Federal Indigenous legislation is constitutional: Parliament has authority to affirm Indigenous jurisdiction over child and family services

The Supreme Court of Canada has released its much-anticipated decision in Reference re An Act Respecting First Nations, Inuit, and Métis Children, Youth, and Families¹. The decision provides important guidance on the scope of Parliament’s ability to legislate in respect of Indigenous issues and the role of Indigenous law in Canada’s constitutional framework.

Torys acted for the Assembly of Manitoba Chiefs in connection with its intervention before the Court in this matter.

What you need to know

• Bill C-92 provides for Indigenous child and family services law to have the force of federal law.  Parliament passed Bill C-92, An Act Respecting First Nations, Inuit, and Métis Children, Youth, and Families in 2019. The Act established national standards for Indigenous child and family services, seeking to provide Indigenous peoples with more effective control over child welfare organizations. The Act also contained a mechanism whereby Indigenous-made law in respect of child and family services could be made to have the same force of law as federal law and, as a result, prevail over provincial law in the event of any conflict.
• Québec had asserted an issue regarding paramountcy. The Attorney General of Québec took the position that the law intruded into provincial jurisdiction and ordered a reference to its Court of Appeal. The Québec Court of Appeal upheld most of the law but found that the portions that provided for paramountcy of Indigenous laws over provincial laws exceeded federal jurisdiction.
• Bill C-92’s validity affirmed under the double aspect doctrine. The Supreme Court upheld the entire Act, holding that it fell within Parliament’s jurisdiction under section 91(24) of the Constitution Act, 1867 to pass legislation concerning Indigenous peoples. Incidental effects on the province’s jurisdiction did not impact the Act’s validity; the double aspect doctrine allows for both levels of government to legislate in the same areas.
• The Supreme Court upheld Parliament’s right to interpret section 35. While the Act affirmed that Indigenous peoples’ inherent right of self-government was recognized and affirmed by section 35 of the Constitution Act, 1982, the Court rejected Québec’s argument that this was an impermissible attempt to alter the Constitution. Parliament was simply affirming its interpretation of section 35 (which the Court did not comment on), but Parliament did not (and could not) amend section 35.
• Parliament can incorporate Indigenous laws into federal law. The Court held that it was open to Parliament to incorporate by reference Indigenous-made laws, and to affirm that these laws would prevail over provincial laws in the event of a conflict. This was simply a restatement of the doctrine of federal paramountcy.

Background

In connection with Canada’s efforts towards reconciliation with Indigenous peoples, Parliament passed Bill C-92, An Act Respecting First Nations, Inuit, and Métis Children, Youth, and Families². Bill C-92 was passed to further the framework for reconciliation established by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). UNDRIP provides that “Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal or local affairs”. This includes the right of Indigenous families and communities to retain shared responsibility for the upbringing and well-being of their children.

The federal United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIP Act) requires the Government of Canada, in consultation and cooperation with Indigenous peoples, to take “all measures necessary to ensure that the laws of Canada are consistent with the Declaration”³. Bill C-92 was passed to further Canada’s commitment to implement UNDRIP.

The content of the Act

Bill C-92 expressly affirmed that Indigenous peoples have an “inherent right of self-government, which includes jurisdiction in relation to child and family services”. In connection with this, the Act imposed national standards for the provision of child and family services for Indigenous children, which would be interpreted and administered in accordance with the best interest of the child while emphasizing cultural continuity and substantive equality.

The Act also established a framework for Indigenous peoples to enter into coordination agreements with the federal government whereby Indigenous laws related to child and family services would have the same force as federal law and would be paramount over provincial law to the extent there was a conflict.

The Québec Court of Appeal’s decision

After Bill C-92 was enacted, the Attorney General of Québec referred a question to the Québec Court of Appeal on whether the Act was ultra vires the jurisdiction of Parliament.

The Court of Appeal held that the Act was within Parliament’s legislative authority, except for the provisions providing that Indigenous laws could be given the force of federal law and be paramount over provincial law. The Court held that these provisions unilaterally and impermissibly altered the Constitution as these laws were not federal laws enacted under Parliament’s authority under section 91 of the Constitution Act, 1867, but rather were “Aboriginal laws that serve Aboriginal imperatives”.

Both the Attorneys General of Québec and Canada appealed the Court of Appeal’s decision to the Supreme Court of Canada.

The Supreme Court of Canada’s decision

In a unanimous decision, the Supreme Court held that all of Bill C-92 was constitutionally valid.

The Court concluded that the pith and substance of the Act was to protect the well-being of Indigenous children and families by promoting culturally appropriate services. As a result, the Court held that the Act fell squarely within section 91(24) of the Constitution Act, 1867, which provides federal authority to regulate “Indians and Lands reserved for the Indians”. The law was therefore intra vires Parliament.

The Court examined the Attorney General of Québec’s objections that the Act had impermissibly altered Canada’s constitutional structure by amending the scope of section 35 of the Constitution Act, 1982 and creating a third level of government. The Court rejected this, holding that the Act simply stated Parliament’s view that section 35 of the Constitution Act, 1982 provides for a right to self-government, which the Court made clear it was neither endorsing nor rejecting.

The Court concluded that the mechanism contained within the Act, by which Indigenous laws could be given the force of federal law and made paramount over provincial laws, was a valid exercise of legislative authority, provided that the Indigenous laws remained within Parliament’s authority. The Court held that this approach is constitutionally permissible, even for Indigenous laws that have not yet been enacted. However, the Court noted that it will always be the Court, and not Parliament, that is the ultimate arbiter of when paramountcy applies.

Key takeaways

This decision endorsed Parliament’s efforts to advance reconciliation with Indigenous Peoples. In doing so, the Court showed a willingness to embrace creative legislative exercises by Parliament designed to support causes within its legislative authority.

However, the Court sidestepped key issues such as the recognition of inherent Indigenous rights of self-government and the scope of section 35 of the Constitution Act, 1982. Some parties had hoped that the Court would use this decision to bring the Court’s own framework of analysis under section 35 in line with UNDRIP. UNDRIP recognizes that Indigenous people have an inherent right of self-government over their own affairs. This is quite different from the Court’s analysis of section 35. In its decisions to date on this issue, the Court has not recognized an inherent right of self-government, and has instead required Indigenous peoples to prove that they have rights on a case-by-case basis, based on historical evidence showing that a particular activity was important to them at the time of European contact. We expect that these issues will come before the courts again in the near future.

The Court noted the basis of Bill C-92 in the UNDRIP Act, whose purposes are to affirm that UNDRIP is “a universal international human rights instrument with application in Canadian law” and to set out “a framework for the Government of Canada’s implementation of the Declaration”. It requires Canada to take all measures necessary to align its laws with UNDRIP. Because the Supreme Court decision concerned Bill C-92—which Parliament passed to further Canada’s commitment under the UNDRIP Act—it does not resolve outstanding uncertainty as to whether and how UNDRIP should be applied in other contexts where legislative reform has not yet occurred.