In Chief Heidi Cook et al. v. The Government of Manitoba et al., the Manitoba Court of King’s Bench recognized that Manitoba First Nations possess a constitutionally protected Aboriginal right of self-government in relation to child and family services (“CFS“), protected under s. 35(1) of the Constitution Act, 1982.1 The Court further held that Canada and Manitoba unjustifiably infringed that right through the design, funding, regulation, and administration of Manitoba’s child welfare system.2
The decision represents a significant development in the evolving jurisprudence on Indigenous self-government and section 35 rights. Beyond recognizing a constitutional right to govern child and family services, the Court found that systemic deficiencies in the child welfare regime undermined the ability of First Nations to preserve cultural continuity, community connections, and Indigenous approaches to caring for children. The judgment also provides important guidance regarding the implementation of Indigenous child welfare laws under Bill C-92, coordination agreements, constitutional remedies, and future compensation claims.
Recognition of a Section 35 Right to Self-Government in Child and Family Services
At the heart of the decision is the Court’s recognition that First Nations possess an inherent right to govern child and family services within their communities. The Court held that the right encompasses far more than administrative control over child welfare agencies. Rather, it includes the authority to ensure that Indigenous children are raised within their cultures, communities, languages, spiritual traditions, and territorial relationships.3
The Court emphasized that maintaining children’s connection to their families, communities, and Indigenous identities is indispensable to the cultural continuity and survival of First Nations peoples.4 In doing so, the Court characterized child and family services as a core aspect of Indigenous self-government rather than merely a social service program.
The judgment builds upon previous developments arising from Bill C-92. The Court noted that Parliament expressly affirmed the inherent right of self-government in relation to child and family services through the Act respecting First Nations, Inuit and Métis children, youth and families (“Bill C-92“).5 Manitoba similarly recognized Indigenous jurisdiction through amendments to its own Child and Family Services Act.6
The Court relied heavily on the Quebec Court of Appeal’s conclusion that jurisdiction over child and family services is an existing Aboriginal right protected by s. 35. Importantly, although the Supreme Court of Canada in the Reference re An Act respecting First Nations, Inuit and Métis children, youth and families declined to determine the existence or scope of any particular Aboriginal right, it upheld the constitutional validity of Bill C-92 and did not disturb the Quebec Court of Appeal’s conclusions regarding Indigenous self-government in child and family services.7 The Manitoba Court viewed this as significant support for recognizing the claimed section 35 right.
Moving Beyond Van der Peet
One of the most significant doctrinal aspects of the decision is the Court’s departure from a strict application of the Van der Peet test for establishing Aboriginal rights.8
The Court found that the traditional Van der Peet framework was ill-suited to evaluating claims involving Indigenous self-government. Instead, it adopted a more flexible approach centred on whether the claimed right is necessary for cultural security and continuity and whether recognition of the right is compatible with Crown sovereignty.9
This analytical framework reflects a broader constitutional focus on reconciliation and Indigenous cultural continuity. By emphasizing the connection between child welfare and collective cultural survival, the Court recognized that self-government claims may require a distinct analytical approach from claims concerning discrete traditional practices.
Unjustified Infringement by Canada and Manitoba
Having recognized the existence of a section 35 right, the Court proceeded to examine whether government conduct infringed that right.
The Court concluded that Canada and Manitoba unjustifiably infringed the right through their funding, regulation, and operation of child welfare services from January 1, 1992 onward.10 The Court identified numerous systemic deficiencies within the child welfare regime, including:
- An overreliance on child apprehension instead of prevention and family support;
- Funding structures that disadvantaged First Nations communities;
- Cultural disconnection resulting from foster placements;
- Failure to maintain children’s relationships with their communities and Nations;
- Inadequate support for healing and cultural reconnection; and
- Provincial standards that failed to reflect Indigenous laws, values, and traditions.11
While the protection of children was accepted as a compelling governmental objective, the Court held that Canada and Manitoba failed to satisfy the constitutional justification test.12
In particular, the Court found that governments inadequately consulted and accommodated First Nations regarding the child welfare system and that the cumulative effects of government conduct significantly impaired Indigenous self-government rights.13
Implications for Indigenous Child and Family Services Laws
The practical significance of the decision is considerable.
