Federal minister says NWT stance on Bill C-92 is ‘wildly disappointing’

Crown-Indigenous relations minister Marc Miller has strongly criticized the Northwest Territories’ position in a court case that has consequences for Inuvialuit child welfare law.

Late last year, the NWT intervened in a Supreme Court case over the constitutionality of federal legislation – Bill C-92 – allowing Indigenous governments to assume control of child and family services.

Bill C-92 became law in 2019.

In a court submission, the territory 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.”

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

Quebec originally challenged the bill in the Supreme Court. Alberta, BC and Manitoba also support Quebec’s position. Almost 50 Indigenous governing bodies support the federal government’s stance.

The case remains ongoing, with a decision expected in the near future.

The Inuvialuit Regional Corporation, which used Bill C-92 to take on greater responsibility for child and family services with its own landmark law in 2021, has been fiercely critical of the GNWT for taking the position it has.

The IRC, which took out full-page newspaper ads last year opposing the GNWT’s move, says the territorial government’s position suggests that “the inherent rights of Indigenous peoples can only be implemented on terms acceptable to the Government of the Northwest Territories.”

Speaking with Cabin Radio during a brief visit to Yellowknife last week, Miller said the NWT’s position was “wildly disappointing” and he had expressed his frustration to the territorial government.

“It is self-evident that a basic trapping of nationhood and identity is the ability to have control and custody over your own children,” the minister said.

“If we focus and are able to work together as Canada and the Northwest Territories in making sure that children are able to be brought up closer to their language, culture and laws, they are better off. There are proven data points across Canada that support that fact.

“It would be very hard to disagree that it is not an inherent right to have control and custody over your own children, those that are the most vulnerable in this society.”

By Friday morning, the territorial government had not issued a response to a request for comment sent by email a week earlier.

In December last year, Premier Caroline Cochrane held a news conference in an attempt to explain the territory’s position. At that conference, she said the NWT’s intervention was “not about challenging the validity of the Inuvialuit Regional Corporation’s Family Way of Living Law” but instead about “how we can ensure that the act is successful and that roles and responsibilities are clearly defined.”

RJ Simpson, the NWT’s justice minister and attorney general, added at the same news conference: “It is very unfortunate that the federal legislation that raised the issue is related to child and family services. 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.”

Status of the IRC’s law

Todd Orvitz, the IRC’s chief administrative officer, said this week that the Inuvialuit had received no recent communication from the GNWT on the subject of its position.

“We requested and called on them to stand down their intervention and remove their position from the Supreme Court of Canada, and they have not done that,” Orvitz told Cabin Radio.

“We continue to request that they no longer intervene at the Supreme Court and no longer stand in the way of Inuvialuit taking care of Inuvialuit children.

“Supreme Court decisions do take their own time and it is a bit of a black box for us, in terms of the timing. We have not heard anything further from the Supreme Court but as soon as we do, we will certainly organize to action the next steps coming out of that decision.”

Orvitz said the IRC’s law, known as Inuvialuit Qitunrariit Inuuniarnikkun Maligaksat, contemplates an “incremental transition of jurisdiction” over child and family services from the GNWT.

Steps taken so far include seeking access to relevant information the GNWT holds and working on a coordination agreement to make the transition smooth. Orvitz said he hoped full implementation of the IRC’s law would begin as soon as a Supreme Court decision is reached.

“The position taken by the GNWT is not in the spirit of reconciliation and makes it harder for us to access information and provide the services we’re capable of providing to our families and children,” he said.

“We are optimistic that the decision of the Supreme Court will allow us to continue to grow our jurisdiction and allow us to take over responsibility for child well-being, because the GNWT has demonstrated that it does not have the ability to properly and effectively manage that system in respect of Inuvialuit children and families.”