Awaiting the Supreme Court of Canada’s Decision: Where Things Stand in the Reference on Indigenous Child and Family Services

The overrepresentation in youth protection systems of Indigenous children throughout this country is an unquestionable reality that has been decried by various commissions of inquiry, Indigenous communities, and decision-makers. In 2019, Parliament adopted An Act respecting First Nations, Inuit and Métis children, youth and families (“the Act”), more commonly known as Bill C-92, in an attempt to address this troubling issue and advance reconciliation with Indigenous peoples.

In short, the Act has two main prongs. First, the Act creates national standards for the provision of any child and family service in relation to Indigenous children. Particularly, the Act provides that primary consideration must be given to the child’s best interest and the child’s cultural ties. Moreover, child and family services provided in relation to an Indigenous child must be guided by Indigenous cultural continuity, and the Act mandates an order of placement priority to help preserve cultural ties for Indigenous children.

Second, the Act recognizes and affirms an “inherent right of [Indigenous] self-government." The Act further recognizes and affirms that this right is entrenched in section 35 of the Constitution Act, 1982 and that it includes Indigenous jurisdiction in relation to child and family services. The Act then provides a framework for the exercise of this jurisdiction and allows Indigenous governing bodies to make and amend their own legislation with respect to child and family services. Where this right is exercised (through an Indigenous governing body), the Act states that the Indigenous legislation prevails over any conflicting or inconsistent federal or provincial law (except the Canadian Human Rights Act and sections 10 to 15 of the Act). The Act gives the force of federal law to these Indigenous laws, which makes them paramount to provincial laws.

The Act was immediately challenged by the Government of Quebec, which submitted a reference to the Court of Appeal of Quebec asking whether the Act was ultra vires the jurisdiction of Parliament under the constitution.[1] The Attorney General of Quebec argued that the national standards introduced by the Act were unconstitutional under the division of powers. The Attorney General of Quebec further contended that section 35 of the Constitution Act 1982 does not recognize a generic right to Indigenous self-government and that the Act attempts to make an unconstitutional addition to the rights protected by section 35.   

On the question of the creation of national standards, the Court of Appeal broadly interpreted Parliament’s jurisdiction over Indigenous people and opined that the pith and substance of the Act is to “protect and ensure the well-being of Aboriginal children, families and peoples by promoting culturally appropriate child services, with the aim of putting an end to the overrepresentation of Aboriginal children in child services systems." In the Court’s view, the national standards seek to ensure Indigenous cultural continuity and are entirely within the federal jurisdiction over “Indians” under section 91 of the Constitution Act, 1867. The Court further noted that the standards were compatible with Quebec’s youth protection legislation and had only incidental effects on Quebec’s authority over provincial public services.

The Court then reviewed the constitutionality of the provision of the Act providing that section 35 of the Constitution Act, 1982 recognizes and affirms an inherent right of self-government, including jurisdiction in relation to child and family services. To date, the Supreme Court has not clearly ruled on the existence or the content of an Indigenous right to self-government under section 35. Nevertheless, after a detailed review of case law and crown-Indigenous historical context, the Court of Appeal of Quebec took the position that Indigenous people have maintained “a form of self-government that flows from their original sovereignty over the territory," recognized at common law and subsequently entrenched in section 35.

In light of this finding, the Court looked at the contours of this right to self-government in order to establish whether it included a right to self-regulate Indigenous child and family services. Drawing on case law and sociocultural and historical evidence, the Court reasoned that the regulation of child and family services comes within reach of an  element of Indigenous practices, traditions, and customs. Consequently, the Court held that self-regulating child and family services is an existing and generic right under section 35, extending to all Indigenous peoples. The Court noted that, at first glance, the framework and limits set out in the Act appear to be consistent with the right for Indigenous peoples to regulate child and family services.

The Court, however, took issue with the mechanism used by Parliament in the Act. Under the doctrine of paramountcy, federal legislation that is irreconcilable with provincial legislation can prevail because it reflects a national interest. By seeking to extend this doctrine to the exercise of Indigenous self-government, the Court found that the Act was ultra vires the constitutional architecture. In the Court’s view, Indigenous legislation under section 35 is separate and distinct from federal legislation made under Parliament’s jurisdiction. Consequently, an Indigenous law could prevail over federal or provincial legislation as a result of section 35, but not as a result of the provisions of federal legislation. The provision giving Indigenous child and family services laws the force of federal law was said to be unconstitutional as a result.

Furthermore, in the Court’s view, federal legislation cannot dictate the framework to resolve conflicts between Indigenous and provincial legislation. Such conflicts must be resolved within the constitutional framework, not by federal legislation. The provision stating that an Indigenous child and family services legislation prevails over a provincial law was also said to be unconstitutional.

Both the Attorney General of Canada and the Attorney General of Quebec appealed the Court of Appeal’s decision to the Supreme Court. The Supreme Court heard arguments from both parties and various interveners in December 2022. Until a decision is issued, uncertainty looms over the constitutional validity of Indigenous legislation on child and family services and its interaction with provincial legislation.

About the Author

Patrick Szabo is Counsel at the Office of the Ontario Ombudsman.

The views expressed are those of the writer and do not necessarily represent the views or opinion of the Office of the Ontario Ombudsman.

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