N.W.T. backs opposition to child welfare law in Supreme Court | Spare News

Legal representatives from the Northwest Territories government appeared in Canada’s Supreme Court on Thursday to challenge aspects of federal child welfare legislation.

The GNWT believes that sections of Bill C-92, which recognize the inherent right of Indigenous governments to establish their own child and family welfare systems, violate the legal authority of the territorial government.

The territory had publicly supported the law after it was introduced in 2019.

More than 90 percent of the children in the territorial government’s child welfare system are Indigenous, a situation that at least one Indigenous territorial politician has described as a crisis.

In February, Quebec decided to appeal the law. Since then, the Attorneys General of the Northwest Territories, Manitoba, British Columbia and Alberta have decided to step in in support of the province.

On the other hand, nearly 50 indigenous governing bodies have supported the federal government, including the Inuvialuit Regional Corporation (IRC).

The IRC, which used Bill C-92 to take greater responsibility for child and family services in 2021 with its own landmark Child Care Act, has been in talks with the GNWT for nearly a year about implementing that legislation.

In September, the IRC said this week that it had learned that the GNWT had moved to formally challenge legislation underpinning the IRC’s power to do so.

IRC officials addressed the Supreme Court on Thursday to defend their authority over Inuvialuit children.

The contested federal law was announced on National Day of Indigenous Peoples 2019 and went into effect on January 1, 2020.

It was in direct response to the Truth and Reconciliation Commission’s fourth call for federal legislation reaffirming the right of indigenous governments to establish and maintain their own child welfare agencies.

The law, Bill C-92, was something that indigenous governments like the IRC had fought for for decades.

The problem for Quebec, the GNWT and others is that the law gives Indigenous governments the final say on what happens to Indigenous children. While the provinces and territories have declared in court that they support indigenous self-government, they argue that provincial and territorial governments should, as a matter of principle, have the final say over children.

In a response submitted to the court, the NWT contended that it was unconstitutional to accord indigenous governments any type of power beyond that of territory.

In Wednesday’s court hearing, the Quebec government attorney said that “this federal law raises fundamental constitutional issues related to the separation of powers and Canada’s constitutional architecture.”

Nobody contradicts that. The Supreme Court decision will have far-reaching ramifications for years to come, and everyone studying Indigenous law in Canada is watching closely.

“It’s like the World Attorneys’ Championship,” said Larry Innes, a partner at Olthuis, Kleer, Townshend LLP, who has represented a number of Indigenous governments in the Northwest Territories.

“There are 100 lawyers sitting in the courtroom and another 1,000 across the country watching it at their desks.”

Just months before passage of Bill C-92, a damning report from the Canadian National Accounting Office found that on average the NWT government lost contact with nine out of ten children placed in its care. This 2018 report called the government’s practices “deeply concerning”.

“Managing the child welfare system is just not something the GNWT is capable of,” said Todd Orvitz, the IRC’s chief administrative officer, of the report.

“That was one of the reasons the IRC stepped forward so quickly to draft our own law.”

The Inuvialuit Qitunrariit Inuuniarnikkun Maligaksat – or the Inuvialuit Family Way of Living Law – was announced in November 2021 and set out a gradual transition to full responsibility for Inuvialuit children and young people under the IRC government.

This law created a plan for future facilities and staff and created a dedicated advocacy organization called Maligaksat, which would advocate for Inuvialuit children and youth across the country and serve to fill gaps in existing services.

At the time, Prime Minister Caroline Cochrane publicly congratulated the IRC.

Orvitz said IRC and GNWT then worked together for months to delegate authority over children’s welfare. Learning about the intervention of the GNWT Supreme Court came as a shock, he said.

“There were some points of contention, but we were able to overcome many of those challenges,” Orvitz said. “But recently, at the end of September, they decided that … they are not obliged to follow the decisions of the law and therefore they do not respect or recognize the Inuvialuit law. That was quite a surprise for us.”

Orvitz believes the territorial government is using children to strengthen its place in Canadian politics.

“They had an opportunity to be on the right side of history and they chose not to,” Orvitz said.

“I’ve heard some of their arguments in the Supreme Court and it really seems like they’re trying to push additional authority and jurisdiction over the GNWT and they’re trying to do it on the backs of Inuvialuit and Indigenous children. That is unforgivable for me.”

On Wednesday, IRC published in the Globe and Mail a full-page open letter from Chairman and Chief Executive Duane Ningaqsiq Smith to Prime Minister Caroline Cochrane.

“Under your oversight, the government of the Northwest Territories has continued a centuries-old policy of removing Indigenous children from their families, homes and communities and denying them their culture and basic human rights,” the open letter reads in part.

“We urge you… to drop your intervention in the Supreme Court.”

While neither Premier Cochrane nor RJ Simpson – who serves as the NWT’s Attorney General – directly responded to requests for comment, a Cochrane cabinet spokesman said the GNWT was not challenging the Inuvialuit Regional Corporation law, but “clarity” in one looking for a broader legal matter.

The NWT “affirms the inherent right of Indigenous peoples to self-government,” the spokesman said via email, but is concerned about the portion of Bill C-92 that gives Indigenous statutes equal force with federal law.

In particular, the GNWT interrogates a section that states: “Indigenous laws shall prevail over any conflicting or conflicting provisions of provincial legislation.”

The territory spokesman also highlighted perceived conflicts with the Northwest Territories Act, which they described as the territory’s constitution, saying it offers “powers similar in nature and scope to the powers of provincial legislatures.”

The Northwest Territories Act is not a provincial constitution but a federal statute, and Orvitz contends that even the NWT’s claim to have an attorney general is a legal gray area, since the authority of an attorney general is usually established by a provincial constitution that encompassed the territory Not.

“The argument they make, the claim of having an attorney general, and some of the other hallmarks of a constitutionally recognized entity like the federal government or the provincial governments? I mean, I think these are all strategic moves taken in bad faith,” he said.

“We all know that the government of the Northwest Territories is encouraged and funded by the federal government,” Innes agreed. “It has no constitutional statute of its own. It’s a creature of federal law. It has some constitutional dimensions – it has a legislature, it makes laws – and to the extent that it stays in that area and serves those purposes for Northerners, I don’t think anyone has any problems.”

But when the territory “steps forward and in front of indigenous governments,” Innes said, it undermines crucial moves towards recognition of indigenous sovereignty.

“It just makes me shake my head at the tone deafness to the underlying issue,” he continued, “that is not the correct constitutional order between provinces and territories in Canada, but how do we help children?”

Smith wrote in his open letter: “Your government’s decision to use the guise of case law arguments to deny Inuvialuit children their basic rights and continue the colonial legacy of removing Inuit children from Inuit communities is extremely disturbing and disappointing.

“Meaningful reconciliation requires more than words.”