A struggle for power between the Saskatchewan government and the Saskatoon Tribal Council over who has responsibility for children in care was at least temporarily settled Thursday with the government coming out the victor.
However, a spokeswoman for the tribal council said it’s not being considered a defeat, and the hope is that the two sides will be able to negotiate new terms going forward.
Court of Queen’s Bench Justice Lian Schwann declared the tribal council “is prohibited from interfering with Saskatchewan’s exercise of its statutory mandate under the Child and Family Services Act on the Indian reserves of the defendant First Nations.”
Schwann also ordered the council to provide documents being sought by the province; to give government officials access to inspect the documents; and not to move, tamper with, or destroy the documents.
Government lawyer Michael Morris argued the province had to step in because the tribal council wasn’t sharing even basic information, such as how many children are in care or their names.
“Right now that information’s not being provided,” Morris said earlier this week.
“Who are the caregivers to those children? What services are being provided to them? What are their needs? What, if any, case planning is there in relation to them? For every child that has been put into care … Saskatchewan requires that information.”
First Nations agencies are required to monitor and track children in care on reserve and report back to the Ministry of Social Services. The province has delegation agreements with them.
But Saskatchewan Social Services Minister Donna Harpauer said earlier this month that years of trying to negotiate a new deal between the province and the Saskatoon Tribal Council have reached an impasse. She also said that federal funding expired in March, which meant the province could terminate its part of the agreement.
Tribal council lawyer Josephine de Whytell had argued the council was following a bilateral accord on caring for children that was signed with the province in 1996.
“Those First Nations have not given up their authority to act as independent nations responsible for the protection and well-being of their children,” she said.
“The order that’s being sought is not necessary to protect the best interests of the children because those children are already being protected by their own First Nations who are accountable to their own membership.”
“If you’re a sovereign nation, you cannot be told, ‘You need to give us that report,”‘ said council Chief Felix Thomas. “If you’re a sovereign nation, you’re told with respect, ‘Please share a report so that we can do what’s best for the child.”‘
He said all they wanted was for the province to “show us the respect.” On Thursday night, he issued a statement saying they would comply with the court order and make the documents available.
“Now is not the time to point the finger at Saskatchewan for what they have not understood they’ve done wrong,” he said.
In her ruling, Schwann agreed the council deserved respect, and criticized the government for some of its handling of the matter. She also said there is still much work to do for the two sides to come together and agree on how to move forward.
“I do not interpret Saskatchewan’s position as a wholesale reversal of First Nation-directed child protection and child welfare services,” she wrote in her judgment. “I perceive Saskatchewan’s application to be a stop-gap measure designed to address an immediate need and fill a regulatory gap.”
In granting the injunction sought by the province, she noted it will expire Sept. 30.
“The principal consideration in this case is the best interest of the children,” she wrote. “I have weighed the potential risk of harm to the children whose needs may go unmet until this matter is fully adjudicated or settled against the irreparable harm the defendants are likely to suffer if the injunction is granted.”
De Whytell said she was happy the judge in her ruling gave credence to some of the council’s arguments, and said tribal council officials don’t want to appeal the decision if they can be assured there is a willingness to come to a mutual resolution.
“We’re hopeful that in light of this decision, the province of Saskatchewan will return to the negotiating table and really make good on the promise to consider in good faith, the arguments that were put forward before the court, and recognize the error of some of the arguments they put forward in respect of subordination.”