Constitutionality of Indigenous child welfare law to be decided by the Supreme Court of Canada

By Sara Mainville, Claire Truesdale, Christina Gray, May 9th, 2022

UPDATE: The SCC has extended the usual timeline for filing interventions. The deadline for any interested Indigenous communities or other organizations to file applications to intervene is now September 12, 2022

On April 20, 2022, the Supreme Court of Canada granted leave to appeal the Quebec Court of Appeal’s decision in a reference regarding federal Indigenous child welfare legislation (Reference)(( 1))The highest court in Canada will decide the constitutionality of the Act respecting First Nations, Inuit and Metis children, youth and families (Act).((2))

In the Reference, the Quebec Court of Appeal (QCCA) was asked to provide an opinion on Canada’s jurisdiction under the Constitution to pass the Act. The QCCA found that Indigenous peoples have the right to self-government and jurisdiction over child and family services. However, the court also found that two provisions of the Act were unconstitutional. These two provisions of the Act gave Indigenous laws the force of federal law and made them paramount over provincial laws.

Claire Truesdale of JFK Law represented Aseniwuche Winewak Nation as an intervener in the Reference.

Photo credit to Aseniwuche Winewak Nation, used with permission

The Act is unlike any other child welfare law in Canada

The Act is intended to address the overrepresentation of Indigenous children and youth in the child welfare system and keep children connected to their families, communities and culture/national identity.((3))

The Act does two important things in service of this goal: (1) It creates national standards for child and family services for Indigenous people that provide better protection for the connection between children, family, communities and culture than existing provincial laws;((4))and (2) it establishes a process for recognition and implementation of Indigenous jurisdiction over child and family services.((5)) It does this by recognizing Indigenous peoples’ inherent right of self-government over the care of Indigenous children((6)) and providing for a process of negotiation of coordination agreements with Crown governments to coordinate Indigenous, federal and provincial laws on child and family services.((7))

Where an Indigenous “governing body” attempts to negotiate a coordination agreement but agreement is not reached, the Act provides that Indigenous laws have the force of federal law (section 21) and that Indigenous laws prevail over provincial laws, to the extent of any inconsistencies (section 22(3)). By operation of these sections, the Act can make Indigenous laws “paramount” over provincial laws.

Quebec argued that the Act was outside the scope of the federal power

The Attorney General of Quebec (Quebec) asked the QCCA to find that the Act is outside the scope of the federal government’s power over “Indians and lands reserved for Indians”, under s. 91(24) of the Constitution because:

The national standards interfere with the provincial public service by dictating how child and family services are delivered; and
The recognition of self-government and paramountcy of Indigenous laws is an unlawful attempt to change the structure of the Constitution.((8))

Decision of the QCCA

At the beginning of its decision, the QCCA recognized the legacy of harm inflicted on Indigenous children and families by the Canadian state, including through residential schools and the child welfare system, and how this interfered with transmission of culture and identity from one generation to the next. This formed the foundation for parts of its legal analysis. Ultimately, the QCCA determined the Act is constitutional, except for sections 21 and 22(3), which give Indigenous laws on child and family services the force of federal law and make them paramount over provincial laws.

The QCCA found that the national standards of the Act do not interfere with provincial power over the public service. The Act’s effects on public servants are only incidental, which is not enough to make them unconstitutional.((9))

On the issue of self-government, the QCCA recognized that Indigenous people have an inherent right of self-government that flows from their original sovereignty over their territories. The QCCA held that this is entrenched as an Aboriginal right in section 35 of the Constitution, and includes, at the very least, the right to regulate child and family services. The QCCA limited its findings to a right of self-government over child and family services and did not comment on what other rights might be included within self-government.((10)) This is the first time a court has recognized a “generic” right under section 35 – a right that is held by all Indigenous people in Canada, rather than a community-specific right, which may result in an amended test for section 35 rights.((11))

The QCCA found that it was legitimate for Canada to recognize Indigenous self-government, but that parts of the process the Act established for implementing self-government were unconstitutional. The court held that sections 21 and section 22(3) of the Act go beyond the scope of federal power by extending the application of federal paramountcy (priority over provincial laws) to the Aboriginal right of self-government under section 35.((12)) The QCCA found that Indigenous laws can override provincial and federal legislation, but only because of the recognition and affirmation of the right under section 35, not the Act. The QCCA said that the proper framework for determining whether an Indigenous law or a provincial law will prevail when they conflict is the Sparrow ((13))test for justification of infringement of Aboriginal rights. The QCCA indicated that generally an Indigenous law will prevail, unless the government can establish the infringement of the right to self-government is justified, saying:

Where there is a real conflict between Aboriginal and federal or provincial legislation, one must conclude that there is an infringement of the Aboriginal right. Since the Aboriginal right is recognized and affirmed by s. 35, the Aboriginal legislation must prevail. Concluding otherwise would render s. 35 meaningless. Thus, in principle, Aboriginal legislation prevails over incompatible federal or provincial legislation, unless the government concerned can establish that the infringement is justified.((14))

The court went on to note that the justification test under Sparrow is a “stringent test”, indicating it will be difficult for the government to meet.((15))

As a practical matter, the QCCA noted the failure of the legislation to address funding for child and family services.((1 6))Under section 20(c) of the Act, coordination agreements may include financial arrangements for the provision of appropriate services by Indigenous groups, but this is not required. The issue of adequate funding may be subject to further conflict and litigation between Indigenous organizations or Nations and governments.

Appeal to the Supreme Court of Canada

Quebec appealed all parts of the decision to the Supreme Court of Canada (SCC), and Canada has appealed the QCCA’s finding that sections 21 and 22(3) are unconstitutional. A hearing date has not yet been set, but can be expected in late 2022 or early 2023.

