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Supreme court affirms child welfare law

Families from Indigenous communities across Turtle Island celebrate a Supreme Court decision upholding a federal child welfare law in Ottawa on Friday, February 9. Courtesy Ghislain Picard

Indigenous families, community members, and advocacy groups convened at a downtown Ottawa hotel last Friday, singing, dancing, drumming, and cheering. 

The celebration was a reaction to news that the Supreme Court of Canada had rejected an appeal from Quebec against a landmark law which gives Indigenous communities jurisdiction over child and family services.

“It was a happy moment, but it was an emotional moment,” said Ghislain Picard, chief of the Assembly of First Nations Quebec-Labrador (AFNQL), who was in Ottawa for the historic decision. “It’s a very, very positive outcome.”

The celebrations came after years of waiting. Back in 2019, the federal Bill C-92, An Act Respecting First Nations, Métis, and Inuit Children Youth and Families, became law, affirming the right of Indigenous communities to have jurisdiction over child welfare services. That law was appealed by the Quebec government, which argued that Bill C-92 essentially recognizes Indigenous people as a third order of government, infringing on Quebec’s provincial jurisdiction. 

That appeal was partially successful, with a Quebec Court of Appeal declaring in December 2022 that the law is partially unconstitutional, holding that Indigenous child welfare laws can’t prevail over provincial ones. 

But that appeal was reversed with last Friday’s Supreme Court decision, which stated that the act as a whole is constitutionally valid and advances the process of reconciliation.

David Taylor, a lawyer for The First Nations Child and Family Caring Society of Canada (The Caring Society), which was an intervenor in the Supreme Court appeal, said the decision will have an immediate and long-term impact on vulnerable children.

“What it means now is that the people who are closest to kids, such as their own community, can make the laws and rules about how to address concerns about whether kids and families are safe in their communities,” he said. 

Here in Kahnawake, the decision will also be impactful, said Derek Montour, executive director of Kahnawake Shakotiia’takehnhas Community Services (KSCS). Montour is also president of the board of directors for the First Nations of Quebec and Labrador Health and Social Services Commission (FNQLHSSC), which was also an intervenor in the appeal.

“The next step for all of us is to create our own law in the community, and it’s critical that community members get involved and give their voice to how child welfare and youth protection should look in Kahnawake, and how we see it delivered,” he said. 

Montour said that Kahnawake has been making many of its own decisions about child welfare for the last 40 years, but emphasized that those decisions could have been shut down by Quebec’s director of youth protection at any point. He said that under Bill C-92, a law can be established to protect the integrity of those services and to create new programs that increase the scope of services in the community. 

“We’d like to add more into family preservation types of approaches, where rather than looking at placements and removing children, we try to prevent these types of situations from evening happening,” he said. 

“That involves the community being involved in parenting classes, and language, and culture, and ceremony. It means getting involved in healthy activities, and reducing addictions, dealing with trauma, dealing with grief.… It needs to be a comprehensive approach.”

Minimum standards of care are outlined within Bill C-92, which were created via consultation with over 2,000 groups. These include that child and family services must be culturally-appropriate for Indigenous children, that a child and family service provider must demonstrate that they made reasonable efforts to have a child continue to reside with their parent or other adult family member before removing them from their care; and that prevention services must be prioritized over protection services.

Under the law, Indigenous children cannot be apprehended solely on the basis of their socioeconomic conditions.

Taylor said that with these guidelines, communities can have alternative models to determine the safety of children and families, for instance in cases where decisions about a child’s welfare were heard before a provincial court.

“Rather than having a judge in a provincial court, who’s most likely not going to be Indigenous, making these decisions, they’re having a different decision-maker doing that. It’s not necessarily court, it can be something else,” he said. “It’s an opportunity to have innovation and more flexibility than really what’s a one-size-fits-all case with the provincial government system.”

For Picard, the decision should encourage an ideology change within the provincial government system. He said that Quebec’s resistance to consider First Nations a third form of “government” at the table alongside federal governments is fundamentally challenged by this decision.

“It requires a very serious reflection on their part,” he said. “To me, the decision confirms that our laws can prevail over federal and provincial laws if they’re not compatible. I think we have a very strong stance here.”

Quebec has not reacted publicly to the decision, though the Supreme Court is the highest court in Canada, and the province will not be able to appeal any further. Montour said that though it’ll be interesting to see the province’s response, the main victory is the safety of future generations of Indigenous children. 

“Our primary concern is the safety and wellbeing of our families and our communities,” he said. “That’s what we’re focusing on, not what Quebec’s going to do.”

evedcable@gmail.com

This article was originally published in print on February 16 in issue 33.07 of The Eastern Door.

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Eve is a reporter with the Eastern Door. She has also covered harm reduction and social justice issues for the Montreal Gazette, The Breach, Filter Magazine, and more.

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Eve is a reporter with the Eastern Door. She has also covered harm reduction and social justice issues for the Montreal Gazette, The Breach, Filter Magazine, and more.