THUNDER BAY — A court has issued a decisive ruling in a longstanding jurisdictional dispute between two Indigenous child welfare agencies in Northwestern Ontario.
Even the mediation of former Senator Murray Sinclair had failed to settle the dispute that dates back to 2000.
At issue before the Divisional Court was an Ontario government decision two years ago that allowed Tikinagan Child and Family Services to provide child protection services in Thunder Bay.
A panel of three justices has now dismissed an application by Dilico Anishinabek Family Care to quash that decision.
In November 2019, in an effort to resolve what the judges referred to as "an intractable dispute," the Ontario Ministry of Children, Community and Social Services issued a directive giving Tikinagan jurisdiction over services for people from its member communities who are living in the Thunder Bay area.
Dilico was to retain jurisdiction for its 13 affiliated First Nations and for all other Indigenous people in the area.
Previously, Tikinagan was authorized by the province to deliver prevention services in Thunder Bay, including the operation of foster homes for children from its 30 affiliated First Nations (all are part of Nishnawbe Aski Nation), but could not exercise child protection powers such as apprehension and related powers.
In explaining its new directive, the Ontario government took the position that First Nations should be able to provide services to their own children wherever possible, and suggested that Dilico is not equipped to meet the unique cultural needs of children from Tikinagan First Nations.
The Chiefs Committee for Tikinagan Area First Nations supported the expansion of Tikinagan's jurisdiction, saying they had "no voice" at Dilico.
They pointed to communications issues between Dilico and Tikinagan-affiliated First Nations, and the lack of a Dilico presence in their communities.
The Chiefs contrasted this with Tikinagan's physical presence in each community, the trust relationship it has established, and its use of trained workers who support the distinctive values and customs of Tikinagan.
Dilico, however, argued that expanding Tikinagan's authority in the Thunder Bay area would violate the inherent, Aboriginal and Treaty rights of Fort William First Nation and other Robinson-Superior Treaty First Nations.
It also maintained that designating two Indigenous children's aid societies in the same geographic area would cause confusion and raise the risks to Indigenous children.
Dilico, supported by Fort William Chief Peter Collins, alleged as well that Tikinagan had failed to provide adequate services to its clients both in and outside of Thunder Bay.
It said the government's decision was unreasonable and that it had been denied procedural fairness.
In dismissing Dilico's application, the judges ruled that the province had acted within the law, had given notice to affected parties, had consulted broadly and had explained its rationale to to stakeholders.
Dilico and Fort William First Nation also failed in 2020 to have the government's directive stayed pending their Divisional Court application.
More recently, the agencies involved in this dispute were able to reach a deal out of court on how to handle situations where they disagree over which should have jurisdiction in a particular case.
The province initially designated the Thunder Bay Children's Aid Society as the default agency.
Tikinagan announced that the parties have reached a resolution under which Dilico will be the default organization in the event of a dispute in certain cases.
The province has amended the ministerial order to reflect this.
