On February 9, 2024, the SCC released its decision in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families. The Reference was in relation to federal legislation, commonly referred to as Bill C-92 (the "Act"), which provides Indigenous peoples with control over their child and family services, and sets out national standards and principles for the provision of culturally appropriate child and family services by Indigenous groups, communities, or peoples.
The Attorney General of Quebec referred the question of the Act's constitutional validity to the Quebec Court of Appeal. Quebec argued the Act exceeded the federal government's jurisdiction. The Quebec Court of Appeal found that the Act was constitutional, with the exception of two sections which gave the laws of Indigenous groups, communities or peoples in relation to child welfare priority over provincial laws. Both Quebec and the federal government appealed the decision to the SCC.
The SCC ultimately found the Act as a whole to be constitutionally valid, as it falls within the federal government's legislative jurisdiction over "Indians, and Lands reserved for the Indians" under section 91(24) of the Constitution Act, 1867 (the "Constitution").
The SCC's decision provides important commentary on multiple concepts and also considers the important question of whether s. 35 includes the right to self-government.
Application of UNDRIP to Canadian Law:
The status of the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP") in Canadian law has long been a source of academic and judicial speculation. In this case, the SCC provides some interesting commentary as to how the inclusion of UNDRIP into Canadian positive law through the United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14 ("UNDRIP Act") effects the interpretation of other federal legislation, including the Act.
The SCC noted the Act is part of "a broader 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", with its framework being UNDRIP.
The Court recognized the Act as being part of a "braiding" together of UNDRIP with Canadian law and Indigenous legal orders to achieve reconciliation. By enacting a statute that deals with Indigenous legislative authority and national standards for child and family services, the Court noted that Canada's commitment to implementing UNDRIP and responding to the Truth and Reconciliation Commission's calls to action regarding child and family services in legislation are "met immediately", without the uncertainty of negotiations, the "slowness of treaty settlements" and the "inevitable conflicts associated with court settlements".
"Legislative Reconciliation"
Much of the focus of Quebec's submissions and the SCC's decision is on the unique aspects of the Act and whether the "legislative reconciliation" the Act strives for violates the Constitution.
One aspect of this "legislative reconciliation" is found in the Act's recognition of the "inherent right of self-government" stemming from section 35 of the Constitution.
Section 18(1) of the Act states "[t]he inherent right of self-government recognized and affirmed by section 35 of the Constitution includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority". Further, section 8(a) of the Act states that the purpose of the Act is to affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services. Section 7 states the Act is binding on the Crown in right of Canada or of a province.
In its submissions, Quebec argued this affirmation of the inherent right to self-government as part of section 35 and the binding of the Crown in right of a province to this affirmation had the effect of impermissibly and unilaterally amending section 35 of the Constitution through ordinary statute.
The SCC disagreed with this submission, stating that Parliament was not amending section 35 through the Act, but was instead stating through a binding affirmation its position on the content of section 35 as a constitutional provision. The Court did note that the Act is unusual in this regard, stating that "few legislative frameworks have thus far circumscribed the Crown's actions with respect to Indigenous peoples". However, the SCC found that it was open to Parliament to do so:
[64] It is open to Parliament to affirm, as it has in s. 18(1), what it considers to be the constitutional requirements for reconciliation, even if it cannot, by doing so, unilaterally amend the Constitution. By linking the affirmation in s. 18(1) to s. 35 of the Constitution Act, 1982, particularly its first subsection, Parliament has nevertheless intentionally embarked on a particular path to reconciliation. Indeed, it has set out, in an ordinary statute, its understanding of the scope of a constitutional provision, and it has done so while ensuring that the Crown is bound to act on the basis of this same understanding, that is, in accordance with the legislative affirmation that the inherent right of self government has constitutional status and with the idea that, from a jurisdictional standpoint, this right includes the jurisdiction of Indigenous governing bodies in relation to child and family services. The honour of the Crown is thus engaged.
The Court characterized the affirmation of the right to self-government found in the Act as a "step toward changing or adjusting the culture underlying the actions of the federal and provincial governments... Parliament has used the Act to communicate to the courts and society its position that the law must recognize the importance of Indigenous self‑government in relation to child and family services."
The province of Quebec and the Quebec Court of Appeal also took issue with sections 21 and 22(3) of the Act. These sections set out that a law of an Indigenous group, community or people made under the Act has force of law as federal law and, if there is a conflict or inconsistency between such a law and the law of a province, the law of the Indigenous group, community, or people prevails to the extent of the conflict or inconsistency.
Quebec argued, and the Court of Appeal agreed, that these sections had the effect of unilaterally amending the Constitution by giving the laws of Indigenous groups, communities or peoples priority over provincial laws. Again, the SCC disagreed. The Court stated that such an incorporation by reference provision is constitutional.
The SCC noted that Parliament would have the authority to enact laws in relation to child and family services in relation to Indigenous groups, communities, and peoples in any event under section 91(24) of the Constitution, the laws would derive force of law under that section, and not necessarily from the Indigenous group, communities or peoples inherent right of self-government.
Right of Self-Government:
The SCC specifically did not make any findings regarding whether Parliament's affirmation that section 35 includes the inherent right of self-government is correct, either in relation to child and family services or at all.
The Court stated that ultimately, it will for the courts to determine on the basis of evidence in front of them whether section 35 includes the right of self-government. It took care "not to exclude the possibility that the right of self-government has a distinct constitutional source", which it stated, "remained an open question".
Overall, the SCC's decision in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families provides some interesting and helpful commentary on the practice of "legislative reconciliation" and how governments may incorporate Indigenous laws into Canadian law without offending the Constitution.
McKercher LLP provides services to indigenous groups and communities in relation to Bill C-92. Our team is knowledgeable in helping groups establish their own child and family services legislation and authorities. Contant a member of our Indigenous Law Practice group for help in these areas.
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