Bill C-92 expressly recognizes that the inherent right of self-government includes jurisdiction over child and family services, including legislative authority and the power to administer and enforce Indigenous laws.14 The Supreme Court of Canada’s decision in the Reference re An Act respecting First Nations, Inuit and Métis children, youth and families confirmed Parliament’s authority to enact legislation recognizing such jurisdiction under section 91(24) of the Constitution Act, 1867.15
The Cook decision now provides judicial affirmation that such jurisdiction is not merely statutory but constitutionally protected. Indigenous governing bodies therefore possess a stronger legal foundation to enact their own child and family services legislation and create culturally grounded institutions and governance structures.16
For First Nations seeking greater autonomy in child welfare, the decision reinforces that jurisdiction exists as a matter of constitutional right rather than governmental discretion.
Coordination Agreements Under Bill C-92
The judgment also highlights the importance of coordination agreements under Bill C-92.
These agreements facilitate the transition from provincial child welfare regimes to Indigenous legal systems by addressing matters such as funding, emergency services, administrative cooperation, implementation mechanisms, and service coordination.17 The Court noted that several Indigenous governing bodies had pursued coordination agreements and that Peguis First Nation successfully negotiated one to implement its own child and family services laws.18
As more Indigenous governing bodies exercise jurisdiction pursuant to Bill C-92, coordination agreements will likely become an increasingly important instrument for operationalizing Indigenous self-government.
Damages, Remedies, and Limitation Issues
Although the Court granted declarations recognizing both the section 35 right and its unjustified infringement, issues relating to damages and other remedies were deferred to Stage 2 of the proceedings.19
Stage 2 will address not only damages, but also questions of causation, allocation of responsibility between Canada and Manitoba, and whether injunctive, declaratory, supervisory, or other forward-looking remedies are warranted.20
Significantly, the Court accepted that the plaintiffs had advanced a plausible methodology for quantifying collective damages resulting from excess child apprehensions and associated cultural harms.21 The proposed evidence included a “multi-attribute utility theory” approach aimed at assessing and valuing collective harms in a culturally appropriate manner. The Court further held that sufficient data appears to exist to permit the quantification of damages should liability ultimately be established.22
The Court also confirmed that declaratory relief remains available even if claims for monetary relief are ultimately found to be statute-barred.23 As a result, judicial recognition of constitutional wrongdoing does not necessarily depend on the availability of damages.
Limitation Periods and Double Recovery
The Court declined to summarily determine whether limitation periods bar some or all of the plaintiffs’ claims, leaving those issues for a later phase of the litigation.24 In doing so, the Court acknowledged unresolved constitutional questions concerning the application of limitation statutes to section 35 claims and emphasized that constitutional declarations may remain available regardless of limitations issues.25
The Court also rejected Canada’s argument that the claims were barred by section 9 of the Crown Liability and Proceedings Act or by principles prohibiting double recovery.26 It held that previous settlements and compensation frameworks did not involve sufficiently similar claimants, facts, harms, or causes of action to preclude the claims advanced by the plaintiff First Nations.27
Dismissed Causes of Action
While the plaintiffs succeeded on their section 35 claim, the Court dismissed several alternative causes of action, illustrating the distinct constitutional character of the litigation.
