The Supreme Court of Canada says a federal law on Indigenous child welfare is constitutional, ending a case that caused an argument between the Inuvialuit Regional Corporation and NWT government.
On Friday, the Supreme Court unanimously upheld the law, dismissing a Quebec appeal.
Quebec had argued that the law stepped outside federal jurisdiction and handed too much power to Indigenous governments.
In 2022, the GNWT intervened in the case to make arguments similar to those put forward by Quebec.
The issue for Quebec, the GNWT and others was the way in which the law gave Indigenous governments the final say over what happens to Indigenous children.
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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 was unconstitutional.
But the Trudeau government stood behind its law, with then-minister of Crown-Indigenous relations Marc Miller telling Cabin Radio in 2023 that the NWT’s position was “wildly disappointing.”
The IRC used Bill C-92 to take on greater responsibility for child and family services with its own landmark childcare law in 2021. As the Supreme Court case dragged on, the IRC launched a campaign calling on the GNWT to drop its opposition.
“Inuvialuit children continue to be taken away from their families, homes and communities, denied their culture and most basic rights,” Duane Ningaqsiq Smith, chair and chief executive of the corporation, said in an August 2023 statement.
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“To date, the GNWT has used every stall tactic at their disposal to delay the implementation of the Inuvialuit Qitunrariit Inuuniarnikkun Maligaksat, also known as the Inuvialuit Family Way of Living Law, and Inuvialuit children and families are paying the price.”
Caroline Cochrane’s NWT government said, however, that it was important to “seek clarity” about how the law balanced the jurisdictions of territorial and Indigenous governments.
RJ Simpson, now the premier but serving as justice minister at the time, said in late 2022 that he had “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.”
‘Step forward’ for reconciliation
On Friday, the Supreme Court delivered an emphatic and unanimous verdict in which it called the federal law a “significant step forward on the path to reconciliation.”
The court said the federal law “falls squarely within Parliament’s legislative jurisdiction” rather than stepping beyond recognized limits, and the law simply restated “Indigenous peoples’ inherent right of self‑government” as already set out in Canada’s Constitution.
Where provincial and territorial laws conflict with Indigenous law – and possibly, as a consequence, with federal law – the Supreme Court said “it is ultimately for the courts to adjudicate” which law should prevail.
In a statement, the Inuvialuit Regional Corporation told Cabin Radio it was “very pleased” with the decision.
“This is an affirmation that IRC can exercise its inherent jurisdiction and pass laws in relation to child and family services. Both the federal government and provincial and territorial governments are bound by the act’s legislative recognition of this,” the IRC stated.
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In the legislature on Friday, Premier Simpson said the Supreme Court had been considering a “very specific” legal question and insisted the territory had not been “fighting” any Indigenous government.
“We wanted the act to continue,” Simpson said, referring to the Indigenous child welfare law. “What we were seeking is clarity. It wasn’t an attempt to hold on to power. We need a predictable and workable legal system in the Northwest Territories.
“It doesn’t matter how many times I stand up to explain this, it doesn’t seem to sink in … we all have the same end goal and we’re going to work together to get there. I’m glad that this case came out and provided clarity.”
