Publication Date
2026
Document Type
Article
English Abstract
An Act respecting First Nations, Inuit and Métis children, youth and families came into force in January 2020 with the stated objectives of affirming Indigenous jurisdiction over child and family services, reducing the overrepresentation of Indigenous children in state care, and advancing Canada’s commitments under the United Nations Declaration on the Rights of Indigenous Peoples. Central to achieving these objectives are the Act’s National Standards, which are intended to ensure Indigenous communities are meaningfully included in decision-making processes. While these standards were upheld by the Supreme Court of Canada in 2024 as constitutional, emerging jurisprudence reveals significant shortcomings in the implementation of these standards. This article examines a growing line of cases in which courts have narrowly interpreted Indigenous governing bodies’ statutory right to “make representations,” frequently denying party status and restricting the scope of participation even where Indigenous communities have expressly sought to engage. The article argues that such interpretations undermine the Act’s objectives by excluding community-based evidence. These judicial approaches risk entrenching procedural barriers that perpetuate substantive inequality. The article contends that requiring Indigenous governing bodies to navigate complex provincial rules of court to secure meaningful participation is inconsistent with the Act’s purpose and design.
Citation Information
Patrick, Jamesy; Cattapan, Alana; and Yuen, Brenda.
"Restrictions on Party Status in Interpretations of An Act Respecting First Nations, Inuit And Métis Children, Youth And Families."
Journal of Law and Social Policy
38.
(2026): 46-63.
DOI: https://doi.org/10.60082/0829-3929.1515
https://digitalcommons.osgoode.yorku.ca/jlsp/vol38/iss1/4
References
1 See An Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24, s 8 [The Act]:
The purpose of this Act is to:
(a) affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services;
(b) set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children; and
(c) contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.
2 See Marlyn Bennett, Cindy Blackstock & Richard De La Ronde, A Literature Review and Annotated Bibliography on Aspects of Aboriginal Child Welfare in Canada (Winnipeg: University of Manitoba First Nations Research Site of the Centre of Excellence for Child Welfare, 2005), online (pdf): [perma.cc/2LJH-LE67]; Truth and Reconciliation Commission of Canada, Calls to Action (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 1, online: [perma.cc/S4P8-FEFQ]. The new Act was also a response to the decision in First Nations Child and Family Caring Society of Canada et al v Attorney General of Canada: see Naiomi Walqwan Metallic, “A Human Right to Self-Government over First Nations Child and Family Services and Beyond: Implications of the Caring Society Case” (2018) 28:2 JL & Soc Pol’y 4.
3 Statistics Canada, Indigenous population continues to grow and is much younger than the non-Indigenous population, although the pace of growth has slowed, in The Daily, Catalogue No 11-001-X (Ottawa: Statistics Canada, 21 September 2022) online: [perma.cc/Q34R-RDF9].
4 Ibid; Global News,“Number of Children in Saskatchewan’s Care Hits 11-year high, with 86% identified as Indigenous,” Global News (3 June 2020), online: [perma.cc/43DS-YS3W]; Government of Saskatchewan, “Child Welfare Statistics” online: [perma.cc/G5YG-QK4U]. The focus on overrepresentation rather than the need for broader systemic change can also be problematic: see Vandna Sinha, Ashleigh Delaye & Brittany Orav-Lakaski, “Reimagining Overrepresentation Research: Critical Reflections on Researching the Overrepresentation of First Nations Children in the Child Welfare System,” (2018) 28:1 JL & Soc Pol’y 10. Note: the term “child and family services cases” used in this article means any state or government involvement including investigations, applications and orders. The authors observe that language such as “child apprehension” and “child welfare” as it pertains to child and family services systems across Canada carries harmful colonial ideas of rescuing, apprehending, or protecting Indigenous children from their home communities. For the sake of clarity and consistency, we will use “child and family services” to describe all such child removal systems across Canada.
5 The Act, supra note 1, s 12(1).
6 Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 [ARFNIM Reference].
