Supreme Court upholds First Nations’ rights to self-govern in child and family services

Friday, February 9, 2024

This morning, the Supreme Court of Canada released a unanimous decision in the C-92 Reference (Attorney General (Quebec) v Attorney General (Canada), 2024 SCC 5.) The Court said that An Act respecting First Nations, Inuit and Métis Children, Youth and Families, SC 2019 c 24 is constitutional. The decision is an important win for Indigenous peoples exercising their jurisdiction over child and family services.

OKT lawyers Maggie Wente, Krista Nerland and Jesse Abell were honoured to represent the intervener Chiefs of Ontario, who intervened on First Nations’ inherent and s. 35 right to self-government. The views expressed in this blog post are the authors’ and not those of Chiefs of Ontario.

What is An Act Respecting First Nations, Inuit and Métis Children, Youth and Families, SC 2019 C 24?

An Act Respecting First Nations, Inuit and Métis Children, Youth and Families, SC 2019 c 24 (“the Act”) is a federal law that provides for the recognition of Indigenous laws about child and family services. The Act does three main things:

First, it affirms that Indigenous people hold an inherent right of self-government in relation to child and family services that is protected by s. 35 of the Constitution Act, 1982,¹ and provides a framework for Indigenous peoples to exercise their jurisdiction over child and family services if and when they choose. It says that Indigenous people have the power to make laws about child and family services, and the authority to enforce and administer those laws.

Second, it establishes minimum federal standards for child and family services across Canada. These provisions apply to and prevail over both provincial/territorial and Indigenous laws. This means that they are part of Indigenous laws passed under the Act automatically.

Third, the Act sets out a mechanism to deal with conflicts between Indigenous laws, federal laws and provincial/territorial laws. Generally, if there is no conflict, all three systems of law apply. If there is a conflict between an Indigenous law and a federal law, the Indigenous law applies except in relation to the federal minimum standards, and the requirement that the Indigenous law will not apply if it is not in the child’s best interests. If certain conditions are met, the Act says Indigenous laws will “have the force of federal law” – and will prevail over provincial/territorial laws if there is a conflict.

What was the case about?

The case dealt with the constitutionality of An Act Respecting First Nations, Inuit and Métis Children, Youth and Family, SC 2019, c 24 (“the Act”).

Quebec brought a reference to the Quebec Court of Appeal. A reference is when the government asks the Court for an opinion on a big legal issue. The Quebec Court of Appeal said the Act was constitutional, except for the provisions that dealt with conflicts and paramountcy. Quebec appealed this to the Supreme Court of Canada. Canada cross-appealed the part of the ruling that said the conflict and paramountcy provisions were unconstitutional.

At the Supreme Court, Quebec argued that the Act was “ultra vires” (outside) Parliament’s power to pass laws under s. 91(24) of the Constitution Act, 1867. Section 91(24) says that Parliament can pass laws in relation to “Indians and Lands Reserved for Indians”.

Quebec also argued that the law attempted to “amend” the Constitution by recognizing that Indigenous peoples hold a s. 35 right to self-government over child and family services. Quebec said this effectively created a third order of government, and that only courts could say whether there is a s. 35 right to self-government.

The decision

The Supreme Court, in a unanimous decision, dismissed Quebec’s challenge. The Court found that the whole Act is valid. Here are some of the big take-aways from today’s decision:

The Act is constitutional

The Court upheld the whole Act as a valid exercise of Canada’s power under s. 91(24) of the Constitution Act, 1867 to pass laws in relation to “Indians and Lands Reserved for Indians”. The Court said that the core purpose 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, to advance the process of reconciliation with Indigenous peoples.[1] This is within Parliament’s jurisdiction under s. 91(24).

The conflict/ paramountcy provisions are constitutional

The Court also said that the conflict provisions in ss. 21 and 22 are constitutional. The Court held it was open to Parliament to incorporate Indigenous law by reference as federal law.[2] It was also open to Parliament to say that Indigenous laws are paramount over provincial law once they are incorporated as federal law.[3]

This means that if First Nations satisfy the conditions in the Act (i.e. negotiate a coordination agreement or make reasonable efforts to do so over the course of a year),[4] their law will prevail if it conflicts with provincial child and family service laws.

The federal government is bound by its recognition that there is a s. 35 right to self-government in child and family services

The Court said that nothing stops Parliament from affirming in the Act that Indigenous peoples have a section 35 right to make laws in relation to child and family services. And, having affirmed this, the federal government is now bound by it. The federal government can no longer assert that there is no Indigenous right to self-government in child and family services as long as the Act is in force.[5]

This is important because it means that in negotiations and in court, Canada can no longer make arguments rooted in the idea that Indigenous peoples do not have a right to self-govern in relation to child and family services.

The Court left open the question of whether the provincial governments would also be bound by this affirmation.[6] That may be the subject of future litigation.

Canada has to generously interpret and diligently implement Indigenous peoples’ right to self-government in child and family services

The Court also said that the Honour of the Crown now governs how Canada may act in relation to Indigenous peoples’ right to self-govern in the area of child and family services.[7] This requires the Crown to interpret the right to self-government over child and family services broadly, and to act diligently to implement it.[8] This is the first time the Supreme Court has applied this kind of obligation to promise or commitment in a regular statute, and to an Aboriginal right (as opposed to a treaty right).

The Court did not decide whether s. 35 of the Constitution Act, 1982 includes a right to self-government over child and family services

The Supreme Court also expressly did not decide whether s. 35 of the Constitution Act, 1982 includes a right of self-government over child and family services.[9] It signalled that there is good reason to conclude that control over child and family services is integral to the survival of Indigenous cultures[10] – which gestures to the idea that this kind of right could satisfy the test for Aboriginal rights set out in R v. Van der Peet. But the Court left the issue for another day.[11]

UNDRIP is now part of Canada’s domestic law

The Court clarified that by passing the federal United Nations Declaration on the Rights of Indigenous Peoples Act,[12] Canada has implemented UNDRIP into what it called “Canada’s domestic positive law”.[13] This means that all the parts of UNDRIP – from the guarantee of free, informed consent in Art. 19 to the right of self-determination in Art. 3 – are now part of Canadian law.

This part of the judgment is an important clarification of the role of UNDRIP. It should make it much easier for Indigenous peoples to rely on UNDRIP to support recognition of their rights in both court and at negotiating tables.

Recognition of the issue of the overrepresentation of Indigenous children

Finally, the Court very clearly recognized the problem of the overrepresentation of Indigenous children in the child welfare system, and strongly encouraged federal-provincial cooperation on this issue.[14]

[1] Reference re An Act respecting First Nations, Inuit and Metis children, youth and families, 2024 SCC 5, at para. 41 (“C-92 Reference”).

[2] C-92 Reference, at para 121-122, 125-127.

[3] C-92 Reference, at para 131-132.

[4] An Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c24, s 20(3).

[5] C-92 Reference, at para. 62.

[6] C-92 Reference, at para 118.

[7] C-92 Reference, at para 64.

[8] C-92 Reference, at paras 65-66.

[9] C-92 Reference, at para. 111, 112.

[10] C-92 Reference, at para 113.

[11] C-92 Reference, at para 114.

[12] United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c. 14.