Cook v. Manitoba: Court recognizes Section 35 Aboriginal right to self-government in Child and Family Services

This Insight was prepared with the assistance of summer student Kiera Munroe.

In Chief Heidi Cook et al. v. The Government of Manitoba et al., the Court of King’s Bench of Manitoba certified a class action brought by Misipawistik Cree Nation, Black River First Nation, Pimicikamak Cree Nation and the Assembly of Manitoba Chiefs (collectively, the Plaintiffs) against Canada and the Province of Manitoba (collectively, the Defendants) relating to the child welfare system in Manitoba. The Court also granted a summary judgment on liability, finding that both Canada and Manitoba breached First Nations’ Aboriginal right to self-government in Child and Family Services (CFS).

This case is significant because the Court:

• Recognized a Section 35 Aboriginal right to self-government in CFS
• Found that the defendants unjustifiably infringed that right
• Granted declaratory relief

Certification of class action

The Plaintiffs alleged that the Defendants violated numerous constitutional rights held by the Plaintiffs, due to the legislative structure, government funding and implementation and delivery of CFS to First Nations children and families in Manitoba. The Court certified the Plaintiffs’ claim respecting the alleged breach of Section 35 of the Constitution Act, 1982. The Court dismissed the Plaintiffs’ claims based on breaches of fiduciary duty, the honour of the Crown, negligence, Sections 2(a) and 15 of the Canadian Charter or Rights and Freedoms and Section 36 of the Constitution.

Existence of Section 35 Aboriginal right to self-government

Section 35 of the Constitution recognizes and affirms the Aboriginal and Treaty rights of Aboriginal Peoples. In this case, the Court held that Manitoba First Nations have an Aboriginal right to self-government in relation to CFS, including the right to raise their children in their culture and community, with a connection to their land and immersed in their language and spiritual traditions. In reaching that conclusion, the Court relied on An Act respecting First Nations, Inuit and Métis children, youth and families (Bill C-92), the Quebec Court of Appeal’s decision in the Bill C-92 constitutional reference decision, the United Nations Declaration on the Rights of Indigenous Peoples Act and the 2024 enactment by Manitoba of An Act Respecting Child and Family Services (Indigenous Jurisdiction and Other Amendments), SM 2024, c 36.

Another important part of the judgment is that the Court modified the test for the existence of an Aboriginal right as set out in R v. Van der Peet. While the Court acknowledged that the Plaintiffs had not provided the type of Nation-specific evidence traditionally required to establish an Aboriginal right, the Court held that developments in the jurisprudence, legislative recognition of Indigenous jurisdiction over child welfare and the interpretive role of the United Nations Declaration on the Rights of Indigenous Peoples justified a different approach, rather than relying on detailed Nation-specific historical proof.

Breach of Section 35 Aboriginal right to self-government

In addition to certifying the Plaintiffs’ claim respecting the alleged breach of their Section 35 right to self-government in CFS, the Court also granted summary judgment on liability, finding that the right to self-government in CFS had been breached.

The Court accepted that both of the Defendants had a legitimate interest in protecting children and participating in the provision of child welfare services. The issue was not that Defendants provided CFS to First Nations children and families, but rather the inadequate manner in which the Defendants funded, regulated and provided CFS to First Nations children and families in Manitoba. After reviewing extensive evidence concerning the apprehension-first system, culturally inappropriate placements, inadequate funding structures, failures to maintain children’s connections to their First Nations and lack of supports for healing and reconnection, the Court concluded that the cumulative effect of the Defendants’ conduct substantially impaired the Plaintiffs’ ability to exercise their right to self-government over CFS.

The Court found that the Defendants limited the Plaintiffs’ right to self-government in CFS, imposed undue hardship and denied First Nations their preferred means of exercising the right. The Court further concluded that the Defendants’ conduct compromised the Plaintiffs’ ability to safeguard their cultural continuity and survival and that this constituted an infringement of the Plaintiffs’ Section 35 Aboriginal right to self-government over CFS.

Having found a prima facie infringement, the Court then considered whether it could be justified, ultimately holding that it could not be. Although the Court found that the protection of children constituted a compelling and substantial objective, the Court found insufficient evidence that the Defendants adequately discharged their obligations to consult and accommodate First Nation interests. The Court found that, taken together, the Defendants’ actions had more than a minimal negative impact on the right and that this impact outweighed the benefits the policy was intended to achieve.

Finally, the Court held that declaratory relief was both available and appropriate. The Court emphasized that the parties remain in an ongoing relationship concerning child and family services and that a declaration would have practical utility in guiding that relationship going forward.

The Supreme Court of Canada has yet to make a determination on the Section 35 Aboriginal right to self-government over CFS. We will continue to monitor this area of the law and provide further information as the jurisprudence continues to evolve.

The MLT Aikins Indigenous practice group can assist First Nations with drafting their own CFS laws, helping them take back control over the welfare of their Nations’ children. We would be honoured to assist your Indigenous community in all aspects of asserting and exercising your inherent right of self-government over CFS.

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