Indigenous communities and organizations who wish to be involved in this case can file applications to the court to “intervene”. Interveners get the opportunity to make their own submissions to the court on the issues. The SCC has extended the usual timeline for filing interventions. The deadline for any interested Indigenous communities or other organizations to file applications to intervene is now September 12, 2022.

Why should Indigenous communities and organizations intervene?

This case will have significant impact on the delivery of child and family services to Indigenous communities, the recognition and implementation of Indigenous self-government, and Canadian constitutional law relating to Indigenous peoples.

The case will have significant impact on Canadian law on Indigenous self-government

This case will ask the SCC whether the inherent right of Indigenous self-government exists and how federal and provincial governments may act to recognize and implement it through Canadian law.

If the SCC upholds the QCCA’s decision, it will mark the first time the highest court in Canada has recognized a generic right (a right applying to all Indigenous peoples in Canada) rather than only recognizing a right specific to each Indigenous nation as it has done in the past. It would also be the first time the SCC has recognized a right of self-government. The SCC will have to reckon with the previous case on self-government, Pamajewon,((17 ))which treated self-government like a specific right that must be proven on a nation-by-nation basis. What the court decides will have major implications for the recognition and implementation of self-government in Canada, both with respect to child and family services and more broadly.

It is important to protect the Act’s mechanism for implementing Indigenous law

In its decision, the QCCA recognized Canada’s ability to recognize Aboriginal rights to self-government, but took away the mechanism the Act provided to ease the path to implementation of those rights when it found sections 21 and 22(3) unconstitutional.

While the QCCA said that Indigenous laws should usually prevail over provincial laws in the infringement and justification analysis,((18)) if the SCC upholds that court’s approach, there is a risk that the Sparrow framework will not be applied as the court envisioned it.

The Sparrow framework largely benefits the party with greater power and resources to act and then defend their actions in court (the provinces). In this way, the QCCA’s solution preserves the existing power dynamic and will likely lead to more conflict and litigation. As with other Aboriginal rights, the onus will likely fall on Indigenous communities to take the province to court and explain how the provincial law unjustifiably infringes their rights under the Sparrow test. The provinces have more resources to engage in these court battles. In the meantime, the provinces, as the party with greater power, may continue to implement their provincial child and family service regimes as they see fit, continuing the legacy of harm recognized by the QCCA in its decision.

On the other hand, the Act’s solution of coordination agreements and making Indigenous laws paramount shifts the power dynamic. It gives Indigenous communities more leverage and motivates the provinces to work with them to implement Indigenous self-government. The availability of coordination agreements is the “carrot” to positively motivate provinces to come to the table and negotiate and paramountcy is the “stick” if they fail to come to an agreement. This provides a more straight-forward mechanism to recognize the priority of Indigenous laws, and one that is less likely to lead to complex, expensive and protracted litigation. The Act pushes the provinces to do exactly what the SCC has encouraged the Crown and Indigenous peoples to do in section 35 case law – negotiate.

The Act’s recognition, coordination agreement, and paramountcy model moves away from delegated jurisdiction, facilitates negotiation and provides a potential model for recognition of self-government in other areas beyond child and family services. It will be important for Indigenous communities and organizations to be involved in the SCC appeal to help protect this helpful solution to the Crown’s longstanding reluctance to recognize and implement Indigenous self-government.

The case will have significant impact on the implementation of UNDRIP

The model provided by the Act also offers a way to implement the principles of self-government recognized in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)((19)) through Canadian law. Whether or not that model is upheld by the courts will impact the work of the federal and provincial governments under their UNDRIP implementation laws.((20))

This case will also impact the role of UNDRIP in interpreting section 35 of the Constitution. In its decision, applying a legal principle on the “presumption of conformity” with international law, the QCCA stated that UNDRIP can be used to interpret the content of section 35 of the Constitution. Specifically, the court held that the content of section 35 should be assumed to be consistent with UNDRIP and this can be used to support or confirm a court’s interpretation of section 35. This is the first time a court has applied this principle to the interpretation of section 35, and could have significant impacts on how self-government and other section 35 rights and title are interpreted by courts.

The case can end uncertainty on the Act and the exercise of Indigenous jurisdiction

While the QCCA decision only has legal force in Quebec, until the highest court in Canada releases a decision on the constitutionality of the Act, Indigenous communities across Canada may face provinces that are reluctant to negotiate or to recognize Indigenous jurisdiction while the constitutionality of the legislation remains up for debate. If the SCC agrees with the QCCA and strikes down sections 21 and 22(3) as unconstitutional, Indigenous communities will still be able to exercise their jurisdiction over child and family services, but they may find the provinces less likely to cooperate. A decision from the SCC which upholds section 21 and 22(3) would end the uncertainty about the validity of the Act’s mechanism for prioritizing Indigenous laws, and pressure the provinces to negotiate fair coordination agreements.

It is important to protect the national standards

The national standards established by the Act provide important protections for maintaining the connection of Indigenous children to their families, communities and culture. For example, the Act provides for preventative care to prevent children from being apprehended and for community involvement in decisions, planning and service delivery to their children. These protections are important to reduce the number of children in care and improve the quality of care in communities that are not yet ready to exercise their own jurisdiction over child and family services. The SCC will decide whether these protections are constitutional and can continue to apply. If they are found unconstitutional and struck down, an important stopgap measure against the continued harms of provincial child and family services systems will be lost.

Opportunities for involvement in the case

As noted above, Indigenous communities and organizations who wish to intervene in the case have until September 12, 2022 to file applications to intervene. We would be happy to assist anyone who is interested in learning more about how they can be involved in this case.