On May 11, 2026, the Manitoba Court of King’s Bench released an important class action decision on the provision of child and family services (CFS) to First Nations in Manitoba. The case, [1], was initiated by three First Nation Chiefs on behalf of each of their First Nations (Chief Cook of Misipawistik Cree First Nation, Chief Kent of Black River First Nation, Chief Monias of Pimicikamak Cree First Nation) and the Assembly of Manitoba Chiefs. The claim was brought against the federal and Manitoba governments.
The Decision considered complex questions related to the relationship between CFS, section 35 Aboriginal rights, and rights protected by the Canadian Charter of Rights and Freedoms. Ultimately, the Court rejected the Charter claims but found that the First Nations’ Aboriginal right to self-government over CFS was breached by the federal and Manitoba governments in their implementation of the CFS system. The Court issued a declaration recognizing the existence of the right and its breach. However, the Court found that it could not award damages (money), as the harm happened too long ago and was barred by The Limitations Act of Manitoba.
The claim was brought as a class action, which allows a single claimant to represent all members of a particular group. The proposed class includes all First Nations in Manitoba who choose to opt-in to the claim, and relates to the period from January 1st, 1992 onwards.[2] The First Nation Plaintiffs also sought summary judgment on the claims, which is a mechanism allowing the court to make a decision without a full trial. The Court was asked to answer the following questions related to the Charter and Aboriginal rights claims brought by the First Nation Plaintiffs:
- Do the claims have a chance to succeed (should the judge certify the claims for the class action)?
- Should the Court issue a summary judgment for the certified claims?
The Decision
The First Nation Plaintiffs claimed that the provincial and federal governments’ implementation of the CFS system:
- Breached the honour of the Crown and the Crown’s fiduciary duty;
- Was negligent;
- Breached sections 35 and 36 of the Constitution Act, 1982; and
- Breached the section 2(a) and 15(1) Charter rights of the First Nation Plaintiffs.
This blog focuses on the Court’s holdings on Charter rights and section 35 Aboriginal rights. Briefly, the Court’s holdings on the private law claims are as follows:
Fiduciary duty
The Court declined to certify the plaintiffs’ fiduciary claim for not having a chance to succeed. It held that the provision of CFS is not the sort of action that can attract private law fiduciary duties, as the Crown defendants were discharging their legislative functions and not acting in a private manner. Writing on the alleged ad hoc duties specifically, the Court could not see how the defendants could act in the best interest of a child while also acting solely in the best interests of the benefactor First Nations, as would be required in the context of a fiduciary duty.
Negligence
The Court declined to certify the plaintiffs’ negligence claim after following precedent from the SCC. In Syl Apps, the Court stated that “…governments do not owe a duty of care to prioritize or consider a third-party interest in the context of child welfare matters where the overarching priority is the best interests of the child”.[3] A finding of a duty of care is a strict requirement in any negligence claim, and so the plaintiffs’ had no chance of success for this claim.
Charter Rights Claims – Rejected
The Court found that neither of the section 2(a) nor 15(1) claims had a chance of success and declined to certify them.
Section 2(a) of the Charter protects freedom of religion. The First Nation Plaintiffs argued that by removing First Nations children from their communities, the provincial and federal governments were denying the right of the First Nations to pass down their religions to their children through communal ceremonies, a “foundational aspect of First Nations’ spiritual practices, and a collective right”.[4] The Plaintiffs argued this impacted not just individual First Nations people, but the survival of the First Nation as a whole.[5]
The First Nation Plaintiffs brought their claims on behalf of the First Nations themselves, not their individual members. The Court rejected the section 2(a) claim on the grounds that Charter rights are rights of an individual against the state, not a right of a collective against the state.
This claim suffered a similar fate. The plaintiffs argued that the Court should follow the Canadian Human Rights Tribunal’s holding in the First Nations Child and Family Caring Society of Canada decision, where the provision of CFS by the government of Canada perpetuated historical disadvantages endured by Aboriginal peoples, breaching their s. 15(1) rights.
Instead, the Court chose to follow a ‘consistent body of law’ stating that only individuals can bring equality right claims.[6] While there are some decisions supporting the possibility of collectives, like First Nations, bringing s. 15(1) claims on behalf of their members, this, the Court states, does not give the First Nation entities s. 15(1) rights themselves.[7]
Aboriginal Rights Claim – Accepted
The Court accepted the s. 35 claim for certification, and proceeded to analyse infringement (the violation of the right).
