“[Reconciliation] will not be accomplished in a single sacred moment, but rather through a continuous transformation of relationships and a braiding together of distinct legal traditions and sources of power that exist.”[i]
This is the second blog post of JFK Law’s two-part series on the recent Supreme Court of Canada (SCC) decision upholding the constitutionality of Canada’s An Act respecting First Nations, Inuit, and Metis children, youth, and families (Act). Our previous post summarized the facts and procedural history of the reference decision as well as the Court’s reasons. This post discusses some of the implications and unanswered questions arising from the decision, both in the specific arena of child and family welfare and for Indigenous law-making more generally.
A. The Decision in a Nutshell: Indigenous Jurisdiction Upheld, but Only as Incorporated into Federal Law
To understand the implications of the SCC’s decision, it is important to be clear on what the Court did and did not do. As set out in more detail within our previous post, the SCC:
1.Recognized that federal jurisdiction can be used to recognize and implement Indigenous laws. The Court held that the Act is constitutional because it falls properly within Canada’s exclusive jurisdiction over “Indians and lands reserved for Indians” pursuant to section 91(24) of the Constitution Act, 1867.[ii] In reaching that conclusion, the Court also held that:
a. Canada has the jurisdiction to enact national standards that provide an immediate framework for child and family services across the country that are culturally appropriate, whether or not an Indigenous nation or group has implemented its own law.[iii]
b. Federal jurisdiction is also broad enough to recognize and support the implementation of a right to Indigenous self-government over child and family services under section 35 of the Constitution Act, 1982, and that the federal government is bound to this affirmation of the right. As long as the Act is in place, the federal Crown cannot dispute that this right exists. [1][iv] Contrary to the position of the Attorney General of Quebec, this affirmation does not amend the Constitution.[v]
c. Canada has the jurisdiction to incorporate by reference an Indigenous law into Canadian federal law.[vi] Canada may also explain its understanding of the legal effect of such an incorporation. In the specific context of the Reference before the Court, this means that an Indigenous child and family law, incorporated as a federal law, prevails over (rules over) a provincial law if the laws conflict (a concept known as “paramountcy” of federal laws).[vii] Further, there is nothing unconstitutional about facilitating implementation of Indigenous laws in this way.[viii]
2. Did not recognize Indigenous jurisdiction as constitutionally protected. The Court did not decide whether Indigenous self-government over child and family welfare is an Aboriginal right recognized under section 35 of the Constitution. The SCC found that Indigenous jurisdiction can be recognized and empowered by federal law, but did not decide whether section 35 protects Indigenous self-government as a constitutional right. The Court determined it was not necessary to decide this question in this particular case, leaving it an open question.
3. Did not address the application of the Charter. Additionally, the SCC decision does not address whether and how the Charter of Rights and Freedoms applies to Indigenous laws and governing bodies (which the Quebec Court of Appeal did discuss).[ix] We will have to wait until the SCC issues its decision in the appeal from Dickson v. Vuntut Gwitchin First Nation,[x] which was heard in 2023, to learn the Court’s position on this issue.
B. Implications for Indigenous Child and Family Services: Indigenous Laws and Control Confirmed
The SCC’s decision has major implications for Indigenous children and family services, including the following:
- It removes any doubt that may have existed about the constitutionality of the national standards set out at ss. 10-17 of the Act. These are valid and must be applied by all child and family services providers and decision-makers, including judges, when working with or making a decision about an Indigenous child.[xi] These standards include specific factors that must be taken into account when determining the best interests of an Indigenous child.[xii] They also include the right of the child’s parent, care provider, and Indigenous governing body to receive notice of any “significant measures” being taken in relation to the child[xiii] and to make representations in court proceedings regarding the provision of child and family services to the child.[xiv]
- Processes already underway of developing written Indigenous laws and then having them implemented through coordination agreements may proceed uninterrupted. According to an Indigenous Services Canada (“ISC”) webpage, there are seven concluded coordination agreements (including one bilateral agreement) across the country, and ISC has received an additional 31 requests to negotiate a coordination agreement.[xv] Coordination agreements are agreements discussed at section 20(2) of the Act between an Indigenous governing body exercising legislative authority in the area of child and family services, the federal government, and any relevant provincial government(s). It is only through entering into a coordination agreement – or an Indigenous governing body making good faith efforts over the span of a year to enter into one – that an Indigenous law becomes incorporated into federal law and gains the force of federal law.[xvi]
Many details of implementation, however, remain to be worked out on the ground – and undoubtedly, in the courts:
- The SCC gave examples of issues that may arise and need to be sorted out in the future. It referred specifically to questions relating to the territorial scope of an Indigenous law (for example – does it apply only in a Nation’s territory or across Canada?), and about whether a law was indeed passed by an Indigenous nation or governing body as opposed to some other entity.[xvii]
- It seems likely that courts will also end up making determinations on the permitted substantive scope of Indigenous laws: are all aspects of the law properly within federal jurisdiction such that they can be validly incorporated into federal law? This may be one basis upon which a provincial government or service provider could challenge an Indigenous law.
