The Court of Appeal for Québec has stymied the federal government’s efforts to respond to the overrepresentation of Indigenous children in the child and youth protection system. On February 10, 2022, the Court held that key sections of the federal government’s Act respecting First Nations, Inuit and Métis children, youth and families (the “Act”) were unconstitutional. The Act seeks to ensure that Indigenous children are provided with a minimum level of services and enables Indigenous governing bodies to develop child welfare solutions. While the Court found that there is an “Aboriginal right” to self-government over child and family services affirmed by section 35 of the Canadian Constitution (the “Constitution”), the Court struck down sections 21 and 22(3) of the Act which provided actual self-determination over these issues. The Court’s ruling leaves us with a contradiction: it affirms the existence of the right to Indigenous self-government but strikes down the provisions of the Act that enabled this right to be exercised in a meaningful way.

A Look at the Act

The Act was co-developed by the federal government and Indigenous partners, and came into full force and effect on January 1, 2020. It seeks to affirm the right of Indigenous peoples to exercise jurisdiction over child and family services and by extension further the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) in Canada. The Act also sets out “national standards” that ensure a minimum level of services for all Indigenous children.

Under the Act, Indigenous governing bodies can either adopt their own laws in relation to child and family services, or request to enter into a coordination agreement with federal and provincial governments. Prior to the Court’s decision, sections 21 and 22(3) provided that Aboriginal laws adopted through a coordination agreement had the same force of law as federal laws and prevailed over any conflicting or inconsistent provisions of applicable federal or provincial laws.

The Controversy

Two weeks after coming into force, the Government of Québec asked its Court of Appeal to rule on whether the Act is unconstitutional. The Attorney General of Québec argued that the Act infringes on the province’s general jurisdiction over child welfare and unilaterally modifies the scope of section 35, threatening the structure of the Constitution. Canada responded that the matters under the Act fall under the broad scope of the federal government’s authority over Indigenous peoples under section 91(24) of the Constitution and that the Act’s interpretation of section 35 is consistent with the case law.

Constitutionality of the Act

The Court’s constitutional analysis focused on two elements: the constitutionality of the national standards and the right of Indigenous self-government in the regulation of child and family services. The Court concluded the Act is constitutional, except for sections 21 and 22(3).

On the first element, the Court held that section 91(24) grants the federal government jurisdiction over the well-being of Indigenous peoples and their interpersonal relationships. The Act falls squarely within this jurisdiction as its purpose is to “[ensure] the well-being of [Indigenous] children, by fostering culturally appropriate services to reduce their overrepresentation in provincial child welfare systems” (para. 34). The Court also found that the Act does not dictate how provinces must provide child and family services within Indigenous spaces, as the national standards are compatible with provincial child welfare legislation.

Ultimately, Québec’s position that the Act offends principles of federalism and democracy was rejected.

The Court’s assessment of the second element found that Indigenous peoples have always maintained a form of self-government flowing from original sovereignty. The Court traced the historical right of self-governance, holding that the Act is compatible with the notion of Canadian sovereignty, as the record fails to demonstrate any evidence of the extinguishment of the Aboriginal right. Relating the right back to child and family services, the Court stated that:

“The central purpose of s. 35 is to effect reconciliation and preserve a constitutional space for Aboriginal peoples so as to allow them to live as peoples—with their own identities, cultures, and values—within the Canadian framework. As a normative system, Aboriginal customary law relating to children and families forms part of those values. Moreover … children and families are the main channel for conveying the markers of Aboriginal identity. Regulation of child and family services by Aboriginal peoples themselves cannot be dissociated from their Aboriginal identity and cultural development” (at para. 48).

The Aboriginal right to self-government over child and family services is not distinguished by the federal and provincial division of powers – it extends to all Indigenous peoples due to its importance to cultural continuity and survival.

Striking Out Sections 21 and 22(3)

Despite the overall constitutionality of the Act, the Court identified problems with sections 21 and 22(3). In conjunction, the two provisions allowed for Indigenous laws developed under coordination agreements to have the same status as federal legislation and legislated primacy of these laws over provincial legislation. The Court found that this was unconstitutional because it altered the architecture of the Constitution, and it was outside the jurisdiction of the federal government to allow Indigenous laws to prevail over conflicting provincial laws. This principle – known as “federal paramountcy” – is only applicable to validly enacted federal laws.

Additionally, the federal government did not have the power under the Constitution to confer absolute priority on a section 35 Aboriginal right. The constitutional principle of coordinated governments prevents the federal government from legislating every aspect of the provinces’ dealings with Indigenous peoples. Moving forward, provincial legislation cannot displace legislation that an Indigenous governing body has enacted, pursuant to their Aboriginal right of self-government over child and family services, unless the provincial legislative scheme satisfies the long-standing section 35 impairment and reconciliation test.

Without the operation of sections 21 and 22(3), no apparent incentive remains for Indigenous governing bodies to negotiate or enter into coordination agreements. Indigenous governing bodies may elect to simply inform federal and provincial governments of their intent to exercise legislative authority in respect of child and family services.

One Step Forward, Two Steps Back

The Court of Appeal’s decision is ripe with contradictions that are counterproductive to furthering Indigenous self-government. On the one hand, the Court emphasized that the parliamentary intent behind the Act was “clearly to break with the past” by providing Indigenous peoples with the “flexibility and functional independence” to choose their own solutions (at paras. 17-18). The ruling confirmed that Indigenous communities can create their own legislation to protect and improve the lives of Indigenous children. The Court also noted that the legislative process behind the Act was guided by UNDRIP and that at the international level, UNDRIP affirms the existence of the right to Indigenous self-determination. In affirming an Aboriginal right of self-government in relation to child and family services, both currently and historically, the Court brought its decision in line with UNDRIP. On the other hand, the Court struck down the very provisions conferring paramountcy and actual self-determination, that aligned with the principles of UNDRIP and marked a break from the past.

Reactions to the decision have been similarly divided. In a joint press release, the Assembly of First Nations Québec-Labrador and the First Nations of Québec and Labrador Health and Social Services Commission (“FNQLHSSC”) stated that their First Nation communities will exercise their legislative and inherent right to implement their own child welfare legislation. On January 17, 2022, the Loi de la protection sociale atikamekw d’Opitciwan (the Atikamekw Social Protection Law of Opitciwan) entered into force and about fifteen communities will follow in their footsteps. The President of the FNQLHSSC’s Board of Directors, Derek Montour, stated that they call on the Québec government to actively collaborate with their communities and organizations for optimal application of Bill C-92 and the adoption of Indigenous laws. It is likely that a negotiated approach to implementing Indigenous child welfare laws will be the best approach to ensure the well-being of Indigenous children.

Where does this leave Indigenous self-government? An out-of-province appellate decision is, at the most, persuasive on British Columbia courts. It is also likely an application for leave to appeal will be made to the Supreme Court of Canada. Indigenous Services Minister Patty Hadju said that Ottawa is committed to upholding its Indigenous child welfare law and will work to ensure First Nations people have autonomy over Indigenous child welfare, but time will tell. Stay tuned for future updates about this decision and its treatment.

Want More?

Indigenous children remain overrepresented in the child and youth protection system due to discriminatory practices in providing child and family services, deficiencies in funding structures, and sizeable jurisdictional gaps stemming from disputes between the federal and provincial governments. Learn more about these issues and the recent class action settlement of child welfare claims in Canada here.

If you have any questions or comments relating to the above, feel free to reach out to Merle Alexander, QC, or Joelle Walker.