Authored by: Jack Jones, Tayana Simpson, Berry Hykin and Liam McGuigan
After more than a year of waiting, the Supreme Court of Canada (SCC) has issued a unanimous decision holding that the Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 (Act) is constitutional, upholding the right of Indigenous peoples to exercise jurisdiction over their own child and family welfare services, and supporting legislative recognition of self-government and Indigenous jurisdiction as a path to reconciliation.
The Act came into force in 2020 and recognizes the universal right of Indigenous self-governance and jurisdiction over child and family services and imposes national standards for delivery of child and family services to Indigenous children and families. Significantly, in sections 21 and 22(3), the Act gives Indigenous laws respecting child and family services the force of federal law and makes them paramount over conflicting provincial laws.
The Attorney General of Quebec brought a reference case before the Quebec Court of Appeal (QCCA) seeking to strike the Act down in its entirety. Quebec argued the Act was unconstitutional by interfering with provincial powers over child and family services and and by creating a third order of government (Indigenous governments). The QCCA allowed the appeal in part, finding the Act constitutionally valid except for sections 21 and 22(3) – the provisions giving the force of federal law and paramountcy to Indigenous laws. The SCC has now overturned the QCCA ruling, holding that the entire Act is constitutional and falls within Parliament’s legislative jurisdiction under 91(24) of the Constitution Act, 1867.
In making its ruling, the SCC noted the Act:
- is directly in keeping with Canada’s commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP);
- is responsive to the calls to action of the Truth and Reconciliation Commission of Canada;
- is responsive to the calls to justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls; and
- specifically addresses the harm caused to Indigenous children and their families.
Legislative History and Context
The creation of the Act came as a result of ongoing efforts of Indigenous groups to push the Canadian government to move from a policy of assimilation towards a policy of reconciliation. Following the Sixties Scoop and the residential school program in Canada, the child welfare system “became a site of assimilation and colonization by forcibly removing children from their homes and placing them with non‑Indigenous families” (Report on MMIWG, vol 1a, at p. 282). As stated by the SCC, “about 7.7 percent of children under the age of 15 in Canada are Indigenous, but they represent 52.2 percent of children in foster care in private homes” (para 11).
The Truth and Reconciliation Commission (the “TRC”) Calls to Action called upon the federal government to create “Aboriginal child-welfare legislation that enacts national standards for Aboriginal child apprehension and custody cases”. The TRC also called upon governments to adopt UNDRIP in its entirety. In 2016, the federal government made a commitment to support and implement UNDRIP and in 2021 passed the UNDRIP Act. .
Parliament enacted the challenged legislation in collaboration with Indigenous peoples and governments, in part, to uphold its commitments relating to UNDRIP, and respond to the calls of the TRCs. As stated by the SCC, “Under this framework created by the Act, Indigenous governing bodies and the Government of Canada will work together to remedy the harms of the past and create a solid foundation for a renewed nation‑to‑nation relationship in the area of child and family services, binding the Crown in its dealings with the country’s Indigenous peoples”.
Summary of the Key Findings at the SCC
The SCC used the established two-step analysis to determine that the Act was validly enacted pursuant to a federal head of power: identifying the “pith and substance” of the law, and then classifying it by reference to the heads of powers under ss. 91 and 92 of the Constitution Act (provincial and federal heads of power).
Pith and Substance
The SCC decided that “the Act protects the well‑being of Indigenous children, youth and families by promoting the delivery of culturally appropriate child and family services and, in so doing, advances the process of reconciliation with Indigenous peoples. This is the Act’s pith and substance, which flows from the purpose and effects of this legislation” (para 41).
The SCC found that the purpose and effect of the Act is to protect the well‑being of Indigenous children, youth and families in the three interwoven ways, and is squarely within the federal legislative powers in relation to indigenous peoples. The purposed of the Act are to:
- affirm the inherent right of self‑government, which includes jurisdiction in relation to child and family services;
- set out principles applicable, 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.
