights claims challenge the states’ social and economic exercise of power through its monopoly over the distribution of resources. Canada’s attempts to hide behind technical arguments illustrate how fragmentation of legal and moral responsibility and formalistic decision-making serve to deflect attention from and responsibility for the systemic inequalities experienced by Indigenous children.

Review(s) of: Our greatest challenge: Aboriginal children and human rights, by Hannah McGlade, Aboriginal Studies Press, 2012, 256pp, $39.95 (paperback).

Case-based child welfare services, delivered by bureaucratic government departments and in empirical data do not provide good outcomes for Indigenous children and young people. Further, an individualised approach conceals the systemic factors which drive inequality and high levels of contact with child welfare systems in particular with respect to neglect. This chapter examines why decision making within bureaucratic child welfare departments does not attain good outcomes for Indigenous children and why a policy of self-determination, within a human rights framework, is likely to provide a better framework for decision-making. This chapter considers the relationship between modes of decision making and the exercise of moral agency by decision makers and why valid and legitimate decision with respect to Indigenous children's well being need to substantially include Indigenous experience in the decision making process. Consideration is given to the justification for separate Indigenous making bodies, which are implied in policies and processes of self-determination. These justifications are found in terms of a commitment to political equality, in the historical and practical experiences of Indigenous peoples, which distinguish them from other minority or majority groups, in the the rule of law. It is suggested that recognition of Indigenous identity, histories and perspectives in decision making with respect to Indigenous children and young people's well being will contribute not only to more just and effective outcomes for Indigenous families but also to a more dynamic and enlarged democracy for the broader community.

Indigenous Legal Relations in Australia is a comprehensive and clearly argued text designed to suit the needs of Law and Indigenous Studies students. An integrated series of chapters, utilising case studies and questions to develop arguments on specific issues, this text studies the issues surrounding Indigenous people’s contact with Anglo-Australian law, dealing primarily with the problems the imposed law has had in its relationship with Indigenous people in Australia. This book is broad in scope and covers issues relating to sovereignty, jurisdiction and territorial acquisition; family law and child protection; criminal law, policing and sentencing; land rights and native title; cultural heritage, heritage protection and intellectual property; anti-discrimination law; international human rights law and constitutional law.

The article discusses Aboriginal and Torres Strait Islander children's welfare within a human rights framework. The three matters related to Aboriginal and Torres Strait Islander children's contemporary human rights are also highlighted.