Canada: The Supreme Court Weighs In On The Impact Of UNDRIP On Canadian Law

On February 9, 2024, the Supreme Court of Canada rendered its decision regarding the Reference re An Act respecting First Nations, Inuit and Métis children, youth and families. The Court concluded that the Act respecting First Nations, Inuit and Métis children, youth and families (the "Act") is constitutional and falls within Parliament's jurisdiction regarding "Indians, and Lands reserved for the Indians" (s. 91(24) of the Constitution Act, 1867).

Context

The Act is part of a legislative program introduced by Parliament to achieve reconciliation with First Nations, the Inuit and the Métis "through renewed nation‑to‑nation, government‑to‑government and Inuit‑Crown relationships based on recognition of rights, respect, cooperation and partnership" (preamble). The three elements of the Act's purpose are to:

• affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services;
• set out applicable principles, on a national level, to the provision of child and family services in relation to Indigenous children; and
• contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP").

On December 20, 2019, the Attorney General of Quebec referred the question of the Act's constitutional validity to the Quebec Court of Appeal. The Court of Appeal ruled that the Act was constitutional, except for ss. 21 and 22(3) as they would have the effect of unilaterally amending the Constitution by giving the legislative texts of an Indigenous group, community or people priority over provincial laws.

Both the Attorney General of Quebec and the Attorney General of Canada appealed from the opinion given by the Quebec Court of Appeal. The appeal was heard by the Supreme Court of Canada in December 2022.

Analysis

The Supreme Court concludes that the pith and substance of the Act 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, advancing the process of reconciliation with Indigenous peoples." The Supreme Court rules that the Act falls "squarely" within Parliament's legislative jurisdiction over "Indians, and Lands reserved for the Indians" (s. 91(24) of the Constitution Act, 1867).

Provisions Affirming the Right of Self‑Government (ss. 7, 8 and 18 of the Act)

With these provisions, Parliament affirms its position on the content of s. 35 of the Constitution Act, 1982, i.e. that child services fall under an inherent right of self-government.

The Court of Appeal ruled that these provisions were valid, and that the asserted Indigenous right of self-government included, at the very least, the right of self-regulation in relation to child and family services.

Unlike the Court of Appeal, the Supreme Court does not address whether this legislative affirmation is consistent with the limits of s. 35 of the Constitution Act, 1982, as it finds that it is not necessary to answer the question referred to the Court of Appeal. The Supreme Court concludes that, through these provisions of the Act, Parliament is not unilaterally amending the Constitution, but rather affirming its own understanding of the scope of s. 35 of the Constitution Act, 1982. In doing so, Parliament binds the federal government (and potentially the provincial governments), but not the courts. The Supreme Court adds that the importance of this affirmation will undoubtedly be "a factor to consider when the courts are called upon to formally rule on the scope of s. 35."

Provisions Establishing National Standards (ss. 9 to 17 of the Act)

These provisions establish national standards for the provision of culturally appropriate child and family services that apply across Canada. This normative framework is binding on federal and provincial providers of such services, as well as Indigenous providers in certain cases.

The Court of Appeal concluded that these provisions were valid, as they seek to ensure the continuity of the culture of Indigenous peoples, a purpose which is entirely consistent with the core of federal jurisdiction. The Court of Appeal concluded that the doctrine of interjurisdictional immunity did not apply, as ss. 9 to 17 of the Act do not interfere with the core of the provincial jurisdiction set out in s. 92(4) of the Constitution Act, 1982, which provides for "the Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers."

The Supreme Court confirms the validity of these provisions, but does not refer to the doctrine of interjurisdictional immunity. The Supreme Court opines that Parliament has the power to bind provincial governments within areas of federal jurisdiction. Moreover, the national standards imposed by the Act are not precise or inflexible, and provincial public servants retain significant discretion in making decisions concerning Indigenous children. The Court also notes that the minimum standards imposed by the Act are largely complementary to provincial initiatives. Moreover, the national standards apply to all service providers, whether they are provincial public servants or not. It follows from the foregoing that the national standards have only "incidental" effects on the provinces' exercise of their powers, including on the work of their public servants.

Provisions Setting Out Concrete Measures to Implement the UNDRIP (ss. 20 to 24 of the Act)

These provisions stipulate that an Indigenous people or group, community or people can adopt legislation respecting child and family services, and that such legislation has the force of law as federal law and prevails over provincial provisions.

The Court of Appeal was of the opinion that these provisions were unconstitutional because they altered Canada's constitutional architecture. For the Court of Appeal, the purpose of these provisions was to extend the scope of the doctrine of federal paramountcy to the legislative texts of an Indigenous group, community or people in the area of child and family services. Such laws are not federal laws enacted under s. 91(24) of the Constitution Act, 1867, but rather Indigenous laws that serve Indigenous imperatives.

The Supreme Court disagrees and concludes that these provisions are valid. Indeed, it is well established that it is constitutionally open to Parliament to use anticipatory incorporation by reference. This drafting technique allows Parliament to adopt the laws of another jurisdiction, including the laws respecting child and family service of Indigenous groups, communities or peoples, without having to replicate them in its own legislation. According to the doctrine of federal paramountcy, the provisions incorporated into federal law prevail over provincial laws to the extent of any conflict or inconsistency, as provided for in s. 22(3) of the Act.

The UNDRIP and its Impact on Canadian Law

The Supreme Court seizes this opportunity to comment on the impact of the UNDRIP in Canadian legislation. Although the UNDRIP is not binding as a treaty in Canada, it is incorporated into Canada's domestic positive law by the United Nations Declaration on the Rights of Indigenous Peoples Act, which states that the UNDRIP provides a framework for reconciliation.

In the Supreme Court's view, the Act is an example of legislation that incorporates Canada's commitments under the UNDRIP. An anticipated practical effect of the Act is to make Canadian law more compatible with the UNDRIP. The Supreme Court is of the opinion that the concrete implementation measures incorporated into the Act must therefore be interpreted in light of the UNDRIP. Moreover, the Supreme Court repeatedly refers to the UNDRIP to define the pith and substance of the Act and to confirm its constitutionality.

Conclusion

This decision has important implications for Indigenous communities. It provides guidance on Parliament's constitutional jurisdiction to implement the UNDRIP and on the validity of the legal means it can take to do so. In addition, this decision is likely to impact how the courts will interpret the UNDRIP and apply it in Canadian law.

This judgment may also have an impact on constitutional law more generally, notably regarding Parliament's power to enact legislative provisions "affirming" its interpretation of constitutional provisions, to bind provincial governments and to delegate legislative powers.

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