7 The Act, supra note 1, s 20.
8 Ibid, s 1.
9 Ibid, s 13 [emphasis added].
10 2019 ABQB 972 [SM].
11 2021 NBQB 14 [Eel River].
12 2021 ABPC 140 [DB].
13 See Child, Youth and Family Enhancement Act, RSA 2000, c C-12, s 53.1(2) [CYFEA] which states that upon being served and where the band attends Court the first time the matter is heard in Court, the band may:
a) appear,
b) be represented by a lawyer,
c) make representations to the Court, and
d) if the Court grants leave, and subject to any conditions the Court may impose, take further part in the proceedings.
See also DB, supra note 12 at paras 6, 22: counsel for the Blood Tribe suggested a liberal interpretation of ‘representation’ including the right to call witnesses and to cross-examine witnesses (at para 6). The Court allowed the Blood Tribe to call witnesses but stated that this does not mean IGBs will be granted intervenor or party status.
14 See Welter v Kequahtooway, 2023 SKKB 33 [Welter v Kequahtooway].
15 The Act, supra note 1, s 12.
16 Ibid, s 13.
17 2016 SKCA 151 [LSO].
18 Ibid at para 18.
19 See The Child and Family Services Act, SS 1989–90, c C-7.2 [CFSA SS].
20 LSO, supra note 17 at para 28.
21 Ibid at para 17.
22 Naiomi Walqwan Metallic et al, An Act respecting First Nations, Inuit, and Métis Children, Youth and Families: Does Bill C-92 Make the Grade? (Toronto: Yellowhead Institute, 2019) at 9, online (pdf): [perma.cc/H7NL-UV5S].
23 Ibid at 6.
24 Elmer Driedger, Construction of Statutes, 2nd ed (Toronto: Butterworths, 1983) at 87, as cited in Rizzo & Rizzo Shoes Ltd (Re), 1998 CanLII 837 (SCC) at para 21.
25 ARFNIM Reference, supra note 6 at para 7, citing Gordon Christie, “Indigenous Legal Orders, Canadian Law and UNDRIP” in John Borrows, Larry Chartrand, Oonagh E. Fitzgerald & Risa Schwartz, eds, UNDRIP Implementation: Braiding International, Domestic and Indigenous Laws (Montréal: McGill-Queen's University Press, 2017) 48 at 48.
26 Government of Canada, “Reducing the Number of Indigenous Children in Care” (15 February 2023), online: . The webpage has since been updated and retitled “About an Act respecting First Nations, Inuit and Métis children, youth and families.”
27 See Child, Youth and Family Services Act, SO 2017, c 14, s 2(4) [CYFSA SO]. See also Child, Family and Community Service Act, RSBC 1996, c 46, ss 39(1)(c)–(d) [CFCSA RSBC]. For further discussion of the evolution of provincial child welfare legislation related to Indigenous children (and possibilities for federal intervention), see Sébastien Grammond, “Federal Legislation on Indigenous Child Welfare in Canada,” (2018) 28:1 JL & Soc Pol’y 132.
28 CYFSA SO, supra note 27, s 79(1)(4).
29 CFSA SS, supra note 19, ss 2(1)(a.1), 37(10), which state that notice of long term and permanent applications are limited to a “Band” as described under the Indian Act, RSC 1985, c I-5.
30 CFSA SS, supra note 19 fails to define “significant measure,” leaving potential gaps in terms of when notice ought to be provided to an IGB of a decision made respecting an Indigenous child.
31 CFSA SS, supra note 19, ss 24(4), 37(10). See also The Saskatchewan Gazette, Gazette Part I, June 14, 2024, Issue No 24 (Regina: Office of the King’s Printer) at 772 online: [perma.cc/C8G5-MCY9].
32 See Family Law Act, SNB 2020, c 23 [FLA]; Child and Youth Well-Being Act, SNB 2022, c 35, s 41(2) [CYWA]. While the FLA does not explicitly mention Indigenous children, families or IGBs, s 41(2) of the CYWA outlines vague guidelines for integrating traditional knowledge and Indigenous led decision-making practices into “collaborative approaches.” To this end, the CYWA was criticized by several Indigenous groups in New Brunswick for failing to address issues they previously raised and for failing to include Indigenous voices; see “N.B. First Nation adopts ‘historic’ child welfare legislation,” CBC News (15 June 2022), online: [perma.cc/34LH-MP2B].
