Joining a Quebec government constitutional challenge to the “An Act Respecting First Nations, Inuit and Métis Children, Youth and Families” as an intervener was the decision of Justice Minister RJ Simpson, because of “ambiguous” language that potentially changes the legislative authority of the Northwest Territories.
He spoke to media alongside Premier Caroline Cochrane at a press conference on Monday to clarify their position on the law, which allows Indigenous governments to assume jurisdiction over child care of their beneficiaries.
Taking responsibility for the decision to join as an intervener, Simpson said the unique circumstances of the NWT Act, which defines the GNWT’s legal power as a government, created a legal limbo with the new federal act.
“This intervention is about a constitution issue that has emerged as a result of language used in the federal act and what that means for the NWT Act,” he said. “Section 21 of the federal act intends for an Indigenous law to have the force of federal law. The NWT Act states that when a conflict arises between a federal and territorial law, the federal law prevails. The constitution act does not contain this language, which means the legal outcomes of the federal law could vary drastically between the NWT and the provinces.
“The federal law could be interpreted as permitting Indigenous governments to pass laws that supersede the legislative assembly. However, the NWT Act requires the federal government to consult the GNWT on constitutional issues. What could happen is an Indigenous government could pass laws and the GNWT would have to implement those laws.”
He added the GNWT only became aware of the conflict between the two laws during the appeal process and the GNWT had spoken with the Yukon government, which is under a similar legal framework with the Yukon Act.
However, the Yukon government has not joined the Supreme Court case.
Simpson added the federal government could amend the NWT Act to fix the legal issue, but so far has not done so.
“I have to say it is very unfortunate that the federal legislation that raised the issue is related to child and family services,” said Simpson. “Given the history of our territory, it is understandable that the decision to intervene is being seen as colonial and hurtful. However, as attorney general, I have an obligation to ensure that the legislative regime in the NWT is stable and predictable and allows the GNWT to adhere to its legal requirements for the benefit of all residents.”
Saying she found the idea of Indigenous governments taking over child welfare “exciting,” Cochrane said she was unaware if the GNWT had reached out to explain to the Inuvialuit Regional Corporation (IRC) why it was joining the constitutional challenge as an intervener.
“We fully support Indigenous people to write laws pertinent to their jurisdictions,” said Cochrane. “I do know the Department of Health and Social Services has been working with the IRC for over a year on this. I’m not exactly aware of what kind of communications came with the duty to intervene, but what I can say is often the issue is around communication.
“I had a few moments in the airport when I was coming back from Ottawa to talk to the (IRC) chairman (Duane Ningaqsiq Smith) and I think a lot of this is around miscommunication.”
Cochrane said she was hoping to speak further with Smith about the matter later in the year, but the GNWT would not be withdrawing its intervener status, as it is the attorney general’s jurisdiction.
Not in good faith
Smith previously told NNSL Media that the IRC learned the GNWT, which had been regularly engaging in negotiations over how the new law would be implemented, joined Quebec as an intervener against the federal law in late September or early October. Alberta, British Columbia and Manitoba are also part of the constitutional challenge against the 2019 legislation.
“It’s unfortunate the GNWT decided to do an about-turn at the 11th hour when the premier initially comes out commending and supporting us,” he said, adding he hoped the GNWT would withdraw. “That’s not what you call dealing in good faith.”
Smith said the IRC only learned about the GNWT’s plans to join the court case in around late September. A spokesperson for the GNWT confirmed “IRC officials were aware of our plan to Intervene and knew weeks ago about this plan.”
Passed just over a year ago, the IRC’s first law — Inuvialuit Qitunrariit Inuuniarnikkun Maligaksat, or the “Inuvialuit Family Way of Living Law” — set the process in place for a year of negotiations with the federal government and GNWT to hammer out the details about implementation. The law then entered full force on Nov. 25, 2022 — exactly one year after it was passed.
The next step is for the federal government to begin funding the framework. Funding is based on the number of Inuvialuit children registered with the IRC.
Over the last year, the IRC has been working to be ready for the transition, including hiring staff and developing new child welfare programs.
However, if the Supreme Court of Canada doesn’t recognize the rights of Indigenous governments to manage the well-being of their children, which is currently being heard in the country’s top court, the legal foundation for the IRC’s law would be null and void.
Smith said he expected to hear a decision from the Supreme Court early next year.
“We’ve got very strong support from our communities in this initiative,” he said. “All of the Inuit organizations, including Inuit Tapiriit Kanatami (ITK), are also interveners (on our side) and are supportive of us as well.
“I hope there isn’t a problem and we can get it straightened out.”
Last week, the IRC published an open letter advertisement in the Dec. 7 edition of Yellowknifer, Dec. 8 edition of the Inuvik Drum and the Globe and Mail chastising Cochrane for joining the Quebec case. The public correspondence calls on Cochrane to withdraw the GNWT from intervener status.