These three purposes are identified by the SCC as three strands of a braided rope that constitute a specific framework for reconciliation when it comes to Indigenous child and family services.
The SCC ruled that legal effects of the Act also follow these three strands of the braid, with provisions that fall into three categories:
- affirming the right of self‑government;
- establishing national standards; and
- setting out concrete implementation measures.
Taken together, the provisions in these three categories create a uniform national scheme for protecting the well‑being of Indigenous children, youth and families.
The SCC spent considerable time discussing the constitutionality of sections 8(a) and 18(1). These provisions affirm that the Indigenous right of self‑government in relation to child and family services is within the scope of rights protected by s. 35 of the Constitution Act. When combined with section7 which binds His Majesty, the effect of this affirmation s is to prevent the federal government from asserting that there is no Indigenous right of self‑government in relation to child and family services.
Classification under s. 91(24) of the Constitution Act, 1867
The Attorney General of Quebec argued that the pith and substance of ss. 1 to 17 is to dictate, through the adoption of minimum national standards, how provincial jurisdiction over child protection is to be exercised in relation to Indigenous children and that this unconstitutional because it encroaches into provincial powers.
The SCC rejected this position, holding that Parliament can bind the Crown in right of the provinces in areas of federal jurisdiction. The SCC found that minimum national standards are within federal jurisdiction and can accordingly be binding on the provincial governments. While the provinces are generally “the keeper[s] of constitutional authority over child welfare” (under s. 92(13) and (16)), the federal government also has jurisdiction to legislate in relation to child and family services for Indigenous children (under 91(24)). The SCC pointed to Jordan’s Principle as an example of the necessity of cooperation in this area, and highlights that “far from interfering with provincial initiatives, the national standards appear to be largely complementary to them” (paras 98-100).
The Act does not amend the Constitution
The SCC also ruled that the Act is not a unilateral amendment of the Constitution. The Attorney General of Quebec argued that s. 8(a) and 18(1) were unilateral amendments to the Constitution and needed provincial approval. The SCC ruled that the words “affirm” and “includes” in ss. 8(a) and 18(1) do not convey any intention to amend s. 35, nor could they have this effect. Instead, they “state as a fact” Parliament’s position on the scope of s. 35. The SCC is clear that “Parliament, like the legislatures, can enact legislation that affirms its position on the meaning of the Constitution.”
Discussing s. 21 of the Act, the SCC overturned the QCA with respect to whether federal legislation enacted under s. 91(24) of the Constitution Act, 1867 can give an Indigenous law the force of law as federal law. The SCC ruled that section 21 of the Act simply incorporates Indigenous laws by reference and can validly bestow them with the force of federal law.
Similarly, the SCC ruled that s. 22(3) is simply a legislative restatement of the doctrine of federal paramountcy and does not alter the architecture of the Constitution. Under the doctrine of federal paramountcy, the provisions of a valid federal law prevail over conflicting or inconsistent provisions of a provincial law. Since the Indigenous laws that are incorporated by reference will have the force of federal law, this section is simply a restatement of that judicial doctrine.
Conclusion
This decision from the SCC is a major step forward in the recognition of Indigenous laws and legal orders within the Canadian legal system. The Court recognized the Act as an innovation of “legislative reconciliation”, braiding together three systems of legal norms – Indigenous, Canadian and international – into “a single, strong rope” that can avoid the uncertainty and delay of proving Aboriginal rights on an individual basis, and can skip over years, if not decades of litigation. While the Court determined it was not necessary to decide on whether s. 35(1) affirms a broad and generic inherent right to self-government, this decision leaves a path open to the possibility in future.
In the meantime, and most importantly, as the SCC states, the Act (and this decision recognizing its constitutionality) “allows Indigenous groups and the Crown to use their time and resources to focus on the actual substance of the issue: caring for children”.