33 CYFEA, supra note 13, s 53.1(1).
34 See CYWA, supra note 32.
35 2024 MBKB 109 at paras 68–71 [PLG].
36 House of Commons, Standing Committee on Indigenous and Northern Affairs (7 May 2019), Anishinabek Nation Issues and Recommendations: on Bill C-92 An Act respecting First Nations, Inuit, and Métis children, youth and families (Written Submission, Anishinabek Nation/Union of Ontario Indians) at 5–6, online (pdf): [perma.cc/9SSR-X2QA]; House of Commons, Standing Committee on Indigenous and Northern Affairs (8 May 2019), Presentation to Standing Committee on Indigenous and Northern Affairs Regarding Bill C-92: An Act respecting First Nations, Inuit, and Métis Children, Youth and Families (Written Submission, Tikinagan Child and Family Services), online (pdf): [perma.cc/3W3D-VL7E].
37 House of Commons, Standing Committee on Indigenous and Northern Affairs (2 May 2019), Concerns and Recommendations on Bill C-92, An Act respecting First Nations, Inuit, and Métis Children, Youth and Families (Written Submission, Chiefs of Ontario) at 11, online (pdf): [perma.cc/82CL-VPGZ].
38 Ibid.
39 First Nations Caring Society of Canada, Preliminary Briefing Sheet – Bill C-92: An Act respecting First Nations, Inuit, and Métis Children, Youth and Families (9 March 2019) at 6, online (pdf): [perma.cc/Q5QQ-X6SU].
40 See CFCSA RSBC, supra note 27, s 5(1.1); CYFSA SO, supra note 27, s 79(1)(4).
41 See e.g. Saskatchewan’s CFSA SS, supra note 19. The Band is typically notified of all applications by way of practice and policy rather than by legislative obligation. However, under CFSA SS, the Ministry of Agency must provide the Band 60 days’ notice for any permanent or long-term wardship application, and the Band is also automatically a party to these applications (Ibid, ss 37(2)–(3), 37(10)–(11)).
42 SM, supra note 10.
43 Ibid.
44 2018 ABPC 96 [URM].
45 CYFEA, supra note 13.
46 See SM, supra note 10 at paras 78 and 93. Regarding the Pedersen Factors, the Court notes that: “The first factor considers whether the intervenor is directly affected by the appeal. […] The second, third, and fourth factors consider whether the presence of the intervenor is necessary for the court to properly decide on the matter; whether the intervenor’s submission will be useful and different or bring particular expertise to the subject matter of the appeal; and whether the intervenor’s interest in the proceedings will be fully protected by the other parties.”
47 Ibid at para 89 [emphasis added].
48 Ibid at paras 89–90 [emphasis added].
49 The Act, supra note 1, s 33.
50 SM, supra note 10 at para 292. Notably, the Court affirmed that, “…while clearly important, culture does not trump all else. Instead, Bill C-92 clarifies at section 10(1) that the best interests of the child remains the primary and paramount consideration, and at section 10(2) that when the best interest factors are being considered, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture.”
51 Without hearing from the Nation and by denying the procedural safeguard as contemplated by Bill C-92, western concepts of attachment and stability will likely override considerations that are relevant to a Nation and to the best interests of an Indigenous child.
