N.W.T. says federal Indigenous child and families act infringes on territorial authority

N.W.T. government leaders are defending a decision by the territory's attorney general to join a Supreme Court of Canada challenge of the federal law that gives Indigenous governments power to control their own child and family services.

That law includes a provision that Indigenous law prevails in disputes with a province or territory. The Northwest Territories is among the intervenors that take issue with this part of the federal act.

In legal documents, the Northwest Territories says that part of the act could require the territorial government to administer Indigenous law, so it wants the Supreme Court of Canada to find section 21 of An Act respecting First Nations, Inuit and Métis children, youth and families unconstitutional.

That section gives an Indigenous government's child welfare law the force of federal law. It's also the section that Indigenous law experts and the Inuvialuit Regional Corporation say empowers Indigenous governments to provide a quality of child and family services that the N.W.T. does not.

N.W.T. Attorney General R.J. Simpson, who is also the N.W.T.'s minister of justice, says the territory is challenging this section of federal legislation because it conflicts with the Northwest Territories Act, and not because the territorial government is opposed to an Indigenous government's right to look after its own family and child services.

"What we're concerned about is that [the act] is going to have a different effect in the Northwest Territories than the rest of Canada" by virtue of the N.W.T.'s territorial status, said Simpson in an interview with the CBC.

In a news conference on Monday, Simpson said that he supports Indigenous governments administering and enforcing laws made in accordance with sec. 35 of Canada's Constitution, but that the federal act could, in the Northwest Territories, force the territorial government to "essentially act as an administrative arm of those Indigenous governments to administer and enforce those laws."

Simpson said he believed this potential outcome was "probably an oversight" of the federal government. 

"I don't think they would roll out a program that would significantly and drastically change the legislative authority in the Northwest Territories through this process," he said.

Last week, the Supreme Court heard arguments in Quebec's challenge of the act. 

The challenge relates to the question of which order of government has jurisdiction over Indigenous child and family services. Child and family services fall under provincial and territorial jurisdiction, while Indigenous rights are enshrined in Canada's constitution.

The Quebec Court of Appeal earlier held that sections 21 and 22 of the federal act are unconstitutional because they give Indigenous child and family services laws "paramountcy" over provincial laws. This means that where there is a conflict between the Indigenous and provincial laws, the Indigenous law prevails. 

Quebec's court of appeal held that Canada's Constitution Act does not allow Parliament to give "absolute priority" to an Indigenous right. The federal government appealed that decision to the Supreme Court.

N.W.T. Act under threat, says minister

Simpson wouldn't say whether he wants the act struck down entirely. What he did say is that section 21 is unconstitutional because it effectively amends the federal Northwest Territories Act, which lays out the powers of the N.W.T. government.

Simpson said if the federal government wanted to give Indigenous government laws primacy in the area of child and family services, Ottawa should have consulted the N.W.T. on amendments to the Northwest Territories Act, and discussed new funding arrangements with them, too. 

"If the federal government creates more acts like this in the future, it would be extremely difficult to govern," said Simpson. 

He said the territory's intervention is about seeking clarity.

"We want to get legislation right the first time, otherwise we wind back up in court," he said.

The act is backed by Indigenous groups including the Assembly of First Nations and the Inuvialuit Regional Corporation (IRC), which in November of 2021 passed its own child and family services law in keeping with the new federal law. 

The IRC also intervened in the Supreme Court challenge of the act. 

"The purpose of Inuvialuit law is to mitigate and prevent the continuing harms caused by the N.W.T.'s child welfare practices," reads the IRC's submission. "If the Inuvialuit law is subordinate to territorial legislation, and N.W.T. is not bound by it, neither the Inuvialuit law nor the federal act will achieve their purposes."

A 2018 report from the Auditor General of Canada found "serious deficiencies" in child and family services in the N.W.T. Among them: that the territorial government placed children in foster homes without properly screening those homes, and that it didn't maintain regular contact with nine out of 10 children in foster care. 

The auditor general found that the N.W.T. government is "incapable of delivering child and family services," said Todd Orvitz, chief administrative officer with the Inuvialuit Regional Corporation and a legal counsel on the IRC's supreme court intervention.

"So the idea that they would fight, at the highest levels of court, to supersede an Indigenous government who actually has the ability to take care of its own children makes no sense to me and frankly, is unforgivable."

Orvitz said the intervention goes further than seeking clarity.

The N.W.T.'s submission states that sections 21 and 22 of the act have the effect of "disrupting the balance of legislative authority between an Indigenous government and the government of the Northwest Territories" in the context of self-government agreements.

Orvitz said the N.W.T. takes "the position that while they support Indigenous self-government, they're only willing to support Indigenous self-government if it means they hold the trump card."

'We're supposed to be working towards reconciliation'

The N.W.T. initially supported the IRC's child and family services law, with Premier Caroline Cochrane calling it a "big step forward." 

The most recent annual report from the territory's director of Child and Family Services states that the division is "committed" to implementing the federal act.

But the government has since changed its tune. Orvitz said the IRC learned in September that the N.W.T. would be intervening at the Supreme Court.

At Monday's news conference, Premier Caroline Cochrane said the IRC taking over child and family services is "the right way to go."

"We are not saying that we don't want Indigenous governments to take ownership and services for their children," she said. "What we're saying is that we want to make sure that we are clear what the federal act, what the implementations [are] for our own N.W.T. Act, our own constitutional act."

Larry Innes, a Yellowknife-based partner at Olthuis Kleer Townshend LLP, a law firm that specializes in Indigenous law, said the N.W.T. is making the "wrong argument in the wrong case at the wrong time. 

"We're supposed to be working towards reconciliation. We're supposed to be advancing Indigenous jurisdictions in the Northwest Territories, and to step in front of that, it's poorly placed," he said.

The act provides for a "coordination agreement" between an Indigenous government and provincial or territorial government over the practical and financial aspects of child and family services delivery.  

Innes said that the N.W.T. government's concerns about administering Indigenous law are meant to be worked out in negotiations with an Indigenous government, which are specifically provided for during that coordination step. 

"That is the kind of government-to-government conversation that occurs every day, at every level, in a federation such as Canada."

In Innes's view, what's really at issue are questions of control over how decisions are made and how resources, namely federal funding, are allocated.  

"I suspect that is really the root of this, is the GNWT [Government of the N.W.T.] is looking to control those decisions and to control those resources."