Indigenous peoples’ right of self government in light of the Supreme Court of Canada’s decision in the Reference on Bill C-92

On February 28, 2019, Parliament tabled Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families (the “Act”). Its purpose is to recognize and implement Indigenous peoples’ right to use their own child and family services, based on the principles of cultural continuity, substantive equality and the best interests of the child. This legislative measure has been long awaited by Indigenous peoples and is deemed a much-needed solution to the over-representation of Indigenous children and youth in such services systems.

Upon its adoption, however, the Act was the subject of a reference as to its constitutional validity submitted by the Attorney General of Quebec to the Quebec Court of Appeal. Such references are used to submit important questions of law to the judgment of the Court, which then renders a non-binding opinion.

The Attorney General of Quebec submitted the question of whether the Act was ultra vires Parliament’s jurisdiction under Canada’s constitution. After analyzing the issue, the Quebec Court of Appeal held that the Act was constitutionally valid on the whole. However, it found that sections 21 and 22(3), which give priority to the legislation of an Indigenous group, collectivity or people over provincial laws, were invalid, as they exceeded Parliament’s jurisdiction by unduly altering Canada’s constitutional architecture.¹ The Attorney General of Quebec and the Attorney General of Canada both appealed from the Quebec Court of Appeal’s decision.

On February 9, 2024, the Supreme Court of Canada (the “SCC”) rendered one of its most anticipated decisions on Indigenous peoples’ right of self‑government in relation to child and family services. The SCC rejected the first appeal and allowed the second.

In a unanimous judgment, the SCC confirmed the constitutional validity of a federal law, An Act respecting First Nations, Inuit and Métis children, youth and families,² adopted in 2019. The Act was developed in concert with the federal and provincial governments and Indigenous peoples. Its purpose is to ensure culturally appropriate child and family services by supporting Indigenous children and youth’s continued connection to their families, communities, language and culture. In a context where a majority of the people in care in Canadian child welfare systems are Indigenous children and youth, the Act entrusts jurisdiction over child and family services to Indigenous governing bodies, who have the requisite latitude to adopt and implement laws adapted to Indigenous realities.

The SCC determined that the Act as a whole was constitutionally valid, as its pith and substance, which are “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, to advance the process of reconciliation with Indigenous peoples”,³ are squarely within the powers of the Parliament of Canada under subsection 91(24) of the Constitution Act, 1867⁴, i.e. “Indigeneity or “Indianness”, that is, Indigenous peoples as Indigenous peoples.”⁵ The SCC also holds that the jurisdiction of the Parliament of Canada provides a solid basis for the affirmations in the Act to the effect that the laws of an Indigenous group, community or people take precedence over other laws in the event of a conflict.⁶ The SCC notes that incorporation by reference, as used in section 21 of the Act, is a recognized legislative technique and that subsection 22(3) of the Act is simply a legislative restatement of the doctrine of federal paramountcy.

In its decision, the SCC echoes the Court of Appeal’s manner of characterizing the reconciliation approach taken by the Act with respect to Indigenous children and families, noting that it is “unusual” for a statute to set out the scope or meaning of a constitutional provision,⁷ as Parliament does in section 18 of the Act. This section affirms that Indigenous peoples’ inherent right of self-government is recognized and confirmed by section 35 of the Constitution Act, 1982⁸ and includes the right to regulate child and family services. In addition, the SCC approves of the manner in which the Act weaves together three distinct legal avenues into one overarching purpose. First, the Act recognizes and affirms the legislative authority of Indigenous peoples in relation to child and family services, which is an inherent component of their right of self‑government. It then establishes the national standards pursuant to which these child and family services will be provided. Finally, it takes a big stride toward upholding the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) by encouraging the implementation of UNDRIP’s international standards in a Canadian context. By avoiding the lengthy and costly processes associated with constitutional litigation and negotiated settlements and instead adopting an innovative legislative initiative that promotes reconciliation,⁹ Parliament also responds to one of the calls to action of the Truth and Reconciliation Commission of Canada.¹⁰

Indigenous peoples’ right of self‑government

The Supreme Court analyzes the Act’s effects by examining the legal and practical effects of its provisions. It takes note of Parliament’s position that Indigenous peoples’ inherent right of self-government in relation to child and family services is recognized and protected by section 35 SC 1982.¹¹ The SCC explains that though the courts will ultimately determine the definitive interpretation of section 35 in the event that Parliament’s understanding thereof is challenged by a province or any other actor within the system, the affirmations the Act makes in respect of this section are effective, as they are made in a constitutionally valid statute.¹²

