Natural Parents v. Superintendent of Child Welfare et al.

Natural Parents v. Superintendent of Child Welfare et al.
Collection
Supreme Court Judgments
Date
1975-10-07
Report
[1976] 2 SCR 751
Judges
Laskin, Bora; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; de Grandpré, Louis-Philippe
On appeal from
British Columbia
Subjects
Aboriginal law
Decision Content
Supreme Court of Canada
Natural Parents v. Superintendent of Child Welfare et al., [1976] 2 S.C.R. 751
Date: 1975-10-07
The Natural Parents Appellants;
and
The Superintendent of Child Welfare and The Petitioners For Adoption Respondents;
and
Attorney General of Canada, Attorney General of Alberta, Attorney General of British Columbia, Attorney General of Ontario and Attorney General of Saskatchewan Intervenors.
1974: October 28, 29; 1975: October 7.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Indians—Adoption—Whether non-Indian parents may adopt Indian child—Applicability of provincial adoption legislation to Indians—Adoption Act, R.S.B.C. 1960, c. 4, s. 10, as amended by 1973 (B.C.) (2nd sess.), c. 95, s. 1—Indian Act, R.S.C. 1970, c. I-6, ss. 11, 88—British North America Act, 1867, s. 91(24).
A petition by the respondent petitioners (a non-Indian married couple) for the adoption of an Indian child was dismissed at first instance. The trial judge, although satisfied on the merits that an adoption order should be made without the consent of the natural parents, held that there was an inconsistency between the Adoption Act, R.S.B.C. 1960, c. 4, and the Indian Act, R.S.C. 1970, c. I-6, which precluded such an order. In his opinion, the Indian Act clothed those within its terms with a certain status from which alone certain rights arose, and that status would be obliterated by the operation of the Adoption Act. The British Columbia Court of Appeal was unanimously of the opinion that Indian status survived despite adoption. It held that the Adoption Act, as a provincial statute of general application, applied to the adoption of Indian children, and was blunted only to the extent of inconsistency with the Indian Act. The addition, between the date of the judgment at first instance and the hearing of the appeal, of s. 10(4a) to the Adoption Act (which sought to provide that s. 10 of the Act should not affect the status of an adopted Indian person acquired as an Indian under the Indian Act) reinforced the view that there was no infringement on matters within the Indian Act. The Indian Act would prevail if there was an inconsistency but that was no reason to hold that the Adoption Act could not apply at all to Indians.
The Court of Appeal also reached and rejected an issue as to the application of the Canadian Bill of Rights by holding (1) that s. 88 of the Indian Act did not referentially incorporate the Adoption Act so as to make it federal legislation for the purposes of the Canadian Bill of Rights, and (2) that even if there was referential incorporation, there was no violation of the Canadian Bill of Rights, either by way of discrimination on account of race or by way of inequality before the law, especially in the light of the concession by counsel for the natural parents that the Indian Act was valid federal legislation that did not in its relevant terms contravene the Canadian Bill of Rights. In the result, the Court of Appeal concluded that the Adoption Act applied to Indians, subject to the provisions of the Indian Act, and that an order of adoption should be made. On appeal to this Court, the Court did not call upon the respondents or the intervenors to make submissions on the Canadian Bill of Rights, being of the opinion that, on the assumption that the Adoption Act, by referential incorporation, is federal legislation, there was nothing in it to bring any of the prescriptions of the Bill of Rights into play.
Held: The appeal should be dismissed.
Per Laskin C.J. and Judson, Spence and Dickson JJ.: By virtue of s. 88 of the Indian Act, there was incorporation by reference of the Adoption Act into the Indian Act, and, accordingly, it was immaterial that the Provincial Legislature introduced s. 10 (4a) into the Adoption Act.
