Written by: Nick Smith, Iain Thomas, and Kelty McKerracher.

On February 9, 2024, the Supreme Court of Canada (“SCC” or the “Court”) released its decision Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5, ruling on the constitutionality of An Act respecting First Nations, Inuit and Métis children, youth and families (the “Act” or “Bill C-92”).

The SCC held that the Act as a whole is constitutionally valid, representing a monumental victory for Indigenous rights and the affirmation of the United Nations Declaration of Indigenous Peoples (“UNDRIP” or the “Declaration”). The unanimous decision affirms that Canada’s constitutional architecture is not a barrier to true reconciliation, but contains the possibility for renewal, redress, and even healing. Further, it ensures that reclaiming jurisdiction over child and family services through the process outlined under the Act remains a viable and important option for Indigenous peoples to address the devastating impacts of colonialism on Indigenous children and families.

PRACTICAL EFFECTS

The underlying intent and effect of the ruling is to encourage Canada, the provinces, and Indigenous peoples in our shared work of building the legislative structures and agreements needed for true reconciliation to occur – a reconciliation in which Canada’s laws and Indigenous legal orders effectively co-exist, Indigenous peoples fully exercise their inherent right of self-government, and Canadians are educated about and appreciate and laws and legal authority of their hosts and constitutional partners. 

In practical terms, the ruling that the Act is constitutional safeguards its continued application to protect the well-being of Indigenous children, youth and families and advance reconciliation with Indigenous peoples.[1] Additionally, the Act will serve to help avoid costly and time-consuming litigation over whether and to what extent an Indigenous group or people have jurisdiction in relation to child and family services.[2] Through its decision, the SCC affirmed that legislative initiatives, such as the Act, designed to advance reconciliation, are not only possible, but in many ways, advantageous.

BACKGROUND

The Act, which can be found here , received Royal Assent on June 21, 2019, and came into force on January 1, 2020.  It is express in affirming that the inherent right of Indigenous peoples to self-government, recognized and affirmed by s. 35 of the Constitution Act, 1982, includes jurisdiction in relation to child and family services. The Act is intended to both promote reconciliation with Indigenous peoples and address the overrepresentation of Indigenous children and youth in child welfare systems, recognizing that Indigenous peoples are best placed to identify and implement solutions to what has been described as a humanitarian crisis.  

Following the Act coming into force, on January 16, 2020, the Government of Quebec referred the Act to the Court of Appeal for Quebec to consider its constitutionality. The Quebec Court of Appeal held that the Act was constitutionally valid, except for sections 22 and 22(3), which give the laws of Indigenous groups priority over provincial laws, impermissibly altering Canada’s constitutional architecture. Both the Attorney General of Quebec and the Attorney General of Canada appealed the Quebec Court of Appeal’s decision to the SCC. 

The SCC Decision

In the course of its decision, the SCC addresses several arguments presented by the Attorney General of Quebec concerning the constitutionality of the Act. First, the Court ruled that the Act as a whole is constitutional. Second, it determined that sections 8(a) and 18(1) of the Act are not intended to amend the constitution. Finally, the SCC affirmed that Parliament has the authority to enact legislation asserting the primacy of Indigenous laws over federal and provincial laws that may be inconsistent. Below, we delve further into the Court’s reasoning in these specific areas.

Constitutional Validity

To determine the constitutional validity of a law, a court undertakes a two-stage process. First, the court must identify the pith and substance of the law. Second, the court must classify the law by reference to the heads of power listed in ss. 91 and 92 of the Constitution Act, 1867.[3]

To determine the pith and substance of a law, the court identifies the purpose and effects of the law to determine its dominant characteristic.[4] The SCC held that the Act’s pith and substance is protecting the well-being of Indigenous children, youth and families by promoting the delivery of culturally appropriate child and family services and, in doing so, advancing the process of reconciliation with Indigenous peoples.[5] Accordingly, the SCC held that the Act, by establishing national standards and aiding in the implementation of Indigenous laws, squarely falls within Parliament’s powers under section 91(24) of the Constitution Act, 1867, over “Indians”. 

Further, the SCC rejected the Attorney General of Quebec’s arguments that the Act is unconstitutional as Parliament is purporting to unilaterally amend section 35 of the Constitution Act, 1982. The Court held that in this case, Parliament did not unilaterally amend section 35 of the Constitution Act; rather, Parliament is stating in the Act its position on the content of section 35. 

