Constitutionality of Act Respecting First Nations, Inuit and
Métis Children, Youth and Families

Favourable Supreme Court of Canada Ruling

Assembly of First Nations, Quebec and Labrador press conference announcing the decision of the Supreme Court, February 9, 2024.

On February 9 the Supreme Court of Canada issued its unanimous decision upholding the constitutionality of the Act respecting First Nations, Inuit and Métis children, youth and families. The Act came into effect on January 1, 2020 and its constitutionality was challenged by the Quebec government.

APTN reports that "the law 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. It was developed after the Canadian Human Rights Tribunal ruling 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."

Pointing out that the Act "is intended to address the harmful impacts of the child welfare system on Indigenous families," the Union of BC Indian Chiefs in a February 9 press release said: "This decision upholds the constitutionality of the entirety of the Act, including: the national minimum standards, Parliament's affirmation that the inherent right to self-government includes jurisdiction over Indigenous children and families, and the scheme Parliament designed to facilitate the ability of Indigenous communities to exercise that right."

The First Nations Leadership Council and the Our Children Our Way Society welcomed and applauded the decision saying that it "represents a giant leap forward in the implementation of Indigenous jurisdiction over children and families."

"This decision ends the colonial era of Canada and the provinces controlling Indigenous child welfare. Our inherent right to protect our children and to hold them within their families and communities is reaffirmed," says Grand Chief Stewart Phillip of the Union of BC Indian Chiefs.

Cheryl Casimer, First Nations Summit Political Executive, said: "This is one of the most important pieces of legislation for Indigenous peoples: it calls for strengthening and keeping families together rather than ripping our children away from their families and their cultures."

The Carrier Sekani Family Services Society, along with four Carrier Sekani nations, argued that the case-by-case approach has created unreasonable barriers to self-government. In its decision, the Supreme Court relied on this argument, noting that: "Avoiding a whole cycle of litigation allows Indigenous groups and the Crown to use their time and resources to focus on the actual substance of the issue: caring for children."

Mary Teegee-Gray, Chair of the Our Children Our Way Society, said: "We have always had our own laws and we have always had the right to care for our own families in our own ways. We never gave that up and Canadian laws can never change that. What the Act did was to provide space to focus on how we breathe life into those laws. Today's decision from the Supreme Court holds that space open and we will carry on with our work."

In its intervention in the case, BC's First Nations Leadership Council argued that the UN Declaration on the Rights of Indigenous Peoples affirms the Indigenous right to self-determination, and that the Declaration represents binding international law. As a result, section 35 of the Constitution should be interpreted broadly as including the right to self-determination.

Terry Teegee, Regional Chief of the BC Assembly of First Nations, said: "This decision reaffirms that Canada has an obligation to uphold international law and to act in ways that maintain the honour of the Crown. Under those obligations, Canada must fully recognize our inherent Indigenous right to self-determination."

Federation of Sovereign Indigenous Nations (FSIN) in Saskatchewan first vice chief David Pratt urged Canada to "properly and adequately fund First Nations child welfare reform."

"We're bringing our children home. We can't bring them home if there's no housing if there's no infrastructure for them to be able to be supported -- when we have communities in crisis right now with policing, addictions, and gangs," Pratt said. "We can't bring them into that type of environment. There's a lot of work we have to do," he said.

The FSIN said 58 out of 74 First Nations in Saskatchewan are already in the process of implementing their own child welfare systems.

David Chartrand, President of the Manitoba Métis Federation (MMF), in a statement posted to their website, said: "It gives us great relief to know that our children will be safe in our care and in our arms. 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."

Alvin Fiddler, grand chief of Nishnawbe Aski Nation, which represents 49 First Nations in northern Ontario, said: "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."

Aluki Kotierk, President of Nunavut Tunngavik Inc. (NTI) in a February 9 statement applauded the decision. "The Court's decision is encouraging in light of our desire for self-determination for Nunavut Inuit," Aluki Kotierk said. "Governments have continually failed vulnerable Inuit children, youth and families. Child welfare in Canada is heavily centred on responding to emergencies, with little to no support for efforts to prevent such emergencies from happening in the first place. NTI is committed to working to better the lives of Inuit children to address the effects of residential schools, colonial policies and intergenerational trauma, and the Court's decision confirms our right to help lead these endeavors in Nunavut," she said.

The Inuit Tapiriit Kanatami (ITK) 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."

Obed spoke about the ongoing tragic reality of the over-representation of Inuit children in care across the country. "Bill C-92 pushes back against those realities, pushes back against colonial attitudes towards taking children away from their families, and pushes the Canadian state to recognize representatives of Indigenous Peoples, Inuit rights-holding institutions and organizations along with First Nations and Metis to take care of our children and to implement self-determination in this field," Obed said, speaking to reporters outside the House of Commons on February 9.

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

Respected child advocate Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, said in a statement: "Today, the ancestors, the children and youth who went to residential schools and those who did not make it home, the 60s Scoop survivors, the children and youth in and from care today, and the Indigenous adults who love them, inspired the Supreme Court to ask more of itself and it delivered," she said.

"Now it is up to the provincial, territorial and federal governments to make sure they provide the resources and supports needed for First Nations, Métis and Inuit children and youth to grow up safely at home, get a good education, be healthy and proud of who they are."

Kirsten Barnes, a lawyer with the BC First Nations Justice Council, said that while the Act itself is imperfect, it does offer a pathway for Indigenous communities to assert their right to self-determination regarding the well-being of their children and families.

"What we are dealing with is a brand new landscape whereby multiple laws are being revitalized and no two Nations' laws, needs, and solutions look exactly the same," she said.

"The Supreme Court of Canada's unanimous decision to uphold the Act ensures that the work already started by many First Nations toward jurisdiction can continue," Barnes added.

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This article was published in

Volume 54 Numbers 1-2 - January - February 2024

Article Link:
https://cpcml.ca/Tmlm2024/Articles/M5400117.HTM

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