First, the Court rejected claims based on the honour of the Crown as a standalone cause of action. The honour of the Crown remains a constitutional principle that informs the interpretation and implementation of Crown obligations, particularly in the section 35 context, but it does not independently generate a claim for damages or other relief.28
Second, claims for both sui generis and ad hoc fiduciary duties were dismissed. With respect to a sui generis fiduciary duty, the Court held that the plaintiffs had not identified the type of cognizable Aboriginal interest, such as a specific interest in land, that traditionally gives rise to such duties.29 The Court further concluded that imposing a private-law fiduciary obligation would conflict with the public-law child welfare regime and the Crown’s obligation to prioritize the best interests of children.30
As for an ad hoc fiduciary duty, the Court found no evidence that Canada or Manitoba had undertaken to act exclusively in the interests of the plaintiff First Nations. Instead, governments remained responsible for balancing competing obligations owed to children, families, communities, and the public generally.31
Third, the negligence claims were dismissed because governments do not owe a private-law duty of care to prioritize a Nation’s collective interests within the child welfare system. The Court further held that many of the challenged decisions related to funding models, legislative choices, and system design constituted core policy decisions, which are generally immune from negligence liability.32
Finally, the Court rejected Charter claims brought under sections 2(a) and 15 because they were advanced by First Nations as collective entities. Under current Charter jurisprudence, the rights asserted in this case are generally understood as individual rather than collective rights.33 The Court also concluded that section 36 of the Constitution Act, 1982 does not create enforceable rights capable of supporting the plaintiffs’ claims.34
These dismissals underscore the Court’s conclusion that section 35, not fiduciary law, negligence law, or the Charter, provided the proper constitutional framework for addressing the harms alleged by the plaintiffs.
Practical Implications for Indigenous Governments
Beyond its significance as a section 35 decision, Cook has important practical implications for Indigenous governments exercising jurisdiction under Bill C-92.
First, the decision strengthens the constitutional foundation for Indigenous child and family services legislation. First Nations contemplating the enactment of their own child welfare laws can point to both Bill C-92 and Cook as recognizing Indigenous jurisdiction as a matter of constitutional significance rather than delegated authority.
Second, the decision may strengthen Indigenous positions during coordination agreement negotiations. Governments may face increased pressure to provide stable funding, operational supports, information-sharing protocols, and implementation mechanisms that permit Indigenous governing bodies to meaningfully exercise jurisdiction.
Third, the Court’s emphasis on cultural continuity, prevention-focused services, and community-based decision-making may influence the drafting of Indigenous child and family services laws. Indigenous governments may wish to ensure that legislation expressly incorporates language revitalization, customary care arrangements, family reunification mechanisms, culturally grounded decision-making processes, and protections designed to maintain children’s connection to their Nation.
Finally, the judgment highlights the importance of information-sharing and disclosure. Effective exercise of jurisdiction under Bill C-92 may require Indigenous governing bodies to obtain timely access to information regarding child welfare investigations, placements, service histories, and planning decisions affecting their children and families. Information-sharing mechanisms are therefore likely to remain a critical component of future coordination agreements and implementation arrangements.
Conclusion
The Cook decision represents a significant judicial recognition of Indigenous self-government in Canada. By recognizing a constitutionally protected right to govern child and family services, the Court strengthened the legal foundation for Indigenous jurisdiction over matters central to cultural continuity, child well-being, and community survival.
The Court’s findings regarding decades of unjustified infringement by Canada and Manitoba may ultimately have significant implications for compensation claims, governance negotiations, and the implementation of Indigenous child welfare laws across Canada. For First Nations pursuing jurisdiction under Bill C-92, the decision provides substantial constitutional support for the development of Indigenous-led child and family services systems that prioritize prevention, cultural connection, family preservation, and community-based care.
How Barriston Law Can Help
The Cook decision confirms that Indigenous jurisdiction over child and family services is not merely a policy objective, it is increasingly being recognized as a constitutionally protected aspect of Indigenous self-government. As First Nations continue to implement jurisdiction under Bill C-92 and develop their own child and family services laws, communities face complex legal, governance, funding, and implementation challenges.
