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

  • January 16, 2023
  • Patrick Szabo

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.