Treating the Adoption Act as referentially incorporated, the central question became one of the extent to which that Act is inconsistent with the Indian Act. In view of the effect of s. 10 of the Adoption Act (as an incorporated provision in the Indian Act) upon parentage, was it open to say that notwithstanding adoption by non-Indians the Indian child still has entitlement to be or to continue to be registered as an Indian under s. 11 of the Indian Act? This was the key provision going to consistency or inconsistency, since “Indian” is defined in the Indian Act as “a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian”.
It was not contested that the Indian child in this case comes within s. 11(1)(d) unless the effect of an adoption order would be to remove him from that classification. Section 10(2) of the Adoption Act speaks of a cessation, upon adoption, of the relationship of the child to his natural parents and of the natural parents to the child “for all purposes”. These quoted words do not destroy entitlement to registration under s. 11(1)(d) of the Indian Act.
On the key issue of registrability no inconsistency was found between the Adoption Act and the Indian Act.
Per Martland J. (and Pigeon and de Grandpré JJ. as to the meaning and effect of s. 88 of the Indian Act): There is no conflict between the provisions of the Adoption Act and the Indian Act. The words “for all purposes” in subss. (1) and (2) of s. 10 of the Adoption Act must be taken to refer to all purposes within the competence of the British Columbia Legislature. Section 10, even prior to the enactment of subs. (4a), did not purport to deprive the child of any status or rights which he possessed under the Indian Act at the time of his adoption, and it is clear that no provincial legislation could deprive him of such rights.
With respect to the constitutional validity of subs. (4a), the purpose of this amendment to s. 10 was merely to make it clear that the Legislature did not intend that the Adoption Act should be construed as encroaching upon a legislative area which was beyond its competence. If it purported to have any effect beyond that it would be ultra vires of the Legislature as being legislation in relation to Indians.
As to the impact of s. 88 of the Indian Act upon the circumstances of this case, s. 88 was not regarded as intending to incorporate, as part of federal legislation in respect of Indians, all provincial laws of general application. To adopt this view would be to say that in respect of one class of persons, i.e.,Indians, only federal law should apply to them, and subject to federal enforcement. It would mean that Parliament, by enacting s. 88, had caused valid provincial legislation, properly applicable to Indians, to cease to have effect as provincial legislation, by incorporating it as federal legislation into the Indian Act. The wording of s. 88 does not purport to incorporate the laws of each province into the Indian Act so as to make them a matter of federal legislation. The section is a statement of the extent to which provincial laws apply to Indians.
Per Ritchie J.: Section 88 of the Indian Act does not have the effect of incorporating provincial legislation as part of the Indian Act and thereby converting it into legislation passed by the Parliament of Canada. When Parliament passed the Indian Act it was concerned with the preservation of the special status of Indians and with their rights to Indian lands, but it was made plain by s. 88 that Indians were to be governed by the laws of their province of residence except to the extent that such laws are inconsistent with the Indian Act or relate to any matter for which provision is made under that Act.
The Adoption Act is not a statute enacted in relation to Indians “under the Indian Act” and its provisions, including those of s. 10, do not affect the “status, rights, privileges, disabilities and limitations… acquired as an Indian under the Indian Act”. The Adoption Act only applies to Indians by reason of their character as citizens of the Province of British Columbia and there is no conflict between that statute and the Indian Act. It followed that the newly added subs. (4a) to s. 10 of the Adoption Act made no change in the law. It was ineffective rather than ultra vires.
Per Pigeon, Beetz and de Grandpré JJ.: The only question directly raised in this case was whether an Indian child can be legally adopted by non-Indian parents. The Indian Act, in s. 2(1), explicitly contemplates legal adoption although it does not otherwise provide for it. Provincial laws must therefore apply; there are no others. None of the provisions of the Indian Act forbids the adoption of an Indian child by non-Indian parents. The Adoption Act does not distinguish either, assuming that it could, which is most unlikely. It could not be accepted that laws general in their terms ought to be interpreted so as not to extend all their advantages to a child because he is an Indian.