At Barriston Law, our Indigenous Legal Department works alongside First Nations governments, Tribal Councils, Child and Family Services agencies, and Indigenous organizations to support the exercise of Indigenous jurisdiction and the advancement of Nation-led governance initiatives. Our services include:
- Drafting and reviewing Indigenous child and family services laws and governance frameworks
- Advising on the implementation of jurisdiction under Bill C-92 and related federal and provincial legislation
- Negotiating coordination agreements with Canada and provincial governments
- Providing advice on funding arrangements, service delivery models, and governance structures
- Supporting Indigenous governments in matters involving section 35 rights, consultation, accommodation, and Crown–Indigenous relations
- Advising on information-sharing protocols, child welfare governance, and culturally grounded service delivery systems
- Representing First Nations in litigation, negotiations, and strategic initiatives involving Indigenous self-government and Nation rebuilding
As Indigenous governments continue to assume greater control over services affecting their citizens, robust legal frameworks and effective governance structures will be essential to ensuring that Indigenous laws and institutions can operate successfully in practice. Barriston Law is committed to supporting First Nations in advancing self-determination, strengthening governance, and protecting the well-being of future generations.
Contact Barriston Law
To learn more about how Barriston Law can assist your Nation, organization, or child and family services authority with Indigenous governance, Bill C-92 implementation, coordination agreements, or section 35 matters, visit barristonlaw.com or contact our Indigenous Legal Department directly.
Written by Garnik Martirosov
Disclaimer: This article is provided for general informational purposes only and does not constitute legal advice. The legal principles discussed in this article are evolving and may be affected by future court decisions, legislation, or negotiations between Indigenous governments and the Crown. Every Nation’s circumstances are unique. Readers should obtain independent legal advice tailored to their specific circumstances before taking action based on the information discussed herein.
[1] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 35(1); Chief Heidi Cook et al v The Government of Manitoba et al, 2026 MBKB 65 at para 812 [Cook].
[2] Cook, supra note 1 at para 812.
[3] Ibid at para 812.
[4] Ibid at paras 461–462, 701, 812
[5] An Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24, ss 8(a), 18(1); Cook, supra note 1 at paras 463, 466.
[6] Cook, supra note 1 at paras 468, 703.
[7] Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 at paras 9, 136; Cook, supra note 1 at paras 469, 653.
[8] R v Van der Peet, [1996] 2 SCR 507, 1996 CanLII 216.
[9] Cook, supra note 1 at paras 458, 677, 682.
[10] Ibid at para 812.
[11] Ibid at paras 719–749.
[12] Ibid at paras 765–766.
[13] Ibid at paras 774–780, 784–788.
[14] An Act respecting First Nations, Inuit and Métis children, youth and families, supra note 5, s 18(1).
[15] Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, supra note 7 at paras 9, 136.
[16] Cook, supra note 1 at para 466.
[17] An Act respecting First Nations, Inuit and Métis children, youth and families, supra note 5, ss 20–25.
[18] Cook, supra note 1 at para 383.
[19] Ibid at para 792.
[20] Ibid at paras 290, 792.
[21] Ibid at paras 487–491.
[22] Ibid at para 496.
[23] Ibid at paras 802–804.
[24] Ibid at paras 225, 251.
[25] Ibid at paras 241, 249; Canada v Jim Shot Both Sides, 2022 FCA 20 at para 206.
[26] Crown Liability and Proceedings Act, RSC 1985, c C-50, s 9.
[27] Cook, supra note 1 at para 259; Fisher River Cree Nation v Canada (Attorney General), 2025 FC 561 at para 45.
[28] Cook, supra note 1 at paras 533–536, 824.
[29] Ibid at paras 541–548.
[30] Ibid at paras 559–563, 825.
[31] Ibid at paras 568–574, 826.
[32] Ibid at paras 591–603, 827.
[33] Ibid at paras 418–450, 822.
[34] Ibid at para 524.