Ottawa, province breached First Nations’ constitutional rights, Manitoba judge says in ‘historic’ ruling

The federal and provincial governments have managed First Nations child welfare in Manitoba in a way that breached the communities’ constitutionally protected right to self-governance, the chief justice of the Court of King’s Bench has ruled.

The chiefs of Black River First Nation, Pimicikamak Cree Nation and Misipawistik Cree Nation, along with the Assembly of Manitoba Chiefs — filed a class-action lawsuit in late 2022.

After hearing arguments last spring, King’s Bench Chief Justice Glenn Joyal issued his decision on Monday. He certified the claim as a class action and issued a summary judgment, meaning he decided on the merits of the case without a full trial.

The claim, as filed, sought $2.1 billion in damages for First Nations harmed by the apprehension of kids taken into care by child-welfare agencies between 1992 and the present.

But Joyal has not yet decided on what damages may be granted as part of the proceedings.

In his nearly 400-page decision this week, Joyal ruled the governments breached the First Nations’ constitutional right to self-governance, under Section 35 of the Constitution Act, which recognizes and affirms treaty and Aboriginal rights. Other aspects of the claim were dismissed.

“The plaintiffs have an Aboriginal right, recognized and affirmed by… the Constitution Act, to self-government in the area of (child-and-family services), which includes the right of the plaintiffs to raise their children in their culture,” reads Joyal’s ruling.

“The defendants have, through the manner in which they have funded, regulated and provided CFS in Manitoba during the relevant period (January 1, 1992, to present), unjustifiably infringed this right.”

The Assembly of Manitoba Chiefs described the court decision as “historic.”

Joyal said that the evidence established all Manitoba First Nations have “a distinctive, communal, land-based approach to childcare, guided by unique laws and customs,” but despite the governments imposing a child-welfare system upon them, the First Nations never fundamentally surrendered their right to care for their children in their own way.

The way the governments ran child-welfare services has caused undue hardship to the plaintiffs, Joyal ruled, and denied them their preferred means of exercising their right to govern CFS.

He found that conduct also compromised and negated the First Nations’ ability to “safeguard their own intergenerational and multi-generational cultural continuity and survival.”

He said the evidence shows First Nations children have been “significantly overrepresented” in the child-welfare system throughout the class period, but the governments’ efforts have done little to reduce the number of First Nations kids in care.

“Based on the statistical evidence alone, it would not be incorrect to say that the rates of apprehension and numbers of First Nations children in care during the class period have been and remain staggering,” Joyal said.

“Meanwhile, the extent and scope of the defendants’ interventions during this same period serve only to reinforce the existence of a serious and sustained problem, and, frankly, how little those interventions appear to have had any effect in reducing the rates of apprehension or sheer number of First Nations children in care.”

He said decisions made by the governments have resulted in a child-welfare system that disproportionately prioritized apprehensions ahead of prevention and family support services, which has severed ties between First Nations kids, their families and their communities.

All 63 First Nations in the province will be able to opt into the class-action as it proceeds.

Premier Wab Kinew called the court decision “significant.”

“We’re going to be reviewing the decision and figuring out the next steps,” he said.

The latest annual report for the provincial government’s Department of Families shows there were 9,172 children in care in 2024-25, an increase over recent previous years.

About 91 per cent of those children are Indigenous.

erik.pindera@freepress.mb.ca