Even if one assumed that the child would lose his Indian status as a consequence of the adoption order, this in no way would conflict with the Indian Act. There could be no conflict either by way of outright repugnancy or by way of occupation of the field since the Indian Act, silent as it is on the conditions, formalities and effects of legal adoption, does not even purport to occupy the field.
Subsection (4a) of the Adoption Act is clearly ultra vires. How Indian status is affected, by adoption or otherwise, is a matter coming within the class of subjects mentioned in s. 91(24) of the British North America Act, 1867. APPEAL from a judgment of the Court of Appeal for British Columbia[1], allowing an appeal from a judgment of Tyrwhitt-Drake L.J.S.C. Appeal dismissed.
J.J. Gow and D.R. Wilson, for the appellants.
B.R.D. Smith, for the respondents.
N.D. Mullins, Q.C., and G.C. Carruthers, for the Attorney General of Canada.
K. Lysyk, Q.C., for the Attorney General of Saskatchewan.
M. Manning, for the Attorney General of Ontario.
W. Henkel, Q.C., for the Attorney General of Alberta.
The judgment of Laskin C.J. and Judson, Spence and Dickson JJ. was delivered by
THE CHIEF JUSTICE—The question in this appeal concerns the validity of an adoption order made in respect of a male Indian child in favour of a non-Indian couple who had provided a foster home for the child. The child’s natural parents, who were registered members of a band under the Indian Act, R.S.C. 1970, c. I-6, he too being entitled to registration thereunder, objected to the adoption, but it was held at first instance that their consent should be dispensed with. No objection is taken to the regularity of the adoption proceedings, but a constitutional question was raised in respect of the Adoption Act, R.S.B.C. 1960, c. 4 and, more particularly, in respect of that Act as amended by the addition thereto of s. 10(4a) by 1973 (B.C.) (2nd sess.), c. 95, s. 1. Connected to this question is the effect of s. 88 of the Indian Act.
The judge at first instance, although satisfied on the merits that an adoption order should be made without the consent of the natural parents, held that there was an inconsistency between the Adoption Act and the Indian Act which precluded such an order. In his opinion, the Indian Act clothed those within its terms with a certain status from which alone certain rights arose, and that status would be obliterated by the operation of the Adoption Act. The British Columbia Court of Appeal was unanimously of the opinion that Indian status survived despite adoption. It held that the Adoption Act, as a provincial statute of general application, applied to the adoption of Indian children, and was blunted only to the extent of inconsistency with the Indian Act. The addition of s. 10(4a) to the Adoption Act, between the date of the judgment at first instance and the hearing of the appeal, reinforced the view that there was no impingement on matters within the Indian Act. The Indian Act would prevail if there was an inconsistency but that was no reason to hold that the Adoption Act could not apply at all to Indians.
The British Columbia Court of Appeal also reached and rejected an issue as to the application of the Canadian Bill of Rights by holding (1) that s. 88 of the Indian Act did not referentially incorporate the Adoption Act so as to make it federal legislation for the purposes of the Canadian Bill of Rights, and (2) that even if there was referential incorporation, there was no violation of the Canadian Bill of Rights, either by way of discrimination on account of race or by way of inequality before the law, especially in the light of the concession by counsel for the natural parents that the Indian Act was valid federal legislation that did not in its relevant terms contravene the Canadian Bill of Rights. In the result, the British Columbia Court of Appeal concluded that the Adoption Act applied to Indians, subject to the provisions of the Indian Act, and that an order of adoption should be made.
The legislative provisions particularly germane to the disposition of this appeal are s: 10 of the Adoption Act, as amended, and s. 88 of the Indian Act, and they read as follows:
Adoption Act, s. 10, as amended
10. (1) For all purposes an adopted child becomes upon adoption the child of the adopting parent, and the adopting parent becomes the parent of the child, as if the child had been born to that parent in lawful wedlock. (2) For all purposes an adopted child ceases upon adoption to be the child of his existing parents (whether his natural parents or his adopting parents under a previous adoption), and the existing parents of the adopted child cease to be his parents.
