Federal officials say a claim by NWT Attorney General R.J. Simpson that a federal child welfare law undermines the NWT Act is incorrect.
Ottawa is appealing a Quebec Court of Appeal decision that declared sections 21 and 22 of the law invalid. Arguments for and against reinstating the two sections were heard by the court on Dec. 7 and Dec. 8, with Inuvialuit Regional Corporation (IRC) and numerous other Indigenous governments intervening on the federal side and Alberta, British Columbia, Manitoba and the GNWT joining as interveners on the Quebec provincial government’s side.
Simpson told reporters earlier this month the federal child care law, “An Act Respecting First Nations, Inuit and Métis Children, Youth and Families,” created legal uncertainty over how the NWT Act would be applied in the wake of the IRC’s year-old-law, known as “Inuvialuit Qitunrariit Inuuniarnikkun Maligaksat,” or the “Inuvialuit Family Way of Living Law.”
The NWT Act effectively creates and governs the GNWT’s legal powers and jurisdiction.
A federal spokesperson said Simpson’s interpretation of the law was inaccurate and noted the GNWT’s issues were not addressed at the Quebec Court of Appeal and should have been brought up separately.
“In addition to the NWT raising issues that were not argued before the Court of Appeal, its arguments are unfounded in law,” said Government of Canada media relations officer Jennifer Cooper. “Canada submitted that the principle of paramountcy of federal legislation – enjoyed by Indigenous child and family services laws that have acquired the force of federal law pursuant to section 21 of the act – does not apply differently to the NWT.
“The Government of Canada believes that the act is an important step in the process of reconciliation with Indigenous peoples, and aims to address the critical issue of over-representation of Indigenous children in the child and family services system. Further, the Government of Canada recognizes that Indigenous communities are best positioned to identify and implement solutions to this problem.”
In a full-page ad published in the Dec. 7 Yellowknifer, the Dec. 8 Inuvik Drum and the Globe and Mail, IRC President Duane Ningaqsiq Smith slammed the GNWT for its involvement in the Supreme Court case.
Simpson, who is also the territorial Justice minister, noted the decision to intervene in the case was up to the attorney general, not the premier.
“Given the history of our territory, it is understandable that the decision to intervene is being seen as colonial and hurtful,” said Simpson. “However, as attorney general, I have an obligation to ensure that the legislative regime in the NWT is stable and predictable and allows the GNWT to adhere to its legal requirements for the benefit of all residents.”
Unfounded position
However, concerns the GNWT raised about the potential for Indigenous governments to effectively overrule the NWT legislature are unfounded, said Cooper, as all the act does is affirm the rights that Indigenous governments have held under the federal constitution all along.
Section 35 of the Constitution Act, 1867 includes rights acquired through land claim agreements as inclusive of overall treaty rights.
“The Government of Canada does not believe there are any legal contradictions between the NWT Act and An Act respecting First Nations, Inuit and Métis children, youth and families,” said Cooper. “This act is historic in that it affirms the section 35 rights of First Nations, Inuit and Métis peoples in respect of self-government to exercise jurisdiction in relation to Indigenous child and family services.”
Cooper added the legislation and sections 21 and 22 of the act respecting First Nations, Inuit and Métis children, youth and families were instrumental in the government’s approach to implementing the recommendations of the Truth and Reconciliation Commission and the United Nations Declaration on the Rights of Indigenous Peoples.
She noted that since the act was passed in 2019, the federal government has received 58 requests from Indigenous governments to take over child welfare services, representing more than 90 distinct communities.
“The Government of Canada co-developed this legislation with Indigenous peoples to invest in a path led by First Nations, Inuit and Métis peoples so that Indigenous children have the opportunity to grow up connected to their communities, surrounded by loved ones and immersed in their culture, to ultimately reduce the number of Indigenous children in care and improve child and family services,” she said. “The act has put in place what Indigenous peoples across the country have been asking of governments for decades: that their rights and jurisdiction over child and family services be recognized and affirmed so that they can decide what is best for their children, families, and communities.
“The continued implementation of the act is crucial in addressing the over-representation of Indigenous children in care and is a fundamental step forward in advancing reconciliation efforts with Indigenous peoples.”
A Supreme Court decision is expected in 2023. In the meantime, the IRC’s law has come into effect and the IRC is asking beneficiaries to register their children so the federal government knows what is needed to begin funding the framework already providing family services.