UNDRIP

The Court found that the Act implements aspects of UNDRIP in Canadian law and that an anticipated practical effect of the Act is to make Canadian law more consistent with the Declaration. 

Article 38 of UNDRIP provides that “States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of [UNDRIP]”. The Canadian Government has committed to take such measures in the preamble of the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c. 14 (“UNDA”), which was enacted with the express purposes of affirming UNDRIP as a universal international human rights instrument with application in Canadian law and to provide a framework for the Government of Canada’s implementation of the Declaration. The Act is one more step toward living up to this commitment.[6] 

The Act also establishes mechanisms to facilitate and encourage, from a forward-looking perspective, the negotiation of agreements between the Crown and Indigenous communities, serving as a means to advance reconciliation not through the courts, but through a cooperative government-to-government approach. 

The Court also notes that, while it may be anticipated that the concrete measures to implement aspects of UNDRIP relating to Indigenous children set out in the Act’s provisions will advance reconciliation, it is imperative to recognize that reconciliation is a “long-term project” that “will not be accomplished in a single moment, but rather through a continuous transformation of relationships and a braiding together of distinct legal traditions and sources of power that exist.”[7]

Paramountcy

Finally, the Court affirmed that it is constitutionally open to Parliament to use “anticipatory incorporation” to incorporate by reference the laws that Indigenous groups, communities or peoples may put in place in relation to child and family services. Because Canada has ​​independent legislative authority to enact such laws itself under s. 91(24) of the Constitution Act, 1867, referentially incorporating Indigenous laws does not alter Canada’s constitutional structure. 

The SCC further stated that it is open to Parliament to affirm that the laws of Indigenous groups, communities or peoples will prevail over other laws in the event of a conflict. The Court said this is simply a legislative validation of the doctrine of paramountcy, by which federal laws prevail over conflicting provincial laws.

With this approach, the Court recognized a legal pathway within the Canadian constitution for Indigenous laws to be valid within Canada’s constitutional structure. This creates a promising precedent for legislative and other law-making initiatives by Indigenous peoples in areas beyond child and family services.

WHAT’S NEXT 

Now presents an opportune time for Nations to assert their inherent jurisdiction and embark on crafting child and family services laws that align with their enduring legal orders. Alongside many others, we share the goal of Indigenous Nations to re-establish and maintain jurisdiction over their children and families as they have done since time immemorial, with the ultimate aim of eradicating the presence of Indigenous children within the provincial welfare system.

While this decision marks a tremendous victory for reconciliation, we acknowledge there is still much work ahead, and we stand in solidarity with Indigenous peoples across Canada in continuing to move it forward.  

WANT MORE

Our Indigenous Law Group includes specialists in child and family services, and we are honored to assist Nations in asserting their jurisdiction over these services in a way that reflects their identity and values.  

If you have any questions or comments related to the above, please reach out to Joelle Walker, Nick Smith, or Iain Thomas of our Indigenous Law Group. 

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[1] Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, at para. 91.

[2] Ibid, at para 76.

[3] Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, at para. 37 citing Murray-Hall v. Quebec (Attorney General), 2023 SCC 10, at para. 22, citing Reference re GeneticNon-Discrimination Act, 2020 SCC 17, [2020] 2 S.C.R. 283, at para. 26

[4] Ibid, at para. 39 citing References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, at para. 51, citing Desgagnés Transport Inc. v. Wärtsilä Canada Inc., 2019 SCC 58, [2019] 4 S.C.R. 228, at para. 31

[5] Ibid, at para. 41.

[6] Supra note 1, at para 87.

[7] Supra note 1, at para. 90 citing J. Leclair, “Zeus, Metis and Athena: The Path Towards the Constitutional Recognition of Full-Blown Indigenous Legal Orders” (2023), 27:2 Rev. Const. Stud. 77; cf. H. Cyr, Canadian Federalism and Treaty Powers: Organic Constitutionalism at Work (2009), at pp. 37-38; see also J. Borrows, Revitalizing Canada’s Indigenous Constitution: Two Challenges”, in UNDRIP Implementation: Braiding International, Domestic and Indigenous Laws (2017), 20).