(3) The relationship to one another of all persons (whether the adopted person, the adopting parents, the natural parents, or any other persons) shall be determined in accordance with subsections (1) and (2).
(4) Subsections (2) and (3) do not apply, for the purposes of the laws relating to incest and to the prohibited degrees of marriage, to remove any persons from a relationship in consanguinity which, but for this section, would have existed between them.
(4a) The status, rights, privileges, disabilities, and limitations of an adopted Indian person acquired as an Indian under the Indian Act (Canada) or under any other Act or law are not affected by this section.
(5) This section is to be read subject to the provisions of any Act which distinguishes in any way between persons related by adoption and persons not so related.
(6) This section does not apply to the will of a testator dying before or to any other instrument made before the seventeenth day of April, 1920.
(7) This section applies to adoptions made by the Court or by the Provincial Secretary under legislation heretofore in force.
(8) For the purpose of this section, “child” includes a person of any age, whether married or unmarried. Indian Act, s. 88
Subject to the terms of any treaty and any other Act of the Parliament of Canada, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that such laws are inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that such laws make provision for any matter for which provision is made by or under this Act.
I refer also to s. 2(1) of the Indian Act in which “child” is defined to include “a legally adopted Indian child” (in the French version “un enfant indien légalement adopté”) and s. 48(16) defining “child”, for the purpose of that section (being a section respecting distribution of property on an intestacy), to include “a legally adopted child and a child adopted in accordance with Indian cus- torn”. These provisions show that adoption is within the scope of the Act, albeit that the general definition in s. 2 is confined to adoption of an Indian child and, in my view, in any context involving parental relationship it would be limited to an Indian child of Indian parents.
The submissions of the appellants against the validity of the adoption order are based on a series of related propositions which I may summarize as follows. The Indian Act, which, as enacted in its present form in 1951 by 1951 (Can.), c. 29, and which introduced at that time the Indian register and as well s. 88, makes the original family tie the essence of Indian status and keeps the child in that status (at least until enfranchisement as provided in s. 109). Since adoption under the Adoption Act by non-Indian persons would obliterate the family ties and hence destroy the status, the Act cannot of its own force apply to status Indians and, indeed, would be an encroachment on federal legislative power in relation to Indians under s. 91(24) of the British North America Act. If the provincial Adoption Act applies at all, it can only apply through referential incorporation under s. 88 of the Indian Act, but it cannot be squared with s. 88 because of irreconcilable inconsistency. However, if it does so apply and can operate consistently to some degree, this can only be if it is restricted to the adoption of a status Indian child by status Indians. Appellants went on to contend that if there was no such limitation to the force of the Adoption Act, it would run foul of the Canadian Bill of Rights because there would be discrimination on account of race and inequality before the law.
The respondents, whose counsel also appeared for the Attorney General of British Columbia, were supported in this appeal by the Attorney General of Canada and the Attorneys General of Saskatchewan, Ontario and Alberta. The main thrust of their submissions was to assert that the Adoption Act applied ex proprio vigore to the adoption of Indian children and hence no question arose under the Canadian Bill of Rights. An alter- native submission, made particularly by the respondents’ counsel, was that even if the Adoption Act applied through referential incorporation, there was nothing inconsistent in giving force to that Act and still recognizing the survival of the Indian status of the adopted child under the Indian Act.
This Court did not call upon the respondents or the intervenors to make submissions on the Canadian Bill of Rights, being of the opinion that, on the assumption that the Adoption Act, by referential incorporation, is federal legislation, there was nothing in it to bring any of the prescriptions of the Canadian Bill of Rights into play. I would in this connection adopt the remarks of the British Columbia Court of Appeal on this issue.
