SCC Upholds Indigenous Jurisdiction in Reference re An Act Respecting First Nations, Inuit and Métis Children, Youth and Families (Part 1 of 2)

Today the Supreme Court of Canada (SCC) issued its long-awaited decision on the constitutionality of Canada’s An Act respecting First Nations, Inuit and Métis children, youth, and families.^[1]An Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24. [Act] The SCC upheld the Act as constitutional, finding that its purpose and effect is to protect the well-being of Indigenous^[2]Indigenous includes “Aboriginal” (First Nation, Inuit and Métis) peoples in Canada. children, youth and families – a matter that falls within Parliament’s authority to legislate. In upholding the Act, the SCC has sent a clear signal that Crown governments can promote reconciliation through legislation and, in so doing, can affirm inherent rights to self-government and provide for the recognition of Indigenous laws and jurisdiction.

The Act and Why It Was Passed

As multiple studies and court cases have affirmed, Indigenous children in Canada are severely overrepresented in the child welfare system – a consequence of hundreds of years of racist and assimilative policies, structural discrimination and poverty (including in the area of child and family services),^[3]See, for example: Canada, Truth and Reconciliation Commission, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada … Continue reading and the enduring legacy of residential schools. Despite that overrepresentation, until very recently, there was no express legislative route through which Indigenous communities could implement and operate their own, culturally responsive child welfare systems.

The Act – which has been in effect since 2020 – represents the first time the federal government has legislated in the area of Indigenous child and family services. The Act was passed after the Truth and Reconciliation Commission of Canada issued five Calls to Action specifically on child and family services, ^[4]Notably, the Truth and Reconciliation Commission’s Call to Action #4 specifically calls upon the federal government to enact Indigenous child-welfare legislation that establishes national standards … Continue reading and after the Canadian Human Rights Tribunal found that Canada has been discriminating against First Nations children on-reserve through its First Nations Child and Family Services Program. It was also passed as part of the Canadian government’s commitment to the implementation of the United Nations Declaration on the Rights of Indigenous People (UNDRIP ).

The Act is intended to help reduce the number of Indigenous children in foster care and improve the delivery of child and family services to Indigenous children across Canada. It:

1. affirms Indigenous people’s inherent right to self-government over child and family services;^[5]Act, supra note 1 at s. 18.
2. creates national minimum standards that must be met across the country whenever child and family services are being provided to Indigenous children and families;^[6]Ibid at ss. 10-17. and
3. establishes a process for recognition and implementation of Indigenous jurisdiction over child and family services, including a pathway enabling an Indigenous law to take precedence over conflicting provisions of provincial laws and of most federal laws.^[7]Ibid, at ss. 18-24. This pathway involves negotiating a “coordination agreement” with the federal and relevant provincial governments.

Since the Act came into force, First Nations have undertaken the process of enacting their own child welfare laws, and seven Indigenous governing bodies representing a number of First Nations have now entered into coordination agreements with provincial and federal governments .

Quebec Court of Appeal Reference

Following the passage of the Act, the Attorney General of Quebec asked the Quebec Court of Appeal (QCCA) to strike the Act down. It argued that Canada does not have jurisdiction under the Constitution Act, 1867 to pass the Act as it goes beyond Canada’s power to legislate over “Indians and lands reserved for Indians” by:

• Interfering with the provincial public service by dictating how child and family services are delivered; and
• Unlawfully changing the structure of the Constitution by introducing a third order of government – Indigenous government – to Canada’s constitutional landscape.

The QCCA allowed the appeal in part, by holding that the Act was constitutional except for the sections – 21 and 22(3) – that give Indigenous laws on child and family services the force of federal law and make those law paramount over provincial laws.^[8]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. In respect of these two sections, the QCCA accepted Quebec’s argument that these sections impermissibly alter Canada’s constitutional structure.

While it struck those two sections down, the QCCA recognized that Indigenous people have an inherent right of self-government entrenched in section 35 of the Constitution Act, 1982, that includes, at the very least, the right to regulate child and family services.

Appeal to the SCC

Quebec appealed all parts of the QCCA’s decision to the SCC, arguing that several provisions of the Act are outside (ultra vires) the Parliament’s legislative authority, and if operational, serve to unlawfully amend the Constitution of Canada.^[9]Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 at paras 36, 104. Quebec also argued that affirming a general right of self-government could not happen without a constitutional amendment.^[10]Ibid, at para 104.

Canada appealed the QCCA’s finding that sections 21 and 22(3) are unconstitutional, arguing that the federal government has the authority legislate on matters related to the well-being of Indigenous children, families, and communities, which is the purpose and effect of the Act.^[11]Ibid, at para 36. Canada also argued that the right of self-government in relation to child services is a “generic” Aboriginal right recognized by section 35 of the Constitution Act, 1982 and affirming such a right is within the scope of federal authority.^[12]Ibid, at para 112.

