On February 9, 2024, the Supreme Court of Canada ("SCC") upheld the constitutionality of the federal government's legislation, An Act respecting First Nations, Inuit and Métis children, youth and families (2024 SCC 5) (the "Act"). This Act, also referred to as "Bill C-92", was developed jointly with First Nations, Métis and Inuit, as part of the federal government's implementation of the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP").
The SCC found the Act falls within Canada's jurisdiction over "Indians, and Land reserved for the Indians" under section 91(24) of the Constitution Act, 1867. The Court also confirmed Parliament's right to recognize and affirm in legislation, Indigenous rights to self-government over children and family welfare. However, the SCC was clear that Parliament's legislative affirmation does not mean these rights are constitutionally-protected.
In 2023, Canada settled a class action related to discrimination in the First Nations Child and Family Services system (an on-reserve program) for $23.34 billion. Bill C-92 is the forward-looking component of Canada's efforts to eliminate this discrimination.
The Act and the Quebec Court of Appeal Judgement
Parliament passed the legislation to address the issue of overrepresentation of Indigenous children in child and family services systems while recognizing that Indigenous Peoples are in the best position to identify and implement solutions to this issue. The Act came into force on January 1, 2020, but was pre-emptively challenged, by way of a reference to the Quebec Court of Appeal, by the Government of Quebec. In reference decisions, courts provide an opinion on important legal questions raised by a government. The court's answer is not binding, but, practically-speaking, it is authoritative. The Government of Quebec challenged the constitutionality of Bill C-92 on two primary grounds:
- Quebec argued that the Act interfered with the Province's
jurisdiction over children and family services.
Bill C-92 creates national minimum standards that must be met across the country when child and family services are being provided to Indigenous children and families and creates a pathway to Indigenous jurisdiction over child and family services by way of agreement with the federal and provincial governments. Further, the Act gives these Indigenous laws force of law as federal laws, giving them paramountcy over provincial laws of the same subject matter. Quebec argued this overstepped jurisdictional boundaries set out in the Constitution and impermissibly amended the Constitution.
- Quebec argued that Bill C-92 changed the structure of the
Constitution by introducing a third order of government –
Indigenous governments – into Canada's
Constitution.
Quebec's submission was that Indigenous rights to self-government, if existing, required an amendment to the Constitution or prior judicial recognition. In other words, Parliament could not unilaterally create a third order of government and, by affirming the right to self-government, Canada had effectively amended the Constitution.
The Quebec Court of Appeal largely did not accept Quebec's arguments. However, it did find that the sections (section 21 and 22(3)) giving Indigenous laws on child and family services the force of federal law, overriding conflicting provincial laws, was impermissible.
The Court of Appeal upheld Canada's legislative recognition of the inherent right to self-government of Indigenous Peoples in Canada, finding this right exists and is protected by section 35. In its reasons, the Court extensively considered the history and development of the asserted right to Indigenous self-government.
The SCC Upholds the Entirety of the Legislation
The SCC upheld the legislation as a whole, including the provisions that were struck down by the Quebec Court of Appeal. The SCC found that the legislation was an exercise of reconciliation and was an action based upon Canada's commitment to implement UNDRIP.
In contrast to the Quebec Court of Appeal, the SCC found that Parliament has the authority to implement a legislative scheme whereby: (a) Indigenous laws are incorporated into federal law; and (b) Indigenous laws that are incorporated into federal law override (are "paramount to") any conflicting provincial laws.
Also in contrast to the Quebec Court of Appeal, the SCC declined to determine if section 35 protects an Indigenous right to self-government.
Parliament is Permitted to Bind Itself to Recognize the Indigenous Right to Self-Government, But Cannot Constitutionalize the Right
One of the key issues was Parliament's recognition of Indigenous Peoples' inherent right to self-government, which is acknowledged in both the preamble and section 18 of the Act. The SCC declined to judicially recognize whether this right exists in Canada in this decision. In the SCC's view, it was not necessary to do so to assess the constitutionality of the Act, and unlike the Quebec Court of Appeal, left the matter to another day.
Quebec had argued that this recognition of the inherent right to self-government amounted to an amendment of section 35 the Constitution Act, 1982, which recognizes and affirms existing Aboriginal rights within Canada. Quebec's position was that this unilateral recognition by Parliament was impermissible, and, at its source, Indigenous rights to self-government must arise from a formal amendment to the Constitution or be recognized by the courts.
The SCC found there was no constitutional amendment by virtue of Parliament's legislative recognition of the right. While the SCC did not rule on the existence or the scope of the right to Indigenous self-government, it found that Canada was bound, by its own legislation, to act as though the inherent right to self-government exists with respect to child and family services.
In its analysis, the SCC relied heavily upon Canada's commitment to implement UNDRIP and recognized that this legislation was an act of legislative reconciliation on behalf of the federal government. Unlike the Quebec Court of Appeal, the SCC did not undertake an in-depth analysis of the right to self-government, as it found the legislation merely affirmed Canada's commitment to act as though the right exists. The SCC also reaffirmed its proper role in deciding and defining the content of constitutional Indigenous rights in Canada.
However, this decision is a strong signal that the Indigenous right to self-government likely exists in Canada, though the scope, subject and content of the right is still to be determined. The SCC stated that rights to self-government, insofar as they exist, "cannot be framed in excessively general terms" (para. 112). Indigenous rights to self-government may receive further consideration in an upcoming decision of the SCC in Cindy Dickson v. Vuntut Gwitchin First Nation, a case considering the application of the Canadian Charter of Rights and Freedoms to Indigenous self-governments.
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