In a significant decision released on February 9, 2024 – Reference re An Act respecting First Nations, Inuit and Métis children, youth and families – the Supreme Court of Canada recognized the constitutionality of the federal Act respecting First Nations, Inuit and Metis children, youth and families, S.C. 2019, c. 24, formerly known as Bill C-92 (the “Act”). In doing so, the Court advanced the ability of Indigenous communities to protect and promote the well-being of their children, youth, and families through the delivery of culturally-appropriate child and family services.
Given the dire over-representation of Indigenous young people in Canada’s child welfare systems as well as the established and harmful propensity of these systems to remove Indigenous children from their communities, the Court’s ruling is a welcome development. That said, the Court declined to take a rare opportunity to clarify the law relating to section 35 of the Constitution Act, 1982 by recognizing the inherent Indigenous right to self-govern, including in relation to child and family services.
This case started as a reference submitted by the government of Quebec to the Quebec Court of Appeal. Quebec asked the Court of Appeal whether the Act was outside of Canada’s constitutional jurisdiction, given the Act’s implications for the property and civil rights of individuals, which fall within the jurisdiction of the provinces (s. 92(13) of the Constitution Act, 1867). With the exception of two provisions, the Court of Appeal found the Act constitutional, finding that it fell within federal jurisdiction as it related to “Indians, and lands reserved for the Indians” (s. 91(24) of the Constitution Act, 1867). Quebec and Canada each appealed the decision. Quebec sought to broaden the findings of unconstitutionality. Canada sought to have the Act recognized as constitutionally compliant in its entirety.
The Supreme Court sided with Canada, finding that Parliament had validly exercised its constitutional power to enact laws relating to “Indians, and lands reserved for the Indians” (s. 91(24)). In allowing Canada’s appeal, the Court found there was no constitutional impediment to Parliament’s incorporation of Indigenous laws in the Act. As a result, the Act will work to establish national standards, and to give Indigenous peoples control of the child welfare processes applying to their children, youth, and families.
Despite the invitation of Canada and numerous interveners, the Court chose not to wade into the question of whether s. 35 protects the inherent Indigenous right of self-governance. The Quebec Court of Appeal had delved deeply into this question, concluding that the Act correctly recognized that s. 35 protects the right of Indigenous peoples to self-govern in relation to child and family services. The Court found instead that the Act was an expression of Canada’s position that such a right exists. Adopting a very restrained approach to determining this reference, the Court decided not to decide the issue that had been fully argued before it. It found that “the correctness of the position stated by Parliament with respect to the scope of s. 35 does not have to be determined to answer the question asked by the Attorney General of Quebec” (para. 111).
Though not strictly necessary – in a legal sense – to the determination of the reference, it was open to the Court to affirm that s. 35 protects the inherent right of self-governance. This could have represented a significant advancement in Canada’s path toward reconciliation. The Court instead took a conservative approach, studiously declining to avail itself of a fulsome record and thoughtful submissions. As a result, the Court has missed an opportunity to provide guidance regarding a proposition that many view as self-evident: self-governance over core areas of communal existence, like raising and protecting children, must be part of the rights affirmed by s. 35. Though the Act now makes self-governance a mandatory pillar of the child welfare system, it does so without the weight of constitutional imperative. The Act remains vulnerable to changes in government and attrition by court challenges.
Despite a missed opportunity to affirm the right of Indigenous peoples to self-govern in the core area of child welfare, this decision removes obstacles in the way of important legislation. The Act is a step toward developing a multi-juridical child welfare system, where Indigenous peoples decide how best to protect their next generations.
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Jessica Orkin and Natai Shelsen, along with Cheryl Milne, appeared on behalf of the David Asper Centre for Constitutional Rights, which intervened in the case.