In this decision, the Manitoba Court of King’s Bench (a trial court) held that Manitoba First Nations have an Aboriginal right of self-government in relation to child and family services (CFS) and that Canada and Manitoba’s administration of the child welfare system infringed that right by significantly limiting First Nations’ ability to protect and raise their children according to their own laws, traditions, cultures, and governance systems.
Background
The proceeding was brought by the Chiefs of Misipawistik Cree Nation, Black River First Nation, and Pimicikamak Cree Nation on behalf of their respective First Nations, together with the Assembly of Manitoba Chiefs, against Manitoba and Canada. The plaintiffs sought certification of a class proceeding and summary judgment concerning the effects of the child and family services system on the section 35 rights of Manitoba First Nations.
The case arose against the backdrop of the severe overrepresentation of Indigenous children in Manitoba’s child welfare system. The plaintiffs argued that the removal of First Nations children from their communities and cultures was not merely a policy failure but also an infringement of Manitoba First Nations’ inherent right to govern family and child welfare matters.
The Court considered extensive historical evidence concerning residential schools, the Sixties Scoop, and ongoing child welfare practices, as well as evidence regarding the impact of these systems on First Nations families, cultures, languages, and communities.
Decision
The Court held that Manitoba First Nations have an Aboriginal right of self-government in relation to child and family services, a right that includes the right to raise their children in their culture and community, connected to their lands and immersed in their languages and spiritual traditions. The Court found that the manner in which Canada and Manitoba funded, regulated, and administered child and family services substantially interfered with the exercise of that right and impaired the ability of First Nations to protect their children and safeguard their cultural continuity. The Court held that the infringement was not justified and granted declaratory relief.
Key Takeaway
The decision builds on the Supreme Court of Canada’s 2024 decision in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families. In that decision, the Supreme Court did not finally determine the existence and content of a section 35 right of self-government over child and family services. In this decision, the Court of King’s Bench did recognize such a right.
This case summary provides our general comments on the case discussed and should not be relied on as legal advice.
See CanLII for the Reasons for Judgment.
