Supreme Court of Canada Ruling
The Supreme Court of Canada (“SCC”) released its decision on February 9, 2024, regarding the constitutionality of An Act Respecting First Nations, Inuit and Métis Children, Youth, and Families (the “Act”). The SCC held that the Act in whole is constitutional, including two provisions relating to federal force of law and paramountcy that the Quebec Court of Appeal previously found unconstitutional. The SCC endorsed the creativity of the co-drafted legislation as a viable alternative to affirm the Inherent Right of First Nations and other distinctions-based rights-holders, noting that constitutional amendments and Treaty settlements are slow and uncertain processes. The SCC was clear that Parliament was well within its constitutional purview to affirm Indigenous Peoples’ right to self-government and jurisdiction over child and family services were rights protected by virtue of s. 35 of the Constitution Act, 1982.
This is a landmark ruling. The SCC acknowledged that Canada’s constitutional framework allows for various pathways for First Nations’ Inherent Rights to be recognized. For far too long, provinces and territories have held up or obstructed this recognition, as seen in past constitutional discussions during Meech Lake and the Charlottetown Accord. First Nations will no longer be hindered by unwilling provincial partners in the exercise of their Inherent rights, laws, and jurisdiction.
Background information
The Act was co-drafted with the AFN and received Royal Assent on June 21, 2019. It came into force as of January 1, 2020, providing a pathway for First Nations to exercise their legislative authority in relation to child and family services. The purpose of the Act includes affirming the inherent right of First Nations to self-government, which includes jurisdiction over child and family services. The Act also provides that legislation passed by First Nations who exercise their authority in accordance with the provisions of the Act has the force of federal law and would prevail in the event of inconsistency or conflict with provincial laws.
The Government of Quebec challenged the constitutionality of the Act, launching a constitutional reference at the Quebec Court of Appeal which was heard in September 2021. Part of that challenge was in regard to the federal government’s ability to assert that First Nations, Inuit, and Metis Peoples have jurisdiction over child and family services without a Treaty or an amendment to the Constitution. The Quebec Attorney General also argued that the Act inappropriately impacted Quebec’s authority to regulate public services.
The AFN, as a co-drafter of the Act, intervened in the reference. The AFN argued that First Nations have always maintained their inherent right self-government, never abrogating their jurisdiction over their children and families. For First Nations, this right is tied to their original sovereignty over their territory and is enshrined in section 35 of the Constitution. The Quebec Court of Appeal accepted this approach in relation to child and family services, subject to some nuances, holding that the right to self-government relating to child and family services falls within section 35 because it is a form of Aboriginal right, intimately tied to cultural continuity and survival. This right prevails unless the federal or provincial government can demonstrate a compelling public objective, which aligns with the Crown’s obligations associated with the honour of the Crown.
Next steps on implementation
It is now undisputed that federal, provincial, and territorial governments must acknowledge First Nations jurisdiction and that First Nations child welfare laws will prevail over conflicting provincial laws. Provinces and territories must work with First Nations to support the implementation of First Nations children and family laws through meaningful engagement and coordination between respective programs and services in accordance with First Nations models.
First Nations remain well positioned to build and strengthen their children and family care systems to deliver the care needed for First Nations children, youth and families. First Nations are ready to collaborate with provinces and Canada as partners in this journey of reconciliation to build enduring relationships based on trust and mutual recognition.
The federal government must provide sustainable and adequate statutory funding for First Nations to exercise their jurisdiction and establish their own laws – without this, the promise of the Act will not be realized.
All provinces and territories must honour and respect the rights of First Nations, including those who have established their own child welfare laws under the Act or are in the process of exercising their jurisdiction. This applies to Quebec and every other province as First Nations jurisdiction extends to wherever our children and families are living and is not bound by the confines of provincial borders.