The Supreme Court of Canada Declares An Act Respecting First Nations, Inuit and Métis Children, Youth and families Constitutional

On appeal from the Quebec Court of Appeal, the Supreme Court of Canada has concluded in a decision authored by the entire Court that An Act respecting First Nations, Inuit and Métis children, youth and families is constitutionally valid in its entirety.[1]

In 2019, federal Parliament adopted the Act, then referred to commonly as “Bill C-92” to address the overrepresentation of Indigenous youth in child and family services, advance reconciliation with Indigenous peoples, and practically implement Canada’s adoption of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”). The Act itself has two main elements. First, the Act creates national standards for the culturally appropriate 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 a mandatory order of priority to preserve cultural ties is established for the placement of 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), and has the force of federal law.

The Supreme Court’s decision reverses the Quebec Court of Appeal’s decision, which had deemed sections 21 and 22(3) (sections that give laws made by Indigenous groups, communities, or peoples the force of federal law, and makes those laws paramount to provincial law in cases of conflict or inconsistencies) unconstitutional. In coming to this conclusion, the Court engaged a two-stage analysis, which first identified the pith and substance, and effects of the Act to determine its main purpose, and secondly considered its context within sections 91 and 92 of the Constitution Act, 1867, where the division of provincial and federal authority is set out.

At the first stage of its analysis, the Court found the purpose of the act is to protect the well-being of Indigenous children, youth, and families by promoting the delivery of culturally appropriate child and family services, and in so doing, advance reconciliation. The Court found that the Act does so in three interwoven ways: by affirming Indigenous communities’ jurisdiction regarding child and family services, by establishing national standards for culturally appropriate Indigenous child and family services across Canada, and by implementing the UNDRIP. The Court determined that the practical and legal effects of the Act emphasize and supplement that purpose.

In its analysis of the effects of the Act, the Court affirmed Parliament’s right to reaffirm in the Act its position that section 35 of the Constitution Act, 1982 recognizes a right of self-government for Indigenous people. However, the Court declined to rule on whether or not section 35 actually contains this right, leaving it open to future, potential legal challenge.

At the second stage of its analysis, the Court found that Parliament’s enactment of the Act falls squarely within its jurisdiction to make laws regarding “Indians, and Lands reserved for the Indians”, under section 91(24) of the Constitution Act, 1867. The Court confirmed Parliament’s right to bind the provincial Crown, stating that this is an area demanding cooperation between both levels of government, and that both federal and provincial legislation can apply concurrently as supplemental to one another. The Court further added that the federal standards set out in the Act provide significant discretion and flexibility to provincial lawmakers.

The Court directly addressed the Quebec Court of Appeal’s ruling of unconstitutionality of sections 21 and 22(3) of the Act. The Court firstly found that section 21, which gives Indigenous legislation the force of federal law, is simply “incorporation by reference”, as it incorporates by reference future laws adopted by Indigenous groups, communities, or peoples. This in and of itself is a constitutionally valid drafting technique used frequently by legislative bodies, but there may be future legal challenges regarding specific enactments. The Court found that section 22(3), which provides that Indigenous legislation prevails over provincial legislation where there is a conflict or inconsistency, is merely a restatement of the widely understood principle of federal paramountcy, where federal law prevails over provincial law. The Court concluded that neither of these sections alter the architecture of the Canadian Constitution, as the Quebec Court of Appeal previously concluded.

With the Court confirming the constitutional validity of the Act, its federal framework for Indigenous child and family services will continue to be in place, as it has been since the Act came into force on January 1, 2020. Twenty Indigenous groups in Ontario have already provided the federal government notice of their intentions to exercise the powers within the Act of independently legislating child and family services, making this an interesting unfolding area to watch.

About the author

Ethan Radomski is Counsel with 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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