Gitxsan family wins full custody over child in controversial case

There were hugs and cheers in a packed Hazelton courthouse on Thursdayas 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'sidentity. The child's mother was also present for the ruling.

Provincial court judgeWendy Bernt ordered the girl be placed in the care of her auntieand uncle, who livein 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.

Ministryapplied to have RCMP apprehend child

In April 2015,the childwas temporarily placed in a foster home with a white family inPrince 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).

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

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

A few months laterin October 2021, the child'sGitxsan family's request for herto 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 girlstayuntil 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 MCFDsocial 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 filedan application to have her apprehended by an RCMP officer.

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

MCFDdid 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, ajudgedenied the application for the child's apprehension, andmade the application to keep the child in Gitxsan territory as there wereno concerns over the child's safety.

Disputed Mtis 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 thecourt proceedingsin Prince George took a unique turn in May 2022, when the Mtis Commission for Children and Families of B.C. a representative for Mtis children, youth and families involved in the child welfare system blocked the ministry's application, arguing the child'sauntie should also agree to a cultural safety agreement to foster the child'sMtisculture becausethe child'spaternal family is Mtis.

The auntie disagreed, saying the Mtis heritage being claimed wasn't legitimate, and refusedto sign thecultural safety agreement.

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

According to court documents, provincial court judge Susan Mengeringnoted thata paternal cousin of thechild identifies as Mtison both maternal and paternal sides.

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

TheEastern Woodland Mtis Nation is not recognized by Mtis groups, such as the Manitoba Mtis Federation, or the federal government.

In 2019, Will Goodon of the Manitoba Mtis Federation toldCBCNews that the Eastern Woodland Mtis Nation"is hurting the Mtis 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 knownas Nova Scotia is theirterritory.

"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 Mtis cultural safety plan.

The Mtis Commission for Children and Families of B.C. did not return CBC'srequest for comment.

However the Mtis 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 Mtis 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 Mtis on any point, and held that the Mtis 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 Mtis Commission remove the requirement for a Mtis Cultural Safety Agreementin this case as the child is simply not Mtis."

'We can move forward and start to heal'

In June 2022, around the time he wasasked in court to prove hisMtis heritage, the girl's paternal cousinwithdrew 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."