An Aboriginal rights claim contains three components:
- the Court determines what the alleged right is, and whether it exists;
- the Court determines whether the defendant(s)’ conduct infringed the Aboriginal right, and;
- the Court determines whether the defendant(s)’ actions were justified.
1. What is the right being claimed, and does it exist?
The Court described the claimed right as a right to self-government in the area of CFS[8] and found that it does exist. It did so by looking at the evidence brought by the First Nation Plaintiffs, which was not specific to any one First Nation, but instead meant to establish a right held by all First Nations.
The existence of an Aboriginal right is (usually) determined by applying the test in R v. Van der Peet, which requires that an Aboriginal right be based on a practice that is “integral to the distinctive culture” of the Indigenous people claiming the right.[9]
The Court decided to depart from this test, after reviewing the evolution of case law since Van der Peet, and noting other Courts’ departures from the test.[10] The Court explained that the test was originally created to determine ‘discrete, particularized rights’, such as fishing and hunting rights, and that it was not a fitting test for a broader self-government right. [11] This is an important recognition, because if the Court chose to use the Van der Peet test, the First Nation Plaintiffs would need evidence of specific practices that were of central significance to their individual ancestral communities prior to European contact. As a result, the evidence supplied by the two Cree Nations (Misipawistik and Pimicikamak) would be inapplicable to the Anishinaabe Nation (Black River). Each Indigenous people would have to separately establish a right to self-government over CFS.
The Court instead chose to endorse and adopt the following two-stage test used by the Quebec Court of Appeal in the 2022
(i) Does the claimed right to self-government in a particular area relate to the cultural security and continuity (the cultural survival) of the Indigenous peoples claiming the right.
(ii) Did the government explicitly ‘extinguish’ (end) the right through legislation before Aboriginal rights were constitutionally protected in 1982, or does the right challenge the idea that the Crown governments are supreme within Canada (the ‘assertion of Crown sovereignty’).[13]
i. Cultural security and continuity
The Court found that the first stage of the new approach was satisfied by the extensive evidence presented on the importance of raising children within First Nations communities, including their ability to live Mino-bimaadziwin (Anishinaabemowin for the ‘the good life’, a central tenant of Anishinaabe religion) and the importance of a child’s participation in land-based practices.[14]
Overall, the evidence led the Court to agree with the Quebec Court of Appeal that self-government in the area of CFS is “…intimately tied – if not essential – to the cultural continuity and survival of Aboriginal peoples as distinct peoples…”[15]
ii. Extinguishment, or Incompatibility with Crown sovereignty
At the second stage of the new test, the Court found no extinguishment and no incompatibility with Crown sovereignty. The Court quoted extensively from the Quebec Court of Appeal decision in the C-92 reference and fully adopted their position. That Court begins with restating the well-established principle of Aboriginal law that heavy regulation of a right does not extinguish it. Only clear government intent can extinguish a right.[16] The Court noted that, not only has there been no intent to extinguish, there has been recognition of the existence of the right of self-government over CFS by both defendants.[17]
Next, the Court held that the right was not incompatible with Crown sovereignty. Incompatibility with Crown sovereignty requires more than minor inconveniences, like the genuine challenge that would be posed to Canada by a claimed Aboriginal right to a community’s own military.[18] By comparison, an Aboriginal right to self-government in CFS is not an ‘existential threat’ to Canada to recognize.[19]
2. Infringement
The Court found the plaintiffs’ right was infringed. To establish infringement, a plaintiff must show evidence that the defendant acted in a way that interfered with their section 35 right to the degree of “meaningful diminution” – a ‘fairly low’ bar.[20]
Reviewing extensive witness and expert testimony, the Court found that the Crown Defendants’ system disproportionately focused on removing First Nations children from their homes over providing family support services and other preventative measures. The system was unreasonable in its funding, regulation, and provision, and its impact imposed significant, sustained, and undue hardship on First Nations and their members.[21]
Lastly, it was clear to the Court that the governments’ CFS system denied the First Nation Plaintiffs their preferred way of exercising their right to self-government in the area, as the system completely replaced any Indigenous form of CFS. The Crown Defendants’ actions prevented the First Nation Plaintiffs from safeguarding their own cultural continuity and survival and thus infringed their section 35 right.[22]
3. Justification
The Court found the infringement was not justified. At the first stage of the justification test, the government(s) must establish that they had a ‘compelling and substantial’ goal. Then, they must show that their actions were consistent with two legal concepts: the honour of the Crown, and the Crown’s ‘fiduciary relationship’ with Aboriginal peoples.[23] At this second stage, a Court will ‘always’ consider the governments’ duty to consult and accommodate the Aboriginal rights holder[24] and the proportionality of the governments’ conduct on the plaintiff’s right – both part of the honour of the Crown.[25]
On the first stage, the Court found that the governments’ CFS program had a compelling and substantial goal, a point which was admitted by the First Nation Plaintiffs.[26]
The Crown Defendants failed the second stage by not providing evidence of sufficient consultation and accommodation with Manitoba First Nations.[27] While there were some consultation efforts made by both Crown Defendants, they lacked a meaningful attempt to accommodate, and were therefore insufficient.[28] Accordingly, the Crown Defendants’ actions could not be justified, and the Court sided with the First Nation Plaintiffs, granting them declaratory relief.
