This decision deals with the constitutional validity of federal legislation regarding Indigenous jurisdiction over child and family services.
Background
In 2019, Parliament enacted An Act respecting First Nations, Inuit and Métis children, youth and families (also known as Bill C-92). The Act establishes national standards for the provision of child and family services to Indigenous children and affirms the inherent right of Indigenous Peoples to make laws regarding child and family services as part of the Aboriginal right of self-government affirmed by section 35 of the Constitution Act, 1982. The Act also provides that such laws “have the force of law as federal law” (section 21) and have priority over other federal or provincial law to the extent of a conflict (subsection 22(3)), if the Indigenous government exercising jurisdiction takes steps to notify and attempt to coordinate with the federal and provincial governments regarding the exercise of jurisdiction over child and family services.
Photo credit: Doane Gregory
Issues
The Government of Quebec referred to the Quebec Court of Appeal the question of whether the Act is unconstitutional as beyond the legislative authority of the federal government because child welfare matters are provincial jurisdiction. That court held the Act to be constitutional under the federal government’s jurisdiction over “Indians,” except for section 21 and subsection 22(3), which would give Indigenous child welfare laws the force of federal law and priority over other federal and provincial law. The court also held that all Indigenous Peoples of Canada have a “generic” right of self-government to regulate child and family services, which right is recognized and affirmed by section 35 of the Constitution Act, 1982. This was the first time a court had recognized a generic right of self-government under section 35, as opposed to a right held by a specific Indigenous community based on its practices or traditions.
Photo credit: Gordon Lyall
Analysis
The Attorney General of Quebec appealed and the Attorney General of Canada cross-appealed the decision of the Quebec Court of Appeal to the Supreme Court of Canada. In a unanimous judgment issued on February 9, 2024, the Court allowed the appeal, holding that the Act is constitutional as within Parliament’s jurisdiction over “Indians” under subsection 91(24) of the Constitution Act, 1867.
The Court held that section 18 of the Act, which affirms that section 35 of the Constitution Act, 1982 includes jurisdiction in relation to child and family services, binds the federal government, meaning it prevents the government from denying the existence of an Indigenous right of self‑government in relation to child and family services and commits the government to “take a broad approach to the interpretation of this right” and to act diligently to implement the right. This is because the federal government has committed itself in legislation to conduct itself as though there is a right of self-government in relation to child and family services and not because of a court acknowledgement that such a right is an existing Aboriginal or inherent right. The Court held the Act does not affirm or create an Aboriginal right to govern child and family services. Unlike the Quebec Court of Appeal, the Supreme Court declined to decide whether section 35 of the Constitution Act, 1982 includes such a right, leaving that question for another day.
The Court held that section 21 of the Act incorporates an Indigenous child welfare law made by an Indigenous group in accordance with the Act into federal law. The Court held that subsection 22(3) of the Act, which provides that an Indigenous child welfare law made by an Indigenous group in accordance with the Act prevails over other federal and provincial laws to the extent of a conflict, is simply a restatement of the legal doctrine of federal paramountcy. The Court observed, however, that it is ultimately for the courts to resolve any conflict between an Indigenous child welfare law and provincial law.
Key Takeaways
By upholding the Act, this decision affirms the jurisdiction of Indigenous Peoples to make laws in relation to children and families of their communities under the Act. This is an important victory for Indigenous Peoples. The decision left for another day the question of whether section 35 of the Constitution Act, 1982 includes an inherent right of self-government in relation to children and families. Accordingly, an Indigenous government’s laws made under the Act has the force of law as federal law, and not under the inherent jurisdiction of the Indigenous government.
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