52 Eel River, supra note 11.
53 See The Act, supra note 1, s 13.
54 Eel River, supra note 11 at 14. Specifically, the IGB sought the following:
1) The Moving Party will request an Order for a leave to intervene as an added party to the proceeding, pursuant to Rule 15.02 of the Rules of Court of New Brunswick and paragraph 13 (b) of an Act respecting First Nations, Inuit and Metis children, youth and family, SC 2019, ch. 24;
2) That the moving party be allowed to fully participate in the proceeding in this matter as a full party to the proceeding and be entitled, including without limiting the following: to provide/adduce evidence, to cross-examine any witnesses on behalf of the Applicant or the Respondent, be entitled to receiving full disclosure of the Applicant’s file; be entitled to file pleading with the Court, and make submission pursuant to Rule 15.02 (2) of the Rules of Court of New Brunswick;[…]
3) An Order giving permission to the Moving Party’s solicitor to cross-examine any person who would make an Affidavit on behalf of the Applicant and/or the Respondent, pursuant to Rules 39.02 and 39.03 of the Rules of Court of New Brunswick;
4) That the Applicant be ordered to provide his witness list to the Moving Party, at least 20 days before the Trial, pursuant to Rule 2.04 of the Rules of Court of New Brunswick;
5) That the Trial date be fixed to hear this matter pursuant to Rule 2.04 of the Rules of Court of New Brunswick and section 53 (3) of the Family Services Act;
6) That cost be granted against the Applicant in this matter, pursuant to Rule 59 of the Rules of Court of New Brunswick and paragraph 53 (1.1) of the Family Services Act.
55 Ibid at para 27.
56 See ibid at para 15.
57 Ibid at para 29.
58 Ibid at para 34.
59 Ibid.
60 See DB, supra note 12 at paras 4-5.
61 Ibid at para 6.
62 Ibid at para 4-5.
63 2020 ABPC 109 [HM].
64 See DB, supra note 12 at para 12.
65 Orphan Well Association v Grant Thornton Limited, 2016 ABCA 238 [Orphan Well].
66 DB, supra note 12 at paras 14–15.
67 Ibid at para 16; The Act, supra note 1.
68 See DB, supra note 12 at para 19.
69 SM, supra note 10; Eel River, supra note 11; DB, supra note 12.
70 AMF v Alberta (Child, Youth and Family Enhancement Act, Director), 2023 ABCJ 287 at paras 11–12 [AMF v Alberta].
71 Hadley Friedland, Naiomi Metallic & Koren Lightning-Earle, "Judicial Workbook on Bill C-92 — An Act Respecting First Nations, Inuit and Métis Children, Youth and Families" (2022), online (pdf): [perma.cc/6LL5-C2R4] [“Judicial Workbook”].
72 Ibid at 2.
73 AMF v Alberta, supra note 70 at para 10.
74 Welter v Kequahtooway, supra note 14.
75 Children's Law Act, SS 2020, c 2 [CLA].
76 MSD v AC, 2021 NBQB 14; MM v Alberta (Child, Youth and Family Enhancement Act, Director), 2021 ABPC 317; DB, supra note 12; and RAB (Re), 2019 ABPC 178.
77 Métis Child, Family and Community Services v CPR, 2022 MBCA 40.
78 Welter v Kequahtooway, supra note 14 at paras 37–38.
79 Ibid para 39.
80 JC (Re), 2022 ABPC 212.
81 PLG, supra note 35; AMF v Alberta, supra note 69 at para 10.
82 “Judicial Workbook,” supra note 70. Of note, an IGBs “lack” of participation may be attributed to several factors: geographical challenges, financial limitations and overall resource challenges to have a representative of the community or lawyer present on all applications.
83 Eel River, supra note 11.
84 The Act, supra note 1, s 8(b).
85 Ibid, s 9(3)(d).
86 ARFNIM Reference, supra note 6.
87 The Act, supra note 1, s 9(3)(d).
88 ARFNIM Reference, supra note 6.
89 See for example, Cindy Blackstock & Hadley Friedland, “C-92: The Good, the Bad and the Unknowns: Part I” (6 November 2019), online (Video): [perma.cc/THH9-9ABS]; Canadian Bar Association, “Legislative Spotlight: Bill C-92 and its Impact on Your Practice (Archived Video Stream)” (28 November 2019), online: [perma.cc/7SQK-EKQ5].
90 See The Act, supra note 1 at preamble; see CYFSA SO, supra note 27, s 25(c)
91 Metallic et al, supra note 22 at 6.