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LEGAL OPINION – Native Women’s Association of Canada Pleased with SCOC Decision – the Right of Indigenous Communities to Manage Child and Family Services

Ottawa – The Native Women’s Association of Canada (NWAC) is pleased with the decision of the Supreme Court of Canada to uphold a federal law affirming the right of Indigenous communities to manage their own child and family services and to care for their children in need.

NWAC’s lawyers, who were granted intervenor status in the case, told the judges of the country’s top court in December 2022 that every discussion involving Indigenous self-governance rights must ensure that Indigenous women, girls, Two-Spirit, transgender and gender-diverse people can equally access those rights, despite longstanding and systemic discrimination. This basic precept has special impact when it comes to the care of Indigenous children who are too often removed from their communities when there is trouble at home.

“This ruling confirms that Canada’s legal system has room for Indigenous laws, without compromising anyone’s rights,” said NWAC President Carol McBride. “When Indigenous women and gender-diverse folks can participate equally in their communities’ child and family service systems, those communities are stronger and safer.”

The case stems from a lawsuit filed by Quebec against Canada, in which the province argued that Canada acted outside the law in 2019 when it passed Bill C-92 An Act respecting First Nations, Inuit and Métis children, youth and families. That bill affirmed that Indigenous nations have authority over their children and established minimum standards of care. Several Indigenous communities subsequently passed their own laws and agreements, affirming their inherent right to assume control over child and family services, including child protection and family supports.

Bill C-92, as written, affirms Indigenous Peoples’ right to self-government. Canada relied on both the United Nations Declaration on the Rights of Indigenous People (UNDRIP) and section 35 of the Constitution Act, 1982 in its drafting.

NWAC says the Supreme Court’s decision to uphold the law will help to reduce the unconscionable numbers of Indigenous children who are uprooted from their communities and placed in provincial child-welfare systems, away from their communities and cultures.

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