Two more First Nations have signed coordination agreements under the Bill C-92 framework, helping ensure their right of self-government over child and family services (“CFS”) will be coordinated between the different governments.
It was a historic moment on January 31 as Peguis First Nation and the Governments of Canada and Manitoba signed the first coordination agreement in Manitoba. On February 1, Louis Bull Tribe became the first Indigenous community in Alberta to take control of child welfare. These are the third and fourth coordination agreements signed in Canada since An Act Respecting First Nations, Inuit and Métis children, youth and families (“Bill C-92”) became law.
Cowessess First Nation was the first Indigenous community to sign a coordination agreement with Canada and Saskatchewan in 2021. Wabaseemoong Independent Nations was the second, signing on with Canada and Ontario in 2022. More than 20 other Indigenous communities have requested coordination agreements since Bill C-92 became law.
Right of self-government includes jurisdiction over child and family services
Bill C-92, which we discussed in a previous blog, alters the CFS landscape in Canada with respect to Indigenous children. It has two fundamental purposes:
(1) it establishes minimum standards for how CFS, including prevention and protection services, must be provided to Indigenous children; and
(2) it recognizes and affirms that Indigenous peoples’ inherent right of self-government includes jurisdiction over CFS; specifically, it recognizes and affirms Indigenous peoples’ inherent right to make and administer their own CFS laws.
Coordination agreements under Bill C-92
When an Indigenous community intends to exercise their inherent jurisdiction over CFS under the Bill C-92 framework, they may also request that the federal and applicable provincial and territorial governments enter into a coordination agreement. These agreements essentially set out the relationship between the various governments and the mechanisms to support the Indigenous community exercising their inherent law-making power over CFS.
Coordination agreements can include any coordination measures related to the effective exercise of the Indigenous community’s legislative authority, including: (1) the roles and responsibilities of each government; (2) fiscal arrangements to allow the Indigenous community to effectively implement their jurisdiction and to secure long-term positive outcomes for their children; (3) jurisdictional matters (for example, who provides CFS to Indigenous children living off reserve and to non-Indigenous children living on reserve, on an emergency or after-hours basis); (4) supports to enable their children to exercise their rights effectively; and (5) the transferring of jurisdiction and information sharing.
Bill C-92 provides that if an Indigenous governing body enters into a coordination agreement or makes reasonable efforts to enter into a coordination agreement for one year, the Indigenous community’s CFS law will have the force of law as federal law and prevail over conflicting or inconsistent federal, provincial or territorial laws, subject to certain exceptions. The constitutionality of Bill C-92 is currently being considered by the Supreme Court of Canada; we are monitoring this case closely and will provide an update once the SCC releases its decision.
MLT Aikins LLP has a team of lawyers with experience assisting Indigenous communities draft their own CFS laws and negotiate coordination agreements with the federal, provincial and territorial governments. We are happy to assist Indigenous communities at all stages of drafting, enacting and implementing their CFS laws, including negotiating coordination agreements. Contact us to learn more.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.