Tansi Nîtôtemtik,
Yesterday we talked about five year-old Jordan River Anderson's story and the principle that children come first when child welfare jurisdiction is not clear. Today we delve into the legal framework that creates this conundrum in the first place. It is a story of Treaty, federalism, and statutory policy-making. As you read through this article, I ask you, dear reader, to keep Jordan and his story in mind. Remember that these dry political and legal frameworks affect real people.
Artwork: "“Protection” by Isaac Bignell
When Indigenous peoples made formal agreements with colonial settlers, they entered into a relationship with the Crown. Professor John Borrows tells us that the Royal Proclamation of 1762 was a solemn promise to enter into a relationship of peace, friendship and respect between sovereign Indigenous peoples and the Crown. It was not an agreement with the Crown’s representative in Ottawa, and certainly not the Crown in the right of the Provinces. It was an agreement with the Crown who resides in the United Kingdom: the monarch; the sovereign.[1] For many Indigenous peoples, the Peace and Friendship Agreements in the Maritimes and the Numbered Treaties across the Plains were sacred promises with the King or the Queen, not the government.
In this context, the Constitution Act, 1867 could be perceived as a delegation of sovereign authority from the Queen to the colonial state of Canada. The British North America Act, later renamed the Constitution Act, 1867, delegates all aspects of governance from the United Kingdom to either the federal or provincial governments. Section 91(24) gives the federal government exclusive jurisdiction over “Indians, and Lands reserved for the Indians.”[2] This implies that the Crown in right of Canada was delegated the responsibility to uphold the Queen’s sacred promises to Indigenous peoples.
So why do the provinces have jurisdiction over matters that engage Indigenous peoples and their interests? The answer lies in two pieces of legislation. First, the Natural Resources Transfer Agreements[3] of the 1930’s transferred lands and jurisdiction to regulate land use to the provinces. Secondly, in the 1950’s, the federal government enacted section 88 of the Indian Act,[4] which provides that provincial laws of “general application” will apply to Indigenous people, on or off-reserve. Both of these enactments show that the Crown in right of Canada effectively recused itself from many of its section 91(24) responsibilities towards Indigenous peoples.
Today, both the federal and provincial governments have aspects of jurisdiction over issues that affect Indigenous peoples. So who is responsible for what? More specifically, who is responsible for the delivery of child welfare services to Indigenous children? Although the Indian Act regulates many aspects of Indigenous people’s lives, it is silent on the matter of child welfare.[5] Is it federal jurisdiction under section 91(24) of the Constitution Act, 1867? Or is it provincial jurisdiction under section 88 of the Indian Act? Naomi Metallic argues that this battle over jurisdiction, whether for or against, leaves out the option of Indigenous jurisdiction over child welfare services for Indigenous children.[6]
Recently, the federal government passed the Act respecting First Nations, Inuit and Métis children, youth and families.[7] This Act recognizes that Indigenous peoples have the right to exercise jurisdiction over child welfare and family services. Although this is a good start, the Yellowhead Institute worries that it further complicates the jurisdictional quagmire over child welfare services, especially on financial matters.[8] Further, it fails to guarantee funding to support those services. This is a serious concern because the Federal Court recently upheld the Canadian Human Rights Commission’s findings that the federal government was discriminating against Indigenous children by underfunding child welfare and family services.[9]
So you see, dear reader, Indigenous child and welfare issues are far from resolved, despite recent positive efforts to recognize Indigenous jurisdiction over the matter. The federal and provincial governments still have a lot of work to do to uphold the Crown's sacred promise to Indigenous peoples to live together in peace, friendship and respect.
If you are passionate about Indigenous child welfare, I encourage you, dear reader, to familiarize yourself with the recent Human Rights decision and the Federal Court's decision, and write to your Member of Parliament demanding that the federal government: (1) does not appeal the Federal Court’s recent decision; (2) abides by the Canadian Human Rights Commission’s decision; and (3) implements Jordan’s principle in good faith.
Until next time,
ReconciliAction YEG
[1] John Borrows, "Canada's Colonial Constitution" in John Borrows & Michael Coyle, eds, The Right Relationship: Reimagining the Implementation of Historical Treaties (Toronto: University of Toronto Press, 2017), 1. [2] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91, reprinted in RSC 1985, Appendix II, No 5. [3] The Alberta Natural Resources Act, SA 1930, c 21; Manitoba Natural Resources Agreement, SM 1930, c 30; and The Saskatchewan Natural Resources Act, SS 1930, c 87. [4] Indian Act, RSC 1985, c I-5. [5] Ibid. [6] Naomi Metallic, “NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union’ and Communications, Energy and Paperworkers Union of Canada v. Native Child and Family Services of Toronto” in Kent McNeil & Naiomi Metallic, eds, Judicial Tales Retold: Reimagining Indigenous Rights Jurisprudence, (Saskatchewan: Canadian Native Law Reporter, Indigenous Law Center, 2020). [7] Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24. [8] Naiomi Walqwan Metallic, Hadley Friedland & Sarah Morales, “The Promise and Pitfalls of C-92: An Act respecting First Nations, Inuit, and Métis Children, Youth and Families” (4 July 2019) online: Yellowhead Institute <https://yellowheadinstitute.org/wp-content/uploads/2019/07/the-promise-and-pitfalls-of-c-92-report.pdf>. [9] Canada (Attorney General) v First Nations Child and Family Caring Society of Canada, 2021 FC 969 (CanLII).