MB First Nations leaders applaud Supreme Court affirming Indigenous jurisdiction over child welfare

By Dave Baxter
Local Journalism Initiative
Winnipeg Sun

First Nations leaders are applauding last week’s Supreme Court decision that affirms Indigenous nations should have jurisdiction over child and family services (CFS) laws and policies in their communities.

“The Assembly of Manitoba Chiefs (AMC) recognizes that this decision is positive for First Nations who are developing laws under this framework, with the goal of protecting their children,” AMC Grand Chief Cathy Merrick said in a media release reacting to a decision handed down by the Supreme Court of Canada last Friday to dismiss an appeal launched by the government of Quebec.

Quebec’s appeal was centered around Bill C-92: An Act Respecting First Nations, Métis, and Inuit children, youth and families, which the Trudeau government enacted into law in 2020.

The law affirmed that Indigenous communities should have jurisdiction over child welfare systems, and it opened the door for communities across the country to have CFS systems transferred back to their power when they were ready to take back control.

In July of 2021, the Cowessess First Nation, a community in southern Saskatchewan, became the first Indigenous community in Canada to take back control of their CFS through the legislation. Last January, the Peguis First Nation became the first Indigenous community in Manitoba to get control of their child welfare system since the law was enacted.

But Quebec’s provincial government launched an appeal of the bill claiming it infringed on provincial jurisdiction, and essentially created a third tier of government in Canada, by allowing First Nations communities to create their own child welfare laws.

In its decision, the Supreme Court ruled “the act as a whole is constitutionally valid,” and stating that Bill C-92 “does not alter Canada’s constitutional architecture.”

Merrick said she was pleased with the ruling, because she believed had the appeal gone forward, it would have stopped or delayed many community’s plans to control their own CFS, and she said when CFS systems are not Indigenous-led it leads to a high number of Indigenous children in care.

“It is encouraging that the Court recognizes that when a child remains with their family and Nation, the sharing of culture is strengthened, and the best interest of the child is promoted,” Merrick said.

“We are hopeful that it will be a positive move towards ending unnecessary apprehensions of First Nations children on the basis of poverty, racial and cultural bias, and systemic racism.”

According to the federal government, Indigenous children under the age of 14 account for 52% of children in foster care across the country, despite making up just 7% of all children in that age group in Canada.

But that overrepresentation is much higher for Indigenous children in Manitoba, as according to information released by the AMC, as many as 90% of the approximately 12,000 youth in care in Manitoba are Indigenous.

AMC says despite last week’s ruling, they would like to see legislation go even further to allow Indigenous communities to create their own child welfare laws without restraints or oversight from the federal government, or from other levels of government.

“It represents a half-step towards reconciliation because the laws created by First Nations are constrained by the limits of Canadian laws and subject to Canada’s veto,” Merrick said. “The Supreme Court of Canada failed to clearly recognize that First Nations have their own laws and legal systems that are distinct from Canadian laws.

“The AMC will continue to advocate wholeheartedly for this recognition. In the meantime, we will assert our sovereignty using our own mechanisms, as well as those available to us within the colonial legal framework.”