Chief Heidi Cook v The Government of Manitoba
MOVING BEYOND RECOGNITION INTO ENFORCEMENT: Indigenous Self-Government in the Area of Child and Family Services
INTRODUCTION/OVERVIEW
On May 11th, 2026, the Manitoba Court of King’s Bench released its decision in Chief Heidi Cook et al. v. The Government of Manitoba et al.1 (“Decision”), breaking new constitutional ground in the evolving jurisprudence surrounding Indigenous self-government under section 35 of the Constitution Act 19822 (“Section 35”).
In Reference re An Act respecting First Nations Inuit and Métis children, youth, families3 the Supreme Court of Canada (“SCC”) acknowledged the urgent need for comprehensive reform to address the persistent and systematic overrepresentation of Indigenous children in care.4 Throughout the Reference, the SCC emphasized the importance of maintaining Indigenous children’s connections to their families, communities, cultures, and languages. At the same time, the SCC stopped short of definitively recognizing a broad constitutional right to Indigenous self-government in the area of child and family services (“CFS”).
The Decision builds upon the framework established in the Reference by moving beyond constitutional recognition, toward constitutional enforcement. Rather than treating the removal of First Nation children primarily as a social policy failure, the Manitoba Court framed the issue as one of Indigenous jurisdiction and governance authority in the area of CFS. In doing so, the Decision signals an important shift in the Section 35 jurisprudence: one that increasingly recognizes Indigenous Peoples not merely as holders of cultural practices, but as self-governing Nations with constitutional authority over matters central to their collective survival.
On the record before it, the Court was satisfied the First Nations had plead sufficient facts to support a prima facie infringement of a Section 35 right to self-government in the area of child and family services.5
THE PLAINTIFFS & THEIR POSITION
The Plaintiffs are the Assembly of Manitoba Chiefs together with the Chiefs of Misipawistik Cree Nation, Black River First Nation, And Pimicikamak Cree Nation.6 Collectively, they sought certification of a class action proceeding and summary judgement for the harms suffered between 1992 and present-day as a result of the separation of First Nation children from their lands and communities through Manitoba’s CFS system.7
Throughout this period, Canada received repeated warnings – not only from First Nations, but from its own experts – that existing funding and operational structures within the CFS system created perverse incentives to unnecessarily remove First Nation children from their families and communities.8 It is the position of the First Nations that the manner in which the federal and provincial governments designed, funded, and administered CFS in Manitoba, disregarded First Nations’ cultures, languages and legal traditions, thereby undermining the ability of First Nations to transmit them to future generations.9
REFRAMING THE RIGHT: FROM CULTURAL CONTINUITY TO SELF-GOVERNMENT
One of the most interesting aspects of the Decision lies in how the Manitoba Court reframed the First Nations Section 35 claim. Initially, the First Nations characterized the right at issue as an Aboriginal Right to raise First Nation children within their cultures and communities, with meaningful connections to their lands, languages, and spiritual traditions.10
However, framing the issue in this manner created doctrinal difficulty. Unlike many Charter rights, which focus primarily on individuals and the exercise of rights by individuals, Aboriginal Rights under Section 35 are generally understood as collective rights belonging to Indigenous communities as a whole.11 While often exercised by individuals, Section 35 rights derive their constitutional character from the collective practices, governance structures, and identities inherent to Indigenous Nations and Peoples.
