With constitutional challenge pending, First Nations sign child welfare agreements under Bill C-92

Bill C-92 recognizes Indigenous peoples' inherent right to self-government over child and family services

With constitutional challenge pending, First Nations sign child welfare agreements under Bill C-92
Anna Beatch, MLT Aikins

As Quebec’s challenge of Bill C-92 awaits determination at Canada’s top court, four First Nations have signed coordination agreements with Canada to assume control of their community’s child and family services.

Bill C-92: An Act respecting First Nations, Inuit and Métis children, youth and families, received Royal Assent in June 2019 and came into force in January 2020. The law recognizes the inherent right to self-government over child and family services (CFS) held by First Nations, Inuit, and Metis peoples and establishes a process by which they can develop their own policies and laws in coordination with provinces, territories, and federal government. The law’s intention is to address the over-representation of Indigenous children in provincial care and to keep children connected with their families, community, and culture.

In December, the Supreme Court of Canada heard arguments in Attorney General of Québec, et al. v. Attorney General of Canada, et al., a Quebec reference examining the constitutionality of Bill C-92.

Quebec asked the province’s Court of Appeal whether the legislation was beyond the authority of the Parliament of Canada. The court found two sections unconstitutional – ss. 21 and 22(3) – which gave Indigenous laws paramountcy over conflicting or inconsistent provincial laws. The court said this exceeded Parliament’s authority under s. 91(24) of the Constitution Act, 1867. The SCC has yet to release its decision.

Since C-92 came into force, six Indigenous communities have passed their own CFS laws under its framework. Four of those First Nations have signed coordination agreements with the federal and provincial governments.

“This legislation affirms that Indigenous peoples’ inherent right of self-government includes jurisdiction over child and family services,” says Anna Beatch. “This legislation is just another tool Indigenous peoples can use to take back control of their kids. They know best how to solve the challenges their families and communities are facing. They know best how to protect their kids. They know what is best for their kids.”

Beatch is an associate at MLT Aikins in Saskatoon and a member of their Indigenous practice group. She assists Indigenous clients in all aspects of exercising their inherent jurisdiction over child and family services, including revitalizing or developing their own laws. Her practice also focuses on advising on governance matters, economic development and reserve creation. She used to work in the Saskatchewan Ministry of Justice’s child protection department and returned to MLT Aikins to take what she learned to assist First Nations, Inuit, and Metis peoples exercise their right to self-government in the area of CFS, she says.

“This is just one step in that big puzzle to help keep kids connected to their community, connected to their culture.”

On Jan. 31, the Peguis First Nation inked a coordination agreement with Manitoba and Canada to support the implementation of Peguis’ child and family services legislation, the Honouring our Children, Families and Nation Act. Peguis First Nation is located 180 km north of Winnipeg.

On Feb. 1, the Louis Bull Tribe and the Government of Canada sealed a coordination agreement to undergird Louis Bull Tribe's Asikiw Mostos O'Pikinawasiwin law, which enables the community to administer jurisdiction over child and family services. The Alberta First Nation is between Edmonton and Red Deer.

The Cowessess First Nation in Saskatchewan was the first Indigenous group to enter a coordination agreement under Bill C-92, doing so in July 2021. Cowessess was followed by the Wabaseemoong Independent Nations, from Ontario, who signed a coordination agreement in March 2022.

The coordination agreements set out the intergovernmental relationships and mechanisms of support, and Bill C-92 provided that, if the Indigenous party has entered into an agreement or made reasonable efforts to enter one, their child and family services law has the same force of law as federal law, says Beatch. Bill C-92 provided that where a provincial or federal law conflicts with the Indigenous community’s law, the latter will prevail, but the Charter and the Canadian Human Rights Act will still apply, and there will still be a best-interests-of-the-child override clause, she says.

While the Quebec Court of Appeal found the sections giving Indigenous CFS laws the same force of law as federal law unconstitutional, Beatch says that the SCC should address the interaction between Indigenous CFS laws and other CFS laws in its decision.

If an Indigenous governing body does not want to enter into a coordination agreement, they can still exercise their jurisdiction over child and family services, but if there’s a conflict between their law and provincial or federal law, then theirs is not necessarily going to prevail, says Beatch.

There is also nothing in C-92 that says Canada, the provinces, or the territories must come to the table and negotiate a coordination agreement. For example, the Alberta government did not sign Louis Bull Tribe’s coordination agreement. The agreement is only with the federal government.

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