Consequently, one of the Act’s effects is to impose a constraint on the federal government, which may no longer assert in any proceedings or discussions that there is no Indigenous right of self‑government in relation to child and family services.¹³ The SCC adds that one of the legal effects that may flow from these provisions is that the Crown must act as if its honour were engaged. This means acting as if Indigenous peoples’ right of self-government in relation to child and family services is indeed recognized until such time as the courts rule on the question.¹⁴ The SCC also explains that the Parliament affirming a position on the meaning of a provision of the Constitution does not constitute an amendment to that provision.¹⁵

Regarding the Act’s practical effects, the SCC points out that proceeding through legislation rather than through the courts has undeniable benefits by lessening the burden on Indigenous peoples, who would otherwise have to use valuable time and resources to prove their ancestral rights.¹⁶ Interestingly, the SCC also anticipates the Act having an educational effect, noting that “the “unusual” use of affirmations of the right of self‑government can be explained in part by the fact that Parliament is attempting to persuade other institutions to adopt the position it has now embraced”.¹⁷                                                                                                                  

As to the validity of Parliament’s affirmations of the right of self‑government, the SCC considers that in the context of a reference, caution is in order. It is better to avoid needlessly taking a position on a point of constitutional law at the risk of prejudicing actual and future cases. The SCC is of the opinion that in this case, “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”¹⁸ in connection with this reference.

The SCC recalls having already noted, in Delgamuukw¹⁹ and Pamajewon²⁰, that “rights of self‑government, insofar as they exist, “cannot be framed in excessively general terms” and cannot extend to a matter … that is not an integral part of the distinctive culture of the First Nations [sic] in question”.²¹ The SCC also notes that it has never before ruled on a matter so fundamental for the culture and identity of Indigenous peoples as the area of child and family services.²² Finally, the question of characterizing the right of self-government as “generic”, i.e. as a fundamental right held by all Indigenous peoples in Canada as opposed to a right that is [translation] “specific to each Indigenous people and likely to vary from one people to another”,²³ may well be reflected in cases that allude to the collective dimension of the exercise of certain Indigenous rights.²⁴

When it comes to determining the existence of the right of self-government and its components, the concept of cultural continuity and its relationship to the subject matter claimed to be included in the right will certainly be considered.²⁵ The SCC reiterates that Indigenous culture is a major factor to consider in analyzing the scope of section 35, in that the section “serves to recognize the prior occupation of Canada by Aboriginal societies and to reconcile their contemporary existence with Crown sovereignty”.²⁶

While the Supreme Court ultimately leaves it up to the courts to rule on the scope and interpretation of section 35, it notes that Parliament’s affirmation in the Act of the existence of a right of self-government in relation to child and family services for Indigenous peoples will definitely be a factor to consider when the issue is formally ruled on.²⁷

__________

¹ Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 [overview].
² An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24.
³ SCC Judgment, at para 2.
⁴ Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5, at para 135 (the “SCC Judgment”).
⁵ Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.).
⁶ Ibid, at para 9.
⁷ Reference to the Quebec Court of Appeal regarding An Act respecting First Nations, Inuit and Métis children, youth and families, 2022 QCCA 185, at paras 514-515.
⁸ The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (“SC 1982”).
⁹ SCC Judgment, at paras 6-7.
¹⁰ Truth and Reconciliation Commission of Canada (rcaanc-cirnac.gc.ca).
¹¹ Ibid at para 60.
¹² Ibid, at para 61.
¹³ Ibid, at para 62.
¹⁴ Ibid, at paras 63-66.
¹⁵ Ibid, at para 110.
¹⁶ Ibid, at para 77.
¹⁷ Ibid, at para 81.
¹⁸ Ibid at para 111.
¹⁹ Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para 170.
²⁰ R. v. Pamajewon, [1996] 2 S.C.R., at paras 27-28.
²¹ SCC Judgment, at para 112.
²² Ibid, at para 112.
²³ R. v. Sioui, [1990] 1 S.C.R. 1025, at p. 1056; Delgamuukw, at paras 115 and 166; Nation Tsilhqot’in v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257, at para 75; R. v. March, [1999] 3 S.C.R. 533, at para 17; R. v. Nikal, [1996] 1 S.C.R. 1013, at para 104; R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686, at para 46.
²⁴ Reference to the Quebec Court of Appeal regarding An Act respecting First Nations, Inuit and Métis children, youth and families, 2022 QCCA 185, at para 48.
²⁵ SCC Judgment, at para 113.
²⁶ Ibid, at para 114: R. v. Desautel, 2021 SCC 17, at para 31.
²⁷ SCC Judgment, at para 117.