Some Indigenous nations say they are prepared to continue enforcing their jurisdiction over child welfare if Canada’s top court sides with Quebec in a landmark constitutional case.
Bill C-92, or the First Nations, Métis and Inuit Children, Youth and Families Act, became law in June 2019. It affirms that Indigenous nations have exclusive authority over their children and sets minimum standards for their care.
Quebec put the law to constitutional testing at its Court of Appeal, which ruled in 2022 that parts of the law are outside the federal government’s reach to legislate. Ottawa appealed that decision and the matter is now before the Supreme Court of Canada.
The Peguis First Nation in Manitoba, with 11,000 members, is one of six nations to have formed its own children and family law, and it did so through a ceremony, not “under” Bill C-92, he said the in-house counsel for the community’s Children and Family Services.
“The federal government gave us nothing, allowed us nothing,” Earl Stevenson said.
“What we have done through our own self-determination and our inherent rights, we have created this law.”
Stevenson said in one case, two babies were being transferred from a CFS provincial office in Winnipeg to Peguis. Initially, the CFS office in Winnipeg was seeking a permanent order removing them from their parents.
He said Peguis declined as it avoids standing orders.
The matter reached a King’s Bench judge who granted a three-month temporary order under the new Peguis law, Stevenson said. He said this was the first time a court had passed such an order that aligned with Indigenous law.
Stevenson said apprehension should be a last resort for the First Nation, and the agency wants to prevent children from going through that traumatic experience.
He also said there have been no child protection issues in the past five months for Peguis, the first time this has happened.
Peguis also plans to develop its own court system, but it is not there yet, he said.
“For now, we have granted the King’s Bench in Manitoba and the provincial court in Peguis concurrent jurisdiction to hear our matters.”
Carrier Sekani Family Services, which serves 11 countries in north-central British Columbia, had its own family law model when C-92 emerged, said CEO Mary Teegee.
But he stressed that C-92 is not just about writing laws.
“You actually have to start building capacity in your own agency to provide services to the community, and in the community,” he said.
Teegee, who also represents BC on the board of directors of the First Nations Child and Family Care Society, said he always knew communities had inherent jurisdiction but lacked the resources to “bring life” to their own laws.
He said he also represents BC on the board of the First Nations Child and Family Care Society, and noted the absence of funding provisions in C-92.
Both Teegee and Stevenson said funding mechanisms will depend on coordination agreements involving the federal and provincial governments and Indigenous government entities.
Andrea Sandmaier, president-elect of the Otipemisiwak Metis government in Alberta, said it was exciting when C-92 became law.
“Getting our children back is something very important for our citizens.”
Sandmaier said his office has developed a family reunification program in Edmonton with plans for another in Bonnyville, Alta.
She says there have been no challenges in this process yet.
“In fact, we just sent a letter notifying Canada’s minister of Indigenous Services and Alberta’s minister of children and family services of our intention to exercise our jurisdiction under Bill C-92, and we are looking forward to it.”
The U.S. Supreme Court this summer upheld legislation affirming that Native American families have priority in adopting Native American children. Stevenson said the “positive treatment” in the United States bodes well north of the border for the C-92 reference case.
If the law is not upheld by the Supreme Court of Canada, Stevenson said “we’re not going to go away,” referring to Aboriginal rights protected by Section 35 of the Constitution.
Theresa Stenlund, Region 1 councilor for the Metis Nation of Ontario, said her organization would also continue to move forward.
“Citizens and our communities have instructed us to move forward and continue to push to take care of our children.”