The Supreme Court heard the parties’ arguments on December 7 and 8, 2022 along with nearly 40 interveners representing provinces, Indigenous Nations, and other groups. The interveners included Grand Council Treaty #3, represented by JFK Law’s Robert Janes, KC, and Aseniwuche Winewak Nation, represented by JFK Law’s Claire Truesdale.

Supreme Court of Canada’s Decision

The Supreme Court dismissed Quebec’s appeal, finding that the Act as a whole is constitutional.^[13]Ibid, at para 2.

Finding that the Act is Really about Protecting Indigenous Children, Youth and Families

The first step in determining the constitutional validity of a law is the identification of the law’s “pith and substance” – what the law is really about – by looking at its purpose and effects.

Applying that analysis, the SCC found that the Act’s pith and substance is to “protect the well‑being of Indigenous children, youth and families by promoting the delivery of culturally appropriate child and family services and, in so doing, to advance the process of reconciliation with Indigenous peoples”.^[14]Ibid, at para 92. It does so by:

• Affirming Indigenous communities’ jurisdiction in relation to child and family services;
• Establishing national standards applicable across Canada; and
• Implementing aspects of UNDRIP in Canadian law.^[15]Ibid, at para 91.

Based on this characterization, the Court classified the Act as falling squarely within Parliament’s powers under s. 91(24) of the Constitution Act, 1987 to regulate in relation to “Indianness”.^[16]Ibid, at paras 2, 94.

In its analysis on this point, the court recognized the purpose of the legislation includes filling gaps in child and family services schemes and avoiding the delays of prolonged litigation to establish a right to self-government, agreeing with the submissions on these points by Aseniwuche Winewak Nation, represented by JFK Law.^[17]Ibid, at paras 44, 77.

Rejection of Quebec’s Arguments that Act Alters Constitution

The SCC also specifically rejected Quebec’s arguments that the Act alters Canada’s legislative landscape, finding instead that the mechanisms set out in the Act all fell within federal power.^[18]Ibid, at para 120. It held that Parliament has the authority to:

• Pass legislation that contains binding affirmations on the Crown with respect to its position on the meaning of Constitutional provisions – in this case, the right to self-government.^[19]Ibid, at paras 17-18.
• Implement a scheme whereby Indigenous laws are incorporated into federal law and are paramount to (i.e., override conflicting) provincial laws.^[20]Ibid, at paras 131-133.

In addressing the second point the court essentially agreed with the submissions of the Grand Council Treaty #3, represented by JFK Law.

The court also emphasized that this legislation was developed in collaboration with Indigenous peoples,^[21]Ibid, at paras 20, 88, 134. reinforcing that this collaboration should be part of any legislative implementation of Indigenous rights and laws (as is required by UNDRIP article 38 and s. 5 of the UNDRIP Act with respect to implementation of UNDRIP).

This aspect of the Court’s decision has significant implications for what Parliament and provincial legislatures may do in the future to recognize and operationalize other aspects of self-government through legislation. More discussion on the implications of legislative reconciliation will follow in our second blog post on this case.

Declining to Recognize Inherent Right of Self-Government

The Court declined to determine the question – advanced by Canada and many of the interveners – of whether s. 35(1) protects the inherent right of self-government, finding that it was unnecessary to do so given its holding that the Act was passed pursuant to federal authority.

The court did find that the federal government was bound by its statement in the law that a right to self-government over child and family services is recognized and affirmed by section 35, and the federal government must take a broad approach to that right and act diligently to implement it.^[22]Ibid, at paras 62, 66. The courts and the provinces however, are not required to agree with the federal government’s view that this right is protected by section 35.^[23] Ibid, at para 60.

UNDRIP

In finding that the Act was valid, the Court also made a number of important findings regarding the role of UNDRIP in Canadian law, which the Court recognized has now been specifically incorporated into Canada’s positive law. ^[24]Ibid, at para 4. The Court relied heavily on UNDRIP to interpret the purpose and effects of the Act – a major change from previous judicial approaches to UNDRIP in Canada. This is a positive development for the judicial application of UNDRIP.

Conclusion

This decision marks a major – and positive – step in the evolution of Canadian law’s treatment of Indigenous laws and legal orders. On an immediate level, it is a hugely important decision for Indigenous communities across the country working to implement their own child and family welfare services and for the Indigenous children and families who interact with child and family services. More broadly, it also has important implications for how Parliament can promote “legislative reconciliation” through the passage of laws that affirm Aboriginal and Treaty rights ^[25]Ibid, at paras 17-18. and that incorporate Indigenous laws and legal orders. That said, to the court does not directly decide whether s. 35(1) affirms an inherent right to self-government as it determines that is not necessary to decide this case. It’s reasoning in this decision, however, sent strong signals that there is a strong basis for such a right. We will review the broader implications of the decision in a further blog post next week.