While this blog post focuses on the legal impacts of the Decision, we cannot forget what the recognition of the right to self-government over CFS, and that it has been breached, means to the First Nations Plaintiffs. In her own words, Chief Cook stated “…we fought this case because our rights continued to be neglected and our children continued to be taken away. I feel overwhelmed by the court’s recognition that the damage to our nations is real, that it is unjust, and that it cannot continue”.[29] Importantly, the First Nations Plaintiffs do not see this decision as the end of efforts to fix CFS in Manitoba. Rather, they ask the Crown Defendants to work together with Manitoba First Nations to implement ‘real solutions’ to the child welfare crisis.[30]
Broader Legal Impact
2026 marks 30 years since the Van der Peet decision, and so it is important to consider the test’s utility and shortcomings. By choosing not to rigidly apply the Van der Peet test, the Court recognized important changes in the field of Aboriginal law since the Van der Peet decision was penned, such as the United Nations Declaration on the Rights of Indigenous Peoples, the Truth and Reconciliation Commission, and the National Inquiry into Missing and Murdered Indigenous Women and Girls.
Endorsing the C-92 reference test recognizes that First Nations are living, evolving communities that respond to changing realities. It allows them to focus on what matters today, rather than forcing them to tie modern governance to practices from the time of European contact. This approach is likely to shape future legal developments and could lead to a broader recognition of self‑government rights.
Equally important, the rejection of a strict Van der Peet application led to the recognition of the First Nation Plaintiffs right to self-government in the area of CFS, and of the Crown Defendants’ ‘serial’ breaches of that right. While the Court did not grant any damages (money) the Court’s declaration can guide all parties in future negotiations and shape Crown conduct.
However, the Court’s holding that the First Nation Plaintiffs, as collectives, do not have standing to bring Charter claims, is concerning. This decision, if upheld and followed in future case law, may limit the tools available for First Nations to protect communal aspects of their lives, like religion and culture. It could seriously impact the ability of Indigenous groups as collectives to seek remedies for violations of their rights beyond s. 35 of the Constitution.
Cameron Smith is a Summer Student in the JFK LLP Vancouver office, and a J.D. Student at Jackman Law at the University of Toronto, where he is Co-President of the Indigenous Law Students Association. He is Anishinaabe from Treaty 5, and a member of Hollow Water First Nation.
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[1] 2026 MBKB 65 [the “Decision”].
[2] Cook at para 69
[3] Cook at para 591, citing Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38
[4] Cook at para 411
[5] Cook at para 413
[6] Cook at para 446
[7] Cook at para 446
[8] Cook at para 461
[9] Cook at paras 656-657
[10] Cook at paras 651-652.
[11] Cook at para 682
[12] Cook at para 655, citing Renvoi à la Cour d’appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis, 2022 QCCA 185 (CanLII)
[13] Cook at para 677
[14] Cook at para 700
[15] Cook at para 701
[16] Cook at para 702
[17] Cook at para 703
[18] Cook at para 702
[19] Cook at para 702
[20] Cook at para 708
[21] Cook at para 709
[22] Cook at paras 709, 719, 749
[23] Cook at para 752
[24] Cook at para 754
[25] Cook at para 759
[26] Cook at para 765
[27] Cook at para 772
[28] Cook at para 780
[29] Assembly of Manitoba Chiefs, Press Release, “Court Finds That Canada and Manitoba Created a Crisis by Trampling First Nations’ Right to Govern Their Own Child Welfare” (May 13, 2026) online: https://manitobachiefs.com/press_releases/court-finds-that-canada-and-manitoba-created-a-crisis-by-trampling-first-nations-right-to-govern-their-own-child-welfare/ (AMC Press Release)
[30] AMC Press Release