Indigenous leaders laud beautiful, happy Supreme Court ruling on child welfare jurisdiction

The Supreme Court of Canada has ruled that the federal government was within its constitutional right to pass jurisdiction to Indigenous communities for the care of their children and families through a federal statute.

“I'd be lying if I said that I wasn't worried about (the Feb. 9 judgement) all week. I made sure we did ceremony this week to make sure that it went in our favour,” said Assembly of First Nations National Chief Cindy Woodhouse Nepinak.

In a 92-page unanimous decision penned by the entire panel of eight Supreme Court justices, which included Odanak First Nation member Justice Michelle O’Bonsawin, Canada’s highest court said C-92, An Act respecting First Nations, Inuit and Métis children, youth and families, “as a whole is constitutionally valid.”

Québec had challenged the act, which was introduced in 2019 by the federal Liberal government, claiming that it encroached on provincial jurisdiction. The Québec Court of Appeal sided with the province that certain sections of the legislation were unconstitutional and that the federal government had overstepped.

The Supreme Court reversed the Québec Court of Appeal’s decision and upheld the legislation in full.

The Supreme Court ruled that the federal government was not creating a third level of government, but instead the Act affirmed the inherent right of self‑government of Indigenous peoples recognized by section 35 of the Constitution Act, 1982.

Indigenous leaders have stood firm in saying they never gave up their jurisdiction over their children or families and have always acknowledged that responsibility.

“It's a very beautiful, a happy decision by the Supreme Court. But it is also, in a way, a sad day that the wellbeing and the future of the children has been an issue debated before the courts for the past four years and beyond,” said Regional Chief Ghislain Picard of the Assembly of First Nations Québec and Labrador at a joint press conference with the First Nations of Québec and Labrador Health and Social Services Commission.

Both organizations joined with Canada as respondents to the court action.

The Ottawa press conference included Atikamekw d’ Opitciwan Chief Jean-Claude Mequish and children from his community. In January 2022, Opitciwan became the first Québec First Nation to pass its own child welfare law when the Loi de la protection sociale atikamekw d'Opitciwan (Atikamekw of Opitciwan Social Protection Act) came into force.

While lauding the court’s decision, Indigenous leaders said they would like to see that narrow decision, which focused only on jurisdiction to make laws in relation to child and family services, expanded to other areas of jurisdiction.

“We say that this decision, and that context in which it was debated before the courts, doesn’t really answer the issue of the capacity to implement Indigenous laws. And that’s very key,” said Picard.

“And that’s the pursuit that we’ve had all along, that we are really able to change the ideology and the mindset in this country, that we have the capacity as Indigenous governments to have a full authority over everything that pertains to our reality,” he said.

“I hope that this Supreme Court ruling does pave the way for future pieces of legislation that are co-developed, that we can continue down this pathway of legislative reconciliation instead of having to go to the courts to fight for what our inherent rights are and how we will be implementing these rights,” said Cassidy Caron, president of the Métis National Council.

Caron was joined by Inuit Tapiriit Kanatami President Natan Obed and federal ministers Patty Hajdu (Indigenous Services) and Gary Anandasangaree (Crown-Indigenous Relations) in a joint press conference in Ottawa Feb. 9.

“What you’re looking at now is the Supreme Court recognizing what we all have been trying to say for now 15 to 20 years that these are rights and obligations,” said Obed. “And it is piecemeal…but incremental change is better than no change at all or regression.”

Areas in which Indigenous Nations could exercise their own jurisdiction, he said, are laid out in the distinctions-based action plans put forward by Inuit, Métis and First Nations last June for implementing Canada’s United Nations Declaration on the Rights of Indigenous Peoples Act.

Hajdu said the Supreme Court’s decision does inform other legislation going forward. She singled out health legislation and Bill C-61, First Nations Clean Water Act. However, she did not offer specifics as to how and when that could happen.

Progress has been slow in Indigenous communities implementing their own child and family welfare laws through coordination agreements.

Obed blamed that on Québec’s court action. He said the “entirety of (the federal) government” along with Inuit self-governing and rights institutions were waiting to determine where they should spend their resources and time.

In a news release issued in French, the Québec government said its disagreement had been with the federal government and not with Indigenous peoples.

Obed also drew attention to the provinces and territories who joined on the side of Québec as interveners.

“In listening to the interventions by provinces and territories within the Supreme Court proceedings, we often see, in very black and white, what jurisdictions actually think about our rights. And that also then creates a concern about how to then engage with that very jurisdiction about coordination agreements and about faithfully implementing our existing rights,” he said.

Woodhouse Nepinak, who was in British Columbia on Friday, invited provinces and territories to come to the table “and work together to find a different way forward because the child welfare system in this country has caused deep harm on our First Nations people with other governments in charge of our kids.”

She said about 90 First Nations were at some stage of working through creating and implementing their own laws for child and family services, although less than 10 coordination agreements had been signed. She added that sufficient funding had to be provided to deliver services.

Hajdu said “appropriate level of funds and the stability of the funds” are negotiated as part of coordination agreements, which may or may not include the province or territory in which the Indigenous community is located.

A statement from the Métis Nation–Saskatchewan noted it was already working on an MN–S childcare model “with a distinct Métis approach from prevention to apprehension.”

The Manitoba Métis Federation said in a statement that the Government of the Red River Métis has completed discussions on its own laws and welfare system and with the Supreme Court ruling “the road is paved for the transfer of authority, forming a direct relationship with Canada that ensures our children are within our own laws and our own welfare system.”

Anandasangaree said he’s heard from Indigenous communities for the need to move faster in implementing C-92.

“I believe that this decision really does open the way for Canada and those who want to draw down this jurisdiction to move forward in order to ensure that children are kept in their homes and in their communities, and ultimately Indigenous people have their right of self-determination over their children,” he said.