Indigenous ontology, international law and the application of the Convention to the over-representation of Indigenous children in out of home care in Canada and Australia

Abstract

This paper explores the efficacy of the United Nations Convention on the Rights of the Child (Convention, UN General Assembly, 1989) through the lens of the over-representation of First Nations children placed in out-of-home care in Canada and Aboriginal and Torres Strait Islander children in Australia. A general overview of Indigenous worldviews frames a discussion on the coherence of international human rights law and instruments, including the Convention, account for Indigenous Peoples’ ontologies. The authors argue that the United Nations Declaration on the Rights of Indigenous Peoples (UN General Assembly, 2007) and a new theoretical framework published by the Pan American Health Organization (2019) on health equity and inequity are useful tools to augment the Convention’s coherence with Indigenous ontologies.The paper discusses how the Convention can be applied to structural and systemic risks driving the over-representation of First Nations and Aboriginal and Torres Strait Islander children in out of home care in Canada and Australia. These two countries are included as First Nations and Aboriginal and Torres Strait Islander peoples in these countries have both had significant impact in advocating for their children despite experiencing similar barriers including contemporary colonialism. The advocacy work of the First Nations Child and Family Caring Society in Canada and the Victorian Aboriginal Child Care Agency in Victoria, Australia are discussed.The paper ends by outlining some of the challenges ahead that include the need to meaningfully recognize Indigenous self-determination and equitable funding and resources to enable the actualization of self-determination. Further research contrasting international human rights instruments with Indigenous ontologies could help inform possible amendments to international human rights treaties and general comments.