Despite ‘hurtful’ perception, NWT says court intervention is necessary

The NWT’s premier and justice minister on Monday defended the territory’s intervention in a Supreme Court case over the constitutionality of a federal child welfare law.

The territory has intervened in the case – which relates to a federal law allowing Indigenous governments to assume control of child welfare – on the grounds that the law introduces uncertainty over which government’s laws take precedence.

In a court submission, the NWT – through RJ Simpson, its justice minister and attorney general – has argued that the federal law’s wording “undermines the legislative autonomy of the Northwest Territories” and “compromises the jurisdictional balance between Indigenous governments and the Government of the Northwest Territories.”

At a press conference on Monday, both Simpson and Premier Caroline Cochrane said the decision to intervene, taken by Simpson as attorney general, was to “seek clarity.”

“The decision to intervene in this constitutional challenge is not about challenging the validity of the Inuvialuit Regional Corporation’s Family Way of Living Law,” said Cochrane, referring to the IRC’s objection to the NWT’s position in an open letter published last week. The IRC is one of the first Indigenous governments to use the federal legislation to launch its own child welfare program.

“Instead,” Cochrane continued, “this intervention is about how we can ensure that the act is successful and that roles and responsibilities are clearly defined.”

Simpson added: “This intervention is not a comment on whether it’s inherently good or bad for the laws of Indigenous governments to supersede those of the Legislative Assembly.”

But he acknowledged the uncomfortable reality of raising the issue of constitutionality, and whose laws take precedence, in a case involving Indigenous jurisdiction over child and family services.

“It is very unfortunate that the federal legislation that raised the issue is related to child and family services,” he said. “Given the history of our territory, it is understandable that the decision to intervene is being seen as colonial and hurtful.

“However, as attorney general, I have an obligation to ensure that the legislative regime in the Northwest Territories is stable and predictable, and allows the GNWT to adhere to its legal requirements for the benefit of all residents.”

In Supreme Court last week, NWT lawyer Trisha Paradis recommended the removal of sections of the federal law that have the effect of giving Indigenous governments authority over the territorial government.

The three sections in question “are not required for the successful transition of child and family services to Indigenous groups,” Paradis said. “The act will function well without it … and it is that area that leads to our concern.”

Simpson said on Monday he believes the language used in those sections by the federal government was a mistake on their part.

“I’m not sure if the federal government was aware of this issue, and I believe this was probably an oversight,” he said.

“I don’t think they would [intentionally] roll out a program that would significantly and drastically change the legislative authority in the Northwest Territories.

“We need clarity on this issue. This isn’t something that will just go away. This is something that may cause significant issues in the future. So we want to get legislation right the first time. Otherwise, we will end up back in court.”

The crux of the matter is a section of the federal law worded to suggest that Indigenous child welfare law, once passed, would supersede territorial law.

“We see a language used in the Inuvialuit Family Way of Living law that appears to direct the GNWT, and imposes an obligation on how the GNWT will run child and family services,” said Paradis in court. “This is why section 21 is a concern. Because it places us in a position where Indigenous laws … prevail over Northwest Territories law.”

Paradis called that position “untenable.”

“It relinquishes the control the GNWT has over its public service … and over spending of the public purse,” Paradis said.

But in Monday’s press conference, Cochrane insisted the move to intervene was not to secure any kind of hierarchy.

“We have been very clear – I’ve been saying this since this government began – that I don’t see the federal government, territorial government or Indigenous governments in a hierarchy,” she said. “If we really value partnerships, then we’re all equal at the table.”

The Supreme Court is expected to announce its decision on the matter in 2023.