- Another issue not addressed in the decision and that will likely be addressed in lower courts is the application of section 23 of the Act, which states that a provision of an Indigenous law will not apply if its application would be contrary to the best interests of the child.[xviii] This is a rather paternalistic provision indicating a lack of trust of Indigenous nations to develop and apply laws in the best interests of their children and could prove problematic if applied too liberally and without taking into account the Indigenous perspective on what the best interests of the child means.
- Funding. A critical part of implementation of Indigenous jurisdiction is ensuring adequate funding to support Indigenous governance and service delivery in the area of child and family services. As discussed further below, the SCC’s discussion about the honour of the Crown may be helpful to Indigenous nations advocating and negotiating for the funding required to implement their laws.
Indigenous nations should keep in mind that they do not have to enter into a coordination agreement, but they have to at least try to negotiate using reasonable efforts for at least 1 year if they want their law to have the force of federal law. The consequence of not taking this path is that implementation will be more challenging: the law may not be recognized by service providers or provincial governments and it may take litigation to establish whether its provisions have to be implemented and/or whether they should prevail over conflicting provisions of other laws. It is important to note, however, that the SCC has specified that the Act prevents the federal government from taking the position that the right to self-government in the area of child and family services does not exist.[xix]
C. Implications for Indigenous Jurisdiction and Law-Making Beyond Child and Family Services
The decision also has major implications for Indigenous jurisdiction and law-making more generally, especially when that jurisdiction is recognized in federal legislation. While the SCC decision does not recognize inherent Indigenous jurisdiction in its own right, or as a right recognized and affirmed by section 35 of Canada’s Constitution, it does confirm the constitutionality of a framework that gives space and authority to Indigenous laws by having them incorporated into federal law by Parliament – referred to by the SCC as a “process of legislative reconciliation.”[xx]
The “process of legislative reconciliation” – now recognized as lawful by the SCC – has potentially major implications for Indigenous governments, including the following:
- Potential for similar federal laws in other areas. The SCC’s decision opens the door to the federal government adopting the same framework in other areas, such as health, policing, education and beyond. Canada has already undertaken, in its action plan to implement the United Nations Declaration on the Rights of Indigenous Peoples, to co-develop Indigenous health legislation[xxi] and to co-develop legislation regarding First Nations policing.[xxii] Additionally, it has similarly committed to taking legislative measures to implement the right to self-determination more broadly.[xxiii] The Act could serve as a template for legislation in areas beyond child and family services to make greater space for Indigenous laws within the Canadian legal landscape. The Court also emphasized that the Act at issue in this case was developed in cooperation with Indigenous peoples,[xxiv] suggesting this would be an important aspect of any similar federal laws in future.
2. Application of Honour of the Crown when Rights Recognized in Legislation. Additionally, the SCC’s discussion of the honour of the Crown may prove useful to Indigenous nations both in negotiations with the Crown and in court. In its decision, the SCC found that the Act’s affirmation of the right to self-government in the area of child and family services as a section 35 right means the Crown must act as though this right has been proven as such.[xxv] One of the results of this is to require the Crown to act in accordance with the honour of the Crown, which requires it to take a broad approach to interpreting the right and to act diligently to implement it.[xxvi] Additionally, the SCC specified that “the federal government can now no longer assert, in any proceedings or discussions, that there is no Indigenous right of self-government in relation to child and family services.”[xxvii]
These statements by the Court provide important tools for Indigenous nations negotiating coordination agreements with the Crown under the Act, or otherwise negotiating self-government in the area of child and family services. One of the important pieces of implementation that gets worked out through coordination agreements is funding for the implementation of an Indigenous law. Diligent implementation on the part of the Crown should require the Crown to ensure adequate funding is available to Indigenous nations to implement their laws and work towards achieving substantive equality for their children. Without adequate funding, Indigenous nations will be left with a “shell of an empty promise”, which would be contrary to the honour of the Crown.[xxviii]
The SCC’s analysis regarding the honour of the Crown may prove useful to Indigenous nations outside the context of coordination agreements and child and family services. Where Canada has recognized Indigenous jurisdiction in other areas, the SCC’s judgment can be used to hold Canada to honourably implementing such recognition. Open questions remain, however, regarding:
- the degree to which such recognition can be seen as binding, absent legislation that specifically binds the Crown (because the Act on this case is expressly binding on the Crown[xxix]), and
- how federal legislative recognition of Aboriginal rights and Indigenous jurisdiction will interact with provincial Crown actions.
D. Application of United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
In this case, the SCC has affirmed that the effect of Canada’s UNDRIP Act is to incorporate this international declaration into Canada’s domestic positive law.[xxx] This provides helpful clarification for lower courts, some of whom have concluded in recent years that UNDRIP is merely an “aspirational document” that has “no legal force in Canada.”[xxxi] The SCC has clarified that this interpretation is clearly wrong. What precisely the consequences are of the SCC’s confirmation that UN Declaration has been incorporated into Canadian domestic law will continue to be worked out in the courts, but this decision provides helpful and welcome clarification that this instrument is not merely an aspirational document: it is part of Canadian law. Indigenous Nations can now have more confidence raising and relying on the rights recognized in UNDRIP.
