Feds, provinces must now recognize inherent rights of self-government say leaders after historic win at Supreme Court

APTN News: A news conference in Ottawa was a scene of celebration Friday on the heels of a historic Supreme Court ruling on Indigenous self-government rights and jurisdiction over child welfare laws, where First Nations leaders and communities also celebrated the decision they say was a long time coming.

First Nations leaders, children and women in ribbon skirts danced ahead of the news conference where leaders gave their thoughts on the win.

“Our peoples have compromised enough,” said Assembly of First Nations Quebec-Labrador Regional Chief Ghislain Picard at the news conference in Ottawa where a group of children sat in front of the podium. “It’s time now for other governments to do the same.”

Friday’s ruling affirms First Nation, Inuit and Métis self-government and jurisdiction over their child welfare services. In a unanimous decision, the court said the “The act as a whole is constitutionally valid. “The essential matter addressed by the Act involves protecting the well-being of Indigenous children, youth and families by promoting the delivery of culturally appropriate child and family services and, in so doing, advancing the process of reconciliation with Indigenous peoples.”

The law, co-developed between Indigenous partners and the federal government and called an An Act Respecting First Nations, Inuit and Métis children, youth and families, or C-92, came into effect on Jan. 1, 2020 and affirmed the right of Indigenous Peoples to run their own child protection services and included sections that said Indigenous legislation had the force of federal law and could supersede provincial law.

The law was developed after the Canadian Human Rights Tribunal ruling found that Canada discriminated against First Nations children on reserve by underfunding the services that were supposed to help them. In October 2023, the federal government agreed to a $43 billion settlement with two class actions against it for that discrimination with $23 billion being paid out as compensation and another $20 billion to fix the system.

The complaint against Canada was brought by the First Nations Child and Family Caring Society and the Assembly of First Nations. In a statement, the caring society said the ruling “echoes a truth that has persisted for far too long in Canada, that there is a crisis of overrepresentation of First Nations, Inuit and Métis children in the child and family services system, and that crisis must end.

“The Court unanimously holds that the protection of the wellbeing of First Nations, Inuit and Métis children, youth and families is a valid federal purpose, and that legislative reconciliation, including recognizing the authority of First Nations, Inuit and Métis communities over their own children, youth and families, is a tool to achieve this goal.”

Its executive director, Cindy Blackstock, added that she was “surprised in a good way” the ruling went as far as it did. “Going into it I was concerned about the amount of time it was taking to render a decision, if that represented a struggle among the different justices on the bench maybe leading to a split decision and I wasn’t entirely convinced the court would have the courage to issue a decision like this,” she said. “It was a nice exhale today and now we get to see if it will actually get implemented.”

According to Indigenous Services Canada, “more than 110 Indigenous groups, communities and Peoples have demonstrated an intention to move forward using the framework of the Act,” and there are “seven signed agreements across the country that support the exercise of jurisdiction through the framework of the Act.”

Reaction was swift across the country

child welfare — Ghislain Picard, regional chief of the Assembly of First Nations speaking at a news conference in Ottawa on Feb. 9. Photo: Fraser Needham/APTN.

Alvin Fiddler, grand chief of Nishnawbe Aski Nation, an organization that represents 49 First Nations in northern Ontario, said that “the decision confirms what NAN First Nations have always known – our children are our jurisdiction, wherever they may reside.”

“This decision means the federal and provincial governments will have to accept and respect our laws when it comes to our children, youth and families. Today is a good day for Indigenous sovereignty and all First Nations who are developing and asserting their own child welfare laws.”

The law was challenged by Quebec in the province’s Court of Appeal saying that Canada overstepped its authority under the Constitution by forcing national standards on provinces – and giving Indigenous communities the power to override provincial laws when it comes to child welfare.

In February 2022, the appeals court said that the law was constitutional but did rule that two sections giving Indigenous communities the power to supersedes provincial laws was not.

It went before the Supreme Court in 2022.

The Inuit Tapiriit Kanatami, an organization that represents Inuit in Canada, said the judgement “affects child welfare laws but also every aspect of Inuit jurisdiction and the right to self-determination.

“Today, Canada’s highest court has unanimously reaffirmed our inherent right to self-govern, including the power to care for our children and youth. As a result of colonial systems, many of our families have been torn apart and have suffered devastating intergenerational trauma,” said Natan Obed, president of the ITK. “This landmark decision, grounded in the UN Declaration on the Rights of Indigenous Peoples, signals an incredible opportunity to transform socio-economic outcomes for Inuit and upholds our right to self-determination, a right that was never surrendered.”

Assembly of First Nations National Chief Cindy Woodhouse Nepinak called the decision a significant step forward.

“First Nations have never surrendered their jurisdiction over their children and families, which has existed since time immemorial,” Woodhouse Nepinak said. “First Nations continue to have the inherent and constitutional right to care for our children and families, along with our sacred rights from Creator to raise our children surrounded by our cultures, languages, and traditions.”

Prime Minister Justin Trudeau said Indigenous children have “for far too long” been put in foster homes, sometimes far away from their communities, that were not grounded in Indigenous language and traditions. “That has perhaps gotten them out of harm’s way in the immediate, but has left them with scarring — loss of identity, loss of language and a disconnection from their cultures that has had devastating impacts.”

Asked whether, if elected, he would stand by the law, Conservative Leader Pierre Poilievre said his party believes in “more autonomy for First Nations communities and less paternalistic control by government.” He said the Conservatives would “respect the rights of First Nations families to raise their own children.”

NDP MP Lori Idlout, who also serves as her party’s critic of Indigenous services, said First Nations, Métis and Inuit had their own laws prior to Confederation, and that she hopes Ottawa will respect their jurisdiction. “I hope to see First Nations, Métis and Inuit making their own laws and those laws being respected,” she said. “They already had them before Canada’s genocidal policies to eliminate First Nations, Métis and Inuit, and I look forward to the work of indigenous peoples making laws that will help protect children, youth and families.

In a statement posted to its website, the Manitoba Métis Federation said, It gives us great relief to know that our children will be safe in our care and in our arms,” said David Chartrand, President of the MMF. “Our families will be rejoicing that we will never lose our children to outside forces again. Never will we have to face the external creation of laws and policies that are racial and discriminatory and have created so much devastation.”

The Quebec government, whose challenge was dismissed, said in a statement, “Given the significant repercussions of the judgment, particularly on the question of the protection of vulnerable children and Indigenous governance, Quebec will continue to carefully analyze the decision rendered by the Court.”

Quebec isn’t the only jurisdiction to push back against affirming Indigenous self-government rights with child welfare laws. The Northwest Territories, Alberta and Manitoba all shared their concerns with handing power to First Nations, Inuit and Métis communities.