I do not, however, agree with the British Columbia Court of Appeal that there was no referential incorporation in this case. Whether there was or was not depends not only on the meaning and scope of the phrase “all laws of general application from time to time in force in any province” in s. 88 of the Indian Act, but, as well and preliminarily, on the relation between so-called provincial laws of general application and federal legislative powers in relation to matters that, absent federal legislation, are alleged to be governed by those provincial laws in some of their aspects. In this connection I draw attention to the judgment of this Court in The Queen v. George[2], in which Martland J. pointed out at pp. 280-281 that the now s. 88 (it was then s. 87) in speaking of “laws of general application from time to time in force in any province” referred to “those rules of law in a province which are provincial in scope”, including laws of England adopted as part of provincial law.
There was no challenge in this Court to the general and long-established proposition found in Union Colliery Co. of British Columbia Ltd. v. Bryden[3], at p. 588 that “the abstinence of the Dominion Parliament from legislating to the full limit of its powers could not have the effect of transferring to any provincial legislature the legis- lative power which had been assigned to the Dominion by s. 91 of the Act of 1867”. It cannot be said therefore that because a provincial statute is general in its operation, in the sense that its terms are not expressly restricted to matters within provincial competence, it may embrace matters within exclusive federal competence. Thus, to take an example, it has been held by this Court that general mechanics’ lien legislation of a province could not be enforced against the property of an interprovincial pipe line: Campbell-Bennett Ltd. v. Comstock Midwestern Ltd.[4] Again, provincial minimum wage legislation was held inapplicable to the employees of an interprovincial communications enterprise: see Minimum Wage Commission v. Bell Telephone Co. of Canada Ltd.[5], and, similarly, inapplicable to employees of a local contract postmaster: see Reference re Saskatchewan Minimum Wage Act[6]. This is because to construe the provincial legislation to embrace such activities would have it encroaching on an exclusive federal legislative area. On the other hand, provincial hours of work legislation was held applicable to employees of a hotel owned and operated by a railway company but not as an integral part of its transportation system: see C.P.R. v. Attorney General of British Columbia[7].
Ex facie, and apart from the amendment of 1973 introducing s. 10(4a), the Adoption Act did not purport to extend to areas of exclusive federal competence, e.g. Indians. It could only embrace them if the operation of the Act did not deal with what was integral to that head of federal legislative power, there being no express federal legislation respecting adoption of Indians. It appears to me to be unquestionable that for the provincial Adoption Act to apply to the adoption of Indian children of registered Indians, who could be compelled thereunder to surrender them to adopting non-Indian parents, would be to touch “Indian- ness”, to strike at a relationship integral to a matter outside of provincial competence. This is entirely apart from the question whether, if referentially incorporated, the Adoption Act could have any force in the face of various provisions of the Indian Act, securing certain benefits for Indians.
Counsel for the respondents cited a number of cases holding Indians to be subject to provincial legislation. Among them was Rex v. Hill[8] and Rex v. Martin[9]. These, and other like cases, are simply illustrative of the amenability of Indians off their reservations to provincial regulatory legislation, legislation which, like traffic legislation, does not touch their “Indianness”. Such provincial legislation is of a different class than adoption legislation which would, if applicable as provincial legislation simpliciter, constitute a serious intrusion into the Indian family relationship. It is difficult to conceive what would be left of exclusive federal power in relation to Indians if such provincial legislation was held to apply to Indians. Certainly, if it was applicable because of its so-called general application, it would be equally applicable by expressly embracing Indians. Exclusive federal authority would then be limited to a registration system and to regulation of life on a reserve.
The fallacy in the position of the respondents in this case and, indeed, in that of all the intervenors, including the Attorney General of Canada, is in the attribution of some special force or special effect to a provincial law by calling it a “provincial law of general application”, as if this phrase was self-fulfilling if not also self-revealing. Nothing, however, accretes to provincial legislative power by the generalization of the language of provincial legislation if it does not constitutionally belong there.
This is, no doubt, overly obvious, but it is compelled by the nature of the submissions made in this case by the respondents and the intervenors. If the phrase “provincial laws of general application” has any source, it is in the “federal company” cases, involving the relationship of general companies legislation of a province to federally incorporated companies. Thus, in John Deere Plow Co. v. Wharton[10], at pp. 342-3, Lord Haldane commented as follows:
It is true that even when a company has been incorporated by the Dominion Government with powers to trade, it is not the less subject to provincial laws of general application enacted under the powers conferred by s. 92.