E. Implications for Recognition of Inherent Indigenous Self-Government
While this decision marks an important and novel recognition of Indigenous law-making power in Canadian law, it does not – as some media coverage suggests – recognize inherent Indigenous rights to self-government in the absence of federal recognition. As a result, while it is a very powerful decision for upholding federal legislation that recognizes Indigenous jurisdiction, it does not squarely address what happens when / if the federal government refuses to recognize asserted Indigenous jurisdiction over a particular area (like it has done in the past with control over gaming or marijuana).
Even though the Court declined to address this point directly, it did provide some arguably competing commentary that might be relied on by Crown and Indigenous governments in future cases. For example:
- Helpfully, the Court expressly left the door open to such recognition in the future, stating that it “is taking care not to exclude the possibility that the right of [Indigenous] self‑government has a distinct constitutional source.”[xxxii] It also suggested that Parliament’s decision to advance reconciliation by affirming the right to self-government may be relied on as a factor supporting a future argument that s. 35 incudes the right to self-government. [xxxiii]
- Less helpfully, the Court signaled in obiter that any right to self-government would need to be shown to be integral to a Nation’s distinctive culture[xxxiv] – a test criticized in more recent years for being based on a narrow and originalist interpretation ill-suited to assessing the right to self-government.[xxxv]
Apart from the Court’s direct comments, however, this decision has potentially major implications for helping governments – Crown and Indigenous – learn how to integrate different legal orders. Before the Court, Quebec expressed concern about how doctrines like paramountcy would work with Indigenous laws. Today, Indigenous and Crown governments will need to work together to create a workable real-life model of integrated jurisdiction in child and family welfare because of the Act. In the future, that real-life model could be an important tool to show the Court that even in the absence of federal legislation, Indigenous jurisdiction not only must exist but can operate smoothly as another order of government in Canada’s legal fabric.
References
[i] Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 [SCC Decision], at para 90, <https://canlii.ca/t/k2qhn#par90>
[ii] Ibid., at para 93.
[iii] Ibid., at paras 67, 83, 93.
[iv] Ibid., at paras 62, 66, 93.
[v] Ibid., at paras 104-118.
[vi] Ibid., at paras 119-130
[vii] Ibid., at para 132.
[viii] Ibid., at para 93.
[ix] QCCA Decision, at paras 518-528.
[x] 2021 YKCA 5
[xi] An exception to this is that if a provision of an Indigenous law that has the force of federal conflicts with sections 15.1, 16, or 17 of the Act, then provisions of the Indigenous law prevail and must be followed.
[xii]Act, at s. 10.
[xiii] Ibid., at s. 12. The Provincial Court of Alberta has suggested that the following are all “significant measures” for purposes of the Act: “an application for apprehension, initial custody, supervision orders, temporary guardianship orders, and permanent guardianship orders”: SL v Alberta (Child, Youth and Family Enhancement Act, Director), 2021 ABPC 202 (CanLII), <https://canlii.ca/t/jhgpr>, retrieved on 2023-12-22 at para 8.
[xiv] Ibid., at s. 13.
[xv] https://www.sac-isc.gc.ca/eng/1608565826510/1608565862367#wb-auto-5
[xvi] Act, at ss. 20(3), 21-22.
[xvii] SCC Decision, at para 129.
[xviii] Act, at s. 23.
[xix] SCC Decision, at para 62.
[xx] SCC Decision, at para 6.
[xxi] UNDA Action Plan, Chapter 1, Measure 6 (p. 26) unda-action-plan-digital-eng.pdf (justice.gc.ca)
[xxii] UNDA Action Plan, Chapter 2, Measure 10 (p. 53).
[xxiii] UNDA Action Plan, Chapter 1, Measures 24 (p. 31), 67 (p. 41).
[xxiv] SCC Decision, at paras 87-88, 116, 134.
[xxv] SCC Decision, at para 66.
[xxvi] Ibid., at paras 61-66.
[xxvii] Ibid., at para 62.
[xxviii] Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 (CanLII), [2013] 1 SCR 623, at para 80, <https://canlii.ca/t/fwfft#par80>, quoting from R. v. Marshall, 1999 CanLII 665 (SCC), [1999] 3 SCR 456, at para 52, <https://canlii.ca/t/1fqkq#par52>
[xxix] Act, at s. 7.
[xxx] SCC Decision, at para 15.
[xxxi] E.g. Wesley v Alberta, 2022 ABKB 713 (CanLII), at para 145, <https://canlii.ca/t/jssgs#par145>
[xxxii]SCC Decision, at paras 117, 127-128
[xxxiii]SCC Decision, at paras 117, 127-128
[xxxiv] SCC Decision, at para 112.
[xxxv] See e.g. Challenging Historical Frameworks: Aboriginal Rights, The Trickster, and Originalism, John Borrows “The Canadian Historical Review,” Volume 98, Number 1, March 2017, pp. 114-135.
References
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