GNWT backs opposition to child welfare law in Supreme Court

Legal representatives of the NWT government appeared in Canada’s Supreme Court on Thursday to challenge aspects of federal child welfare legislation.

The GNWT believes sections of Bill C-92, which recognizes Indigenous governments’ inherent right to establish their own child and family welfare systems, violate the territorial government’s legal authority.

The territory had publicly supported the bill following its inception in 2019.

More than 90 percent of children in the territorial government’s child welfare system are Indigenous, a situation at least one Indigenous territorial politician has described as a crisis.

In February, Quebec decided to appeal the bill. Since then, the attorneys general of the Northwest Territories, Manitoba, British Columbia and Alberta have chosen to intervene in support of the province.

On the other side, almost 50 Indigenous governing bodies have stood in support of the federal government, including the Inuvialuit Regional Corporation (IRC).

The IRC, which used Bill C-92 to take on greater responsibility for child and family services with its own landmark childcare law in 2021, has been in talks with the GNWT about implementing that law for almost a year.

In September, the IRC said this week, it learned the GNWT had moved to formally question the legislation underpinning IRC’s authority to do so.

IRC representatives spoke in Supreme Court on Thursday to defend their authority over Inuvialuit children.

What is the bill?

The contested piece of federal legislation was announced on National Indigenous Peoples Day in 2019 and came into force on January 1, 2020.

It was a direct response to the Truth and Reconciliation Commission’s fourth call to action, which requested federal legislation that affirmed the right of Indigenous governments to establish and maintain their own child-welfare agencies.

The act, Bill C-92, was something Indigenous governments like the IRC had fought to establish for decades.

The issue for Quebec, the GNWT and others is that the law gives Indigenous governments final say over what happens to Indigenous children. While the provinces and territory have said in court they support Indigenous self-government, they argue provincial and territorial governments should have that final say over the children as a matter of principle.

In a response submitted to the court, the NWT asserted that to assign Indigenous governments any kind of power higher than that possessed by the territory is unconstitutional.

In Wednesday’s court proceedings, counsel for the Quebec government opened by saying that “this federal bill raises fundamental constitutional issues around the division of powers and Canada’s constitutional architecture.”

IRC calls move ‘unforgivable’

No one disagrees there. The Supreme Court’s decision will have far-reaching consequences for years to come, and anyone involved in Indigenous law in Canada is paying close attention.

“This is like the World Cup for lawyers,” said Larry Innes, a partner at Olthuis, Kleer, Townshend LLP who has represented a number of Indigenous governments in the Northwest Territories.

“There’s 100 lawyers sitting there in the courtroom, and there’s another 1,000 across the country that are watching it at their desks.”

Just months before Bill C-92 was enacted, a damning report by Canada’s auditor general found that the NWT government lost contact, on average, with nine out of 10 children placed in its care. That 2018 report called the government’s practices “deeply concerning.”

“The administration of the child welfare system is just not something the GNWT is capable of,” said Todd Orvitz, chief administrative officer for the IRC, reflecting on that report.

“Which was one of the reasons IRC stepped forward so quickly to draft our own law.”

The Inuvialuit Qitunrariit Inuuniarnikkun Maligaksat – or the Inuvialuit Family Way of Living Law – was announced in November 2021, setting out a gradual transition toward full responsibility for Inuvialuit children and youth under the IRC’s government. 

That law established a plan for future facilities and staffing, and created a dedicated advocacy organization called the Maligaksat, which would advocate for Inuvialuit children and youth across the country and serve to fill gaps in existing services.   

At the time, Premier Caroline Cochrane publicly congratulated the IRC.

Orvitz said the IRC and GNWT then worked collaboratively for months to transition authority over child welfare. Learning of the GNWT’s Supreme Court intervention was, he said, a shock.

“There were some areas of dispute but we were able to work through many of these challenges,” said Orvitz. “But quite recently, in late September, they decided that … they were not bound to follow the decisions of the act and therefore they did not respect or recognize Inuvialuit law. This was quite a surprise to us.”

Orvitz believes the territorial government is using children to reinforce its place in Canadian politics.

“They had an opportunity to be on the right side of history, and they’ve chosen against that,” said Orvitz.

“I’ve heard some of their arguments at the Supreme Court and it really does seem to be that they are looking to advance additional authority and jurisdiction for the GNWT, and they’re looking to do that on the backs of Inuvialuit and Indigenous children. That, to me, is unforgivable.”

On Wednesday, the IRC ran a full-page open letter from chair and chief executive Duane Ningaqsiq Smith to Premier Caroline Cochrane in the Globe and Mail.

“Under your watch, the Government of the Northwest Territories has continued a centuries-long policy of removing Indigenous children from their families, homes and communities – denying them their culture, and basic human rights,” that open letter stated in part.

“We are calling on you… to drop your intervention at the Supreme Court.”

The GNWT’s response

While neither Premier Cochrane nor RJ Simpson – who acts as the NWT’s attorney general – directly responded to requests for comment, a spokesperson for Cochrane’s cabinet said that the GNWT was not challenging the Inuvialuit Regional Corporation’s law but “seeking clarity” on a broader legal matter.

The NWT “affirms the inherent right of self-government of Indigenous peoples,” the spokesperson said by email, but is concerned about the part of Bill C-92 that grants Indigenous laws the same force as federal law.

Specifically, the GNWT queries a section that states “Indigenous laws prevail over any conflicting or inconsistent provisions of provincial legislation.”

The territory’s spokesperson also highlighted perceived conflicts with the Northwest Territories Act, which they referred to as the territory’s constitution, saying it provides “powers similar in nature and scope to the powers of provincial legislatures.”

The Northwest Territories Act is not a provincial constitution but a federal statute, and Orvitz contends that even the NWT’s claim to possess an attorney general is a legal grey area as the authority of an attorney general is usually established by a provincial constitution, which the territory doesn’t have.

“The argument that they’re making, the claims to having an attorney general and some of the other hallmarks of a constitutionally recognized entity like the federal government or the provinces? I mean, I think these are all strategic moves being made in bad faith,” he said.

“We all know that the Government of the Northwest Territories is animated and funded by the federal government,” agreed Innes. “It does not have its own constitutional statute. It’s a creature of federal law. There are some constitutional dimensions to that – it has a legislature, it passes laws – and to the extent that it stays within that scope and serves those purposes for northerners, I don’t think anyone has any issues.”

But when the territory “steps forward and in front of Indigenous governments,” Innes said, it undermines crucial steps toward recognition of Indigenous sovereignty.

“It just leaves me shaking my head at the tone-deafness to the underlying problem,” he continued, “which is not the proper constitutional order between provinces and territories in Canada, but how do we help kids?”

Smith wrote in his open letter: “The choice of your government to use the cover of jurisdictional arguments to deny Inuvialuit children their basic rights, continuing the colonial legacy of removing Inuit children from Inuit communities, is extremely disturbing and disappointing.

“Meaningful reconciliation requires more than words.”