The history of this matter is well known because from the very beginning of its concern with the British North America Act the Privy Council drew a distinction between authority to incorporate companies and to prescribe their powers and their corporate structure and the internal relationship of shareholders and directors and authority to regulate the activities or enterprises in which the companies are engaged. It was in this connection that Lord Haldane made the observation above quoted. Yet in the very case in which he made it, the Privy Council concluded that it was not open to a province under its general companies legislation to require a licence of a federally incorporated company as a condition of carrying on business qua company because this would in effect prevent it from exercising the powers with which it was endowed by federal authority. Attorney General of Manitoba v. Attorney General of Canada[11], and Lymburn v. Mayland[12] are two contrasting cases in which the principle of John Deere Plow, seen in later cases like Great West Saddlery Co. v. The King[13], was applied to provincial legislation which was alleged to put federally incorporated companies at the mercy of the province in respect of the sale of their shares. The particular results in those two cases are of no direct relevance here, but simply illustrate the care that must be taken in the analysis of the issues and of the provincial legislation before subjecting federally incorporated companies to general provincial companies legislation. I cannot believe that any less care should be taken in analysis before subjecting Indians, coming as they do within a specific head of exclusive federal jurisdiction, to general provincial legislation, unless the inclusion of Indians within the scope of the provincial legislation touches them as ordinary persons and in a way that does not intrude on their Indian character or their Indian identity and relationship.
I would add that to give a primary effect to so-called “provincial laws of general application”, in the face of s. 88 of the Indian Act, is to fall into the same trap that was noted by Judson J. in Nykorak v. Attorney General of Canada[14]. The fact is that we are concerned here with a federal enactment which would be robbed of any meaning if the respondents’ and intervenors’ submissions went as far as they appeared to carry them. When s. 88 refers to “all laws of general application from time to time in force in any province” it cannot be assumed to have legislated a nullity but, rather, to have in mind provincial legislation which, per se, would not apply to Indians under the Indian Act unless given force by federal reference.
I am fully aware of the contention that it is enough to give force to the several opening provisions of s. 88, which, respectively, make the “provincial” reference subject to the terms of any treaty and any other federal Act and subject also to inconsistency with the Indian Act and orders, rules, regulations or by-laws thereunder. That contention would have it that s. 88 is otherwise declaratory. On this view, however, it is wholly declaratory save perhaps in its reference to “the terms of any treaty”, a strange reason, in my view, to explain all the other provisions of s. 88. I think too that the concluding words of s. 88, “except to the extent that such laws make provision for any matter for which provision is made by or under this Act” indicate clearly that Parliament is indeed effecting incorporation by reference. To hold otherwise would be to reject the proposition quoted earlier from the Union Colliery Co. case and to treat the distribution of legislative powers as being a distribution of concurrent powers.
In the view I take, I find it immaterial that the provincial Legislature introduced s. 10(4a) into the Adoption Act. It may properly be considered as an abjuring provision, but there is the point, which was raised during the hearing, that if the province does indeed claim that its Act applies to interfere in Indian family relationships, s. 10(4a) may be constitutionally suspect. I do not find it necessary to pursue this point.
Treating the Adoption Act as referentially incorporated, the central question in this case becomes one of the extent to which that Act is inconsistent with the Indian Act. Certainly, there would be no problem of consistency or inconsistency if, as the appellants urge, the incorporation was limited to adoption of Indian children by Indians. Whether it should be so limited depends on the effect of adoption under the incorporated Act upon the position of an Indian child under the Indian Act. For this purpose, I am not concerned with the actual administration of the incorporated legislation, that is with whether a case for adoption of the particular child by the particular applicants is made out and whether the case is one where the consent of the natural parents should be dispensed with. Assumptions to these ends must be made to focus on the issue of consistency.