Put differently, if the claim remained framed as ‘children have a right to be raised in their culture’, it risked presenting as individualized and aspirational, rather than constitutional in nature. Instead, the Manitoba Court saw the central issue as a broader question of governance: who holds authority over the design, administration, and operation of CFS affecting Manitoban First Nations? In other words, how else but through self-governing authority in the area of CSF, could First Nations raise their children in their culture and community, with a connection to their land, immersed in their languages and spiritual traditions?12
By reframing the claim as a Section 35 right to self-government in the area of CFS, the Court transformed the issue into a structurally constitutional claim, thereby increasing legal stability and justiciability. The Court emphasized the difficulty in conceiving how First Nations would meaningfully preserve their cultures, languages, and traditions for generations to come, without possessing jurisdictional authority over the systems responsible for raising and caring for their children.13
THE RECOGNITION OF SELF-GOVERNMENT IN CHILD WELFARE
Central to the plaintiffs’ claim was the assertion that First Nations collectively share a child-centric worldview premised on the recognition that the physical, emotional, and spiritual wellbeing of First Nation children is at the heart of healthy families and communities.14 Through this lens, the relationship between First Nation children, their families, and communities is interrelated – “the latter cannot exist without the former.”15
The plaintiffs did not argue individually the way they exercised responsibility to care for their children. Rather, they assert that First Nations have, since time immemorial, exercised communal systems of childcare and governance grounded in their own legal orders, traditions, and cultural practices. Integral to continuing this practice, is the authority to deliver childcare in a way which upholds the importance of First Nation children growing up as First Nation children.16
The Court accepted that the ability to exercise these governance structures and legal traditions was neither ceded nor surrendered, despite the Crown’s imposition of colonial childcare upon them.17
Importantly, the Decision does not suggest that either level of government lacks a legitimate interest in the welfare of First Nation children; the protection and wellbeing of all children must remain a pressing and substantial legislative objective.18 However, the Court recognized governmental involvement became problematic when the design and administration of CFS prevented First Nations from maintaining their own systems of cultural transmission, governance, and community continuity. In other words, the Governments erred when they failed to treat First Nations as equally interested parties.19
VAN DER PEET AND THE EVOLUTION OF SECTION 35 JURISPRUDENCE
Another significant aspect of the Decision is its relationship to the framework for establishing Aboriginal Rights as articulated in R v Van der Peet20 (“Van der Peet test”).
The Manitoba Court observed that the right claimed by First Nations was fundamentally different in nature from the types of rights for which the Van der Peet test was originally formulated.21 Traditionally, the Van der Peet test conceptualizes Section 35 rights as activity-based rights grounded in practices, customs, or traditions that were integral to the distinctive culture of the Indigenous group prior to European contact.22 As a result, Courts often characterize Section 35 rights narrowly – for example, as rights to fish, hunt, or harvest.
Governance-based claims, however, fit awkwardly within this framework. A strict application of the Van der Peet test risks ‘freezing’ Indigenous cultures in the past, by putting heavy emphasis on the pre-contact period. In turn, Indigenous self-government is reduced to historical practices, rather than recognizing them as present-day jurisdictional or institutional authorities.
The Court explicitly acknowledged this difficulty, noting that a rigid application of the Van der Peet test may have required additional pleadings or factual specificity from the plaintiffs.23 To reconcile these tensions, the Court pointed to signals from the SCC in cases such as Delgamuukw v. British Columbia24 and R. v. Powley25 suggesting that the Van der Peet framework itself may require modification depending on the nature of the right being asserted.26
This aspect of the Decision reflects a broader tension emerging within Section 35 jurisprudence: while courts continue to operate within the analytical structure established by Van der Peet, they are increasingly confronted with claims that cannot easily be reduced to historic activities or practices. Indigenous self-government claims, particularly in areas such as child welfare, necessarily implicate modern recognition of governance authority, institutional structures, and legal systems.
The Decision therefore illustrates an important doctrinal evolution. While remaining formally consistent with Van der Peet’s requirements, the Decision demonstrates the growing pressure that Section 35 self-government claims place upon traditional Aboriginal Rights analysis.
LOOKING AHEAD
The constitutional implications of the Decision have the potential to extend far beyond child welfare. By accepting that Indigenous jurisdiction in the area of CFS is constitutionally protected and judicially enforceable, the Manitoba Court sets precedent for potential similar arguments regarding education, health system, justice systems, and more.
Although many doctrinal questions remain unresolved, particularly regarding the future application of the Van der Peet test, the Decision moves Indigenous self-government jurisprudence into new constitutional territory. In doing so, it signals a growing judicial willingness to understand Section 35, not only as a shield protecting Indigenous practices, but as the foundation for the articulation of Indigenous legal orders within Canadian law.