Chief Heidi Cook v Manitoba

Chief Justice of Manitoba Court of King’s Bench Summarily Declares Infringement of Aboriginal Right to Self-Government within Child and Family Services (Chief Heidi Cook et al. v The Government of Manitoba et al., 2026 MBKB 65)

By Yeji Kim

Photo by Cohen Berg via Unsplash

On May 11, 2026, the Manitoba Court of King’s Bench issued a decision in what the representative plaintiffs (the “Plaintiffs”) described as an effort to recognize and end systemic harms against Manitoba First Nations, in search of compensation to facilitate healing. This decision is significant for its recognition of a s. 35 right to self-government over child and family services (“CFS”) and for demonstrating how the Court of King’s Bench of Manitoba (the “Court”) treated “an undeniably unique and complex case relating to the child welfare system in Manitoba” [para 816]. Specifically, it highlights how the Court determined which of the collective claims against Canada and Manitoba would meet the statutory criteria of s. 4 of The Class Proceedings Act (the “CPA”).

Ultimately, the  claim of infringement of a s. 35 right to self-government over CFS was certified. The Court found that none of the Plaintiffs’ other claims presented a reasonable cause of action eligible for class certification.

The Plaintiffs brought forward two motions to the Court: a) class certification under the CPA; and b) a request for summary judgment on the resulting common legal issues, arguing that a trial was not required because the evidentiary record was sufficient to warrant a summary disposition. The defendants were the Governments of Canada and Manitoba.

The Plaintiffs alleged that, from January 1, 1992 to the present, the defendants’ various policies and funding decisions regarding the provincial child welfare system: a) breached their fiduciary duties, duties of care, and the honour of the Crown; b) violated class members’ rights to freedom of religion and equality under ss. 2(a) and 15 of the Charter; and c) infringed upon class members’ rights under ss. 35 and 36 of the Constitution Act, 1982 – respectively, the Plaintiffs’ right to self-governance and the defendants’ commitment to promote equal opportunities for all Canadians. Chief Justice Joyal certified the action exclusively under the s. 35 claim, while rejecting all others for failing to establish a cause of action under s. 4(a) of the CPA.

All elements of the class certification test were met for the surviving s. 35 claim: there was a cause of action; an identifiable class;  common issues; a determination that a class proceeding was the preferable mechanism to resolve this claim; and suitable representatives of the class.  Importantly, Chief Justice Joyal recognized that, although the Plaintiffs failed to meet a strict application of the R v Van der Peet (“Van der Peet”) test, “rigid insistence on applying what is an ill-fitting Van der Peet test to the unique questions of the present case, fails to recognize an important evolution in the jurisprudence and the legislation” [para 471]. The cause of action included a right capable of being recognized as a s. 35 Aboriginal right, as well as a prima facie infringement of that right.

On summary judgment, Chief Justice Joyal described this right as an Aboriginal right to self-government in the area of CFS, which includes the Plaintiffs’ ability to raise their children within their cultures and communities, connected to their lands, and immersed in their languages and spiritual traditions. Asking four critical questions for guidance, Chief Justice Joyal held that this right not only existed, but was also infringed by the defendants.

First, by applying the jurisprudential evolution of the Van der Peet test, Chief Justice Joyal defined the legal scope of the alleged s. 35 right. The s. 35 right at issue was characterized as “the right to self-government in the area of CFS, which includes the right to raise their children in their culture and community, with a connection to their land, and immersed in their languages and spiritual traditions” [para 697].

Second, while the Court found it superfluous to even address this question, Chief Justice Joyal recognized the existence of the reformulated right through the Plaintiffs’ demonstration of a deeply rooted, pre-contact practice of community-led childcare and governance. Overall evidence showed that First Nations never surrendered their right to care for their own children; hence, there is a right of all Manitoba First Nations to self-government in the area of CFS. Deeming that the Plaintiffs’ evidence did not fit the traditional Van der Peet standard, the Court relied on more holistic evidence, including evidence that First Nations teach the seven stages of life from birth to elder life, attained through teachings and ceremonies designed to reinforce miinigowiziwin (the sacred gifts from the Creator) and mino-bimaadiziwin (living a good life). These are organizing principles in the lives of all First Nations and their peoples. Denying First Nations children the ability to participate in this transmission of knowledge has a negative impact on First Nations’ cultural survival [para 700]. By demonstrating this threat to cultural continuity, the Plaintiffs established the existence of the reformulated right, a finding further reinforced by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Chief Justice Joyal further relied on the QCCA C-92 Reference Decision acknowledging that such Aboriginal rights remain unextinguished and compatible with Crown sovereignty. 

Third, the defendants’ statutory framework and funding models directly interfered with this right by causing an overrepresentation of Indigenous children in state care by implementing operational structures that prioritized and incentivized the apprehension and removal of Indigenous children from their communities, rather than providing adequate funding for preventative care, family support, or cultural preservation.

Lastly, the infringement was unjustified. Chief Justice Joyal was satisfied that even “on a charitable reading of the evidence,” the defendants met the first part of the justification test in R v Sparrow by establishing that the infringement was related to a compelling objective [para 784]. However, the Court found that they failed to meet the second part by acting inconsistent with the honour of the Crown and their fiduciary duty to Aboriginal peoples, a significant indicator of which was the insufficient evidence that they had properly discharged their duty to consult and accommodate. The Court held that the defendants failed to engage in meaningful consultation with First Nations regarding the design and delivery of services, while also ignoring decades of warnings and public reports pointing to a systemic crisis.

Although the Court acknowledged that Canada and Manitoba, jointly and severally, have funded, regulated and provided CFS, it was the manner in which the defendants structured and funded the system that unjustifiably infringed upon the Plaintiffs’ s. 35 right [para 748].

In conclusion, Chief Justice Joyal declared that the Plaintiffs’ legal right to self-government in the area of CFS exists and that the right had been breached by the defendants, noting that this declaration would have “much practical utility considering the plaintiffs and the defendants remain in an ongoing relationship in the area of child and family services” [para 841].

This decision raises several questions related to the treatment of Indigenous law for child wellbeing in Canadian courts. While the evidentiary record may have revealed vital elements of Indigenous law, these ultimately served a broader goal: whether to satisfy procedural requirements for class certification or to prove an infringement of a state-recognized right. Further, declaratory relief, though symbolically powerful, offered limited guidance on how exactly Canada and Manitoba should modify their regulatory measures to remedy the systemic harms at issue. The Court declared that practices “fell well short of what was required,” but what positive standard was expected remains unanswered [para 842]. If the parties are unable to reach an agreement on the terms of a collaborative order reflecting the present judgment, counsel must return to court for a final determination [paras 813-815].

The defendants’ negligence was also profound; their course of conduct persisted despite explicit, repeated warnings – including from their own experts – regarding the catastrophic consequences of incentivizing the apprehension of children from their families. Such institutional persistence is arguably attributable to the lack of practical guidance in past decisions. In the absence of meaningful accountability, there is little for courts to enforce. Consequently, courts may have limited material to rely on without having to adopt positions they may perceive as groundbreaking or as unjustified departures from established jurisprudence.