In view of the effect of s. 10 of the Adoption Act (as an incorporated provision in the Indian Act) upon parentage, is it open to say that notwithstanding adoption by non-Indians the Indian child still has entitlement to be or to continue to be registered as an Indian under s. 11 of the Indian Act? This, in my view, is the key provision going to consistency or inconsistency, since “Indian” is defined in the Indian Act as “a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian”. Section 11, so far as relevant, reads as follows: 11. (1) Subject to section 12, a person is entitled to be registered if that person
(a) on the 26th day of May 1874 was, for the purposes of An Act providing for the organization of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, being chapter 42 of the Statutes of Canada, 1868, as amended by section 6 of chapter 6 of the Statutes of Canada, 1869, and section 8 of chapter 21 of the Statutes of Canada, 1874, considered to be entitled to hold, use or enjoy the lands and other immovable property belonging to or appropriated to the use of the various tribes, bands or bodies of Indians in Canada;
(b) is a member of a band
(i) for whose use and benefit, in common, lands have been set apart or since the 26th day of May 1874, have been agreed by treaty to be set apart, or
(ii) that has been declared by the Governor in Council to be a band for the purposes of this Act;
(c) is a male person who is a direct descendant in the male line of a male person described in paragraph (a) or (b)
(d) is the legitimate child of
(i) a male person described in paragraph (a) or (b),
or
(ii) a person described in paragraph (c);…
I may say here that s. 12 of the Indian Act, mentioned in the opening words of s. 11 above, does not have any bearing here.
It has not been contested that the Indian child in this case comes within s. 11 (1)(d) unless the effect of an adoption order would be to remove him from that classification. Section 10(2) of the Adoption Act, previously quoted, speaks of a cessation, upon adoption, of the relationship of the child to his natural parents and of the natural parents to the child “for all purposes”. These quoted words do not destroy entitlement to registration under s. 11(1)(d) of the Indian Act. They would equally be involved if the adoption of the Indian child was by Indian adopting parents, and yet counsel for the appellants did not urge that there was complete inconsistency in that situation. There may, indeed, be some situations under the Indian Act with which an adoption order and the effect given to it may not be squared. That, however, should not exclude adoption per se through the incorporating effect of s. 88, since adoption legislation is ruled out only to the extent that it is inconsistent.
I do not find that on the key issue of registrability there is inconsistency between the Adoption Act and the Indian Act. I would be loathe to give such a wide construction (and it is construction only with which we are here concerned) to the incorporated s. 10(2) of the Adoption Act as to create incompatibility with the continuing effect of s. 11(1)(d) of the Indian Act. This would result in excluding Indian children from possible adoption (save perhaps by Indian custom as mentioned in s. 48(16)) outside of the Indian community, a result to which I would not come unless clearly compelled to do so by unambiguous legislation.
For these reasons, differing somewhat from those of the British Columbia Court of Appeal, I would dismiss the appeal. This is not a case for costs in any Court.
MARTLAND J.—This case is concerned with a petition by the respondent petitioners for the adoption of an Indian child, now over seven years of age. The petitioners are not Indians. The petition was made pursuant to the provisions of the Adoption Act, R.S.B.C. 1960, c. 4. Section 8 of the Act contains the following provisions:
8. (1) Subject to the provisions of subsection (6), no adoption order may be made without the written consent to adoption of
(a) the child, if over the age of twelve years;
(b) the parents or surviving parent of the child, provided that, if the child, is illegitimate at the time the mother’s consent was signed and has not previously been adopted, only the mother’s consent is required, and, notwithstanding anything contained in the Legitimacy Act, no further consent shall be required by reason of the legitimation of the child;
…
(6) The Court may dispense with any consent required by subsection (1) if satisfied that the person whose consent is to be dispensed with has abandoned or deserted the child or cannot be found or is incapable of giving such consent, or, being a person liable to contrib- ute to the support of the child, either has persistently neglected or refused to contribute to such support or is a person whose consent ought, in the opinion of the Court and in all the circumstances of the case, to be dispensed with, and the Court may act on the written report of the circumstances by the Superintendent, without futher evidence.
