Some First 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 An Act Respecting First Nations, Métis and Inuit Children Youth and Families, became law in June 2019. It affirms that Indigenous communities have sole authority of their children and establishes minimum standards in caring for them.
Quebec put the act to the constitutional test at its Court of Appeal, which ruled in 2022 that parts of the act are out of the federal government’s scope to legislate. Ottawa appealed that decision and the matter is now before the Supreme Court of Canada.
Peguis First Nation in Manitoba, with 11,000 members, is one of six nations to have formed its own child and family law, and it did it through ceremony — not “under” the law, C-92, said the in-house counsel for the community’s Child and Family Services.
“The federal government didn’t give us anything, they didn’t allow us anything,” said Earl Stevenson. “What we’ve done through our own self-determination and our inherent rights, we’ve created this law.”
Stevenson said, in one instance, two infants were being transferred from a provincial CFS office in Winnipeg to Peguis. The CFS office in Winnipeg was initially seeking a permanent order keeping them from their parents.
He said that Peguis declined, as it avoids permanent orders.
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The matter went to a King’s Bench judge who granted a three-month temporary order under Peguis’s new law, Stevenson said. He said this marked the first time that court approved such an order aligning with Indigenous law.
Stevenson said apprehension should be the last resort for the First Nation, and the agency wants to avoid children going through that traumatic experience.
He also said there have been no child protection matters in the last five months for Peguis, the first time that’s ever happened.
Peguis also plans to develop its own court system but isn’t quite there yet, he said.
“For now, we’ve 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 nations in north-central British Columbia, had its own family law model when C-92 emerged, said executive director Mary Teegee.
But she stressed that C-92 is not solely about drafting laws.
“You actually have to start building the capacity in your own agency to provide the services to the community, and in the community,” she said.
Teegee, who also represents B.C. on the board of the First Nations Child and Family Caring Society, said she always knew communities had inherent jurisdiction but lacked the resources to “breathe life” into their own laws.
She said she also represents B.C. on the board of the First Nations Child and Family Caring Society, noted the absence of funding provisions in C-92.
Both Teegee and Stevenson said funding mechanisms will rely on co-ordination agreements involving federal and provincial governments and Indigenous government entities.
Andrea Sandmaier, the president-elect of Otipemisiwak Metis Government in Alberta, said it was exciting when C-92 became law.
“To reclaim our children is something very important to our citizens.”
Sandmaier said her office 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.
“We actually just sent a letter to give notice to the minister of Indigenous Services Canada and the minister of child and family services in Alberta of our intent to exercise our jurisdiction under C-92 law, and we are looking forward.”
The United States Supreme Court upheld legislation this summer affirming that Native American families have priority in the adoption of Native American children. Stevenson said the “positive treatment” in the U.S. bodes well north of the border for the C-92 reference case.
If the act is not upheld by Canada’s Supreme Court, Stevenson said “we’re not going to disappear,” referencing Aboriginal rights protected under Section 35 of the Constitution.
Theresa Stenlund, Region 1 councillor at Métis Nation of Ontario, said her organization would also continue to push forward.
“We’ve been given direction by the citizens and by our communities to move forward and continue to push to look after our children.”