The facts are summarized in the reasons of the trial judge when dealing with the application of the petitioners to dispense with the consent of the natural parents of the child to the adoption:
The child in question is of native origin, the son of registered members of a band. He is thus a person to whom the Indian Act, R.S.C. 1970, cap. I-6, applies. At the age of 7 weeks or so he was admitted to hospital in a condition near death as a result of injury and neglect. He came under the care of the female petitioner, a registered nurse on the staff of the hospital, and it is a fair inference from the evidence that she was instrumental in preserving his life. In due course the baby was discharged from hospital (having been apprehended under the Protection of Children Act, R.S.B.C. 1960, cap. 303) to the care of the petitioners on an official foster home basis, and thereafter (save for a short period which he spent with his natural parents at the age of 3), which resulted in another episode requiring a stay in hospital) has been brought up by them. There is no doubt at all, in my view of the evidence, that he is now a member of their family in every way but blood relationship, and that it would be a cruel and damaging thing to remove him from that family. His status at the moment is that of a ward of the Superintendent of Child Welfare.
The natural parents have had difficult lives. They do not propose to take the boy into their own immediate family—in which they show some wisdom, for on the evidence I cannot possibly hold them to be fit and proper parents—but instead propose that he be raised by an aunt. This lady and her husband testified that they were willing and anxious to undertake the duty. They have impressive credentials as foster parents, and in my opinion showed themselves to be admirable and suitable people in every way. It is true that in the past, having taken certain preliminary steps, they did not pursue the matter of formal adoption. Only now do they come forward and state their position. While delay of this sort might be regarded as a lack of due diligence on the part of the wealthy and the well advised, I do not regard it in that light in the circumstances of this case.
I am much indebted to certain prominent native people who attended the hearing at my request as friends of the Court, to inform me as to tribal custom in the matter of adoption and family relationships generally. Mrs. Audrey Sampson, Mr. Phillip Paul, for many years Chief of the Tsartlip Band and now holding a responsible office in the education field, and Chief John Albany of the Songhees Band advised me, and were of great assistance. I am of the view that native custom, speaking very generally (for there are slight differences between those of one people and another), recognizes a form of adoption: the rearing of children was and is not the exclusive responsibility of the parents, though they have primary rights and duties. Grandparents, uncles and aunts share this responsibility to a great extent. In native society, originally matrilineal, it is usual nowadays for grandmothers and aunts to take in and rear children when their parents, for one reason or another, cannot themselves do so. Many instances of this custom were given (and see also James Sewid, Guests Never Leave Hungry, 1969, University of Washington Press). I think it is general, and much in use today. It brings about something very close to our notion of adoption: a notion which is common to all legal systems, West Coast native custom as well as our Roman derived law.
Those who gave evidence, as well as the Court’s own advisers, were all of the opinion that there was potential danger to a native child being brought up in a white family, particularly when he reached the later stages of adolescence. I can readily appreciate this view: it is based on perfectly sound ideas of the effects of heredity and is not a matter merely emotional or racial. Instances abound where such persons have in the past experienced difficulty in establishing racial identity in their maturity.
However, there is another view. One must not forget the effects of environment upon personality; and I have on this point the evidence of Dr. Rasmussen, the family doctor of the petitioners, who has attended the child all his life, is well acquainted with his immediate family, and who struck me as not only a learned, but a sensible physician. Dr. Rasmussen, while not discounting heredity, made a strong case for an intelligently imposed environment being largely determinative of the direction of personality growth—and I am in no doubt at all as to the capabilities and intentions of the petitioners in this regard. They are as likely as any people to succeed in equipping this child with the strong character of which he will stand in need in the future.
This is a case, then, where the claims of native custom and the Adoption Act of the Province come into conflict, or where heredity and environment clash as concep