Supreme Court of Canada rules that Bill C-92 as a whole is constitutional

Canada’s highest court has ruled that An Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24 (the “Act”) as a whole is constitutionally valid.[1]

Overview of the Act

As further set out in a previous blog post, the Act affirms that the inherent right of self-government recognized and affirmed by Section 35 of the Constitution Act, 1982 (the “Constitution”) includes jurisdiction in relation to Indigenous child and family services (“CFS”) and establishes a framework through which Indigenous communities may exercise their legislative authority over CFS. The Act also establishes national minimum standards for how CFS must be provided to Indigenous children.

In the four years since the Act became law in Canada, numerous Indigenous communities have passed their own CFS laws under the Act’s framework, and more are expected to do so in the foreseeable future.

Quebec’s constitutional reference

After the Act was enacted in 2020, the Attorney General of Quebec referred the question of its constitutional validity to the Quebec Court of Appeal – more specifically, whether the Act is ultra vires Parliament’s jurisdiction under the Constitution. Almost exactly two years ago today, the Quebec Court of Appeal found the Act to be constitutionally valid except for Sections 21 and 22(3), the provisions which provide for paramountcy of Indigenous CFS laws over conflicting or inconsistent provincial laws. The Quebec Court of Appeal also found that Indigenous peoples’ right of self-government in relation to CFS is protected under Section 35 of the Constitution.[2] Both the Attorney General of Quebec and the Attorney General of Canada appealed this decision to the Supreme Court of Canada.

SCC decision

On February 9, 2024, the Supreme Court of Canada (the “SCC”) released its much-anticipated decision. It held the entirety of the Act is constitutionally valid, as it falls squarely within Parliament’s legislative jurisdiction over “Indians, and Lands reserved for Indians” under Section 91(24) of the Constitution. The SCC held in pith and substance, “the Act protects the well-being of Indigenous children, youth and families by promoting the delivery of culturally appropriate child and family services and, in so doing, advances the process of reconciliation with Indigenous peoples.”[3] Based on intrinsic and extrinsic evidence, the Court held the Act protects the well-being of Indigenous children, youth and families in three interwoven ways:

  1. It affirms Indigenous communities’ jurisdiction in relation to CFS
  2. It establishes minimum standards applicable across Canada for how CFS must be provided to Indigenous children
  3. It implements aspects of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) in Canadian law

The SCC held that Parliament’s affirmation regarding Indigenous peoples’ jurisdiction over CFS did not unilaterally amend Section 35 of the Constitution – the division of powers and the separation of powers do not prevent Parliament from stating in the Act its position on the content of Section 35.

The SCC also explained Parliament has the power to referentially incorporate provisions from the laws of other entities, provided the law that incorporates them is constitutionally valid. The Court held Parliament, through Section 21 of the Act, validly incorporated Indigenous CFS laws into federal law, thereby validly giving them the force of federal law. The Court also held Parliament may affirm that Indigenous laws will prevail over other laws – Section 22(3) is “simply a legislative restatement of the doctrine of federal paramountcy,” under which the provisions of a valid federal law prevail over conflicting or inconsistent provisions of a provincial law.[4]

In terms of legal effects of the Act, the SCC explained the Act’s affirmation of the right of self-government and the express statement in the Act that it is binding on the Crown in right of Canada or of a province binds Canada to its position and the Crown must also act in accordance with its position. As a result of this affirmation and binding statement, Canada cannot assert in any discussions that there is no Indigenous right of self-government in relation to CFS. The Court held that “the Crown must take a broad approach to the interpretation of this right.”[5] Importantly, it is possible that a province may not agree with Parliament’s affirmation and challenge the scope of the rights recognized and affirmed by Section 35 of the Constitution. The SCC found it unnecessary in this case to determine the correctness of Parliament’s position regarding the scope of Section 35, although it held: “The importance of this affirmation will undoubtedly also be a factor to consider when the courts are called upon to formally rule on the scope of s. 35.”[6]

As for practical effects, the SCC noted that the affirmation “may in part be viewed as a step toward changing or adjusting the culture underlying the actions of the federal and provincial governments” and may “help to inculcate new attitudes or approaches that will further promote a culture of respect for and reconciliation with Indigenous peoples in Canada.”[7]

Further, while the SCC noted that child protection in the Indigenous context has a double aspect which causes it to fall under both federal and provincial heads of power, the Court rejected that any one level of government should have exclusive authority in the area, and instead emphasized the importance of cooperation in the area, which has been illustrated in the past by Jordan’s Principle. The Court also held the incidental effects of the national minimum standards on the provinces’ exercise of their powers have no impact on the constitutional validity of the Act and the provinces are therefore validly bound by the standards.

The Court noted the Act was an innovative effort by Parliament to honour its commitments related to UNDRIP and the Truth and Reconciliation Commission’s Calls to Action, and that it represents “a significant step forward on the path to reconciliation.”[8]

Looking forward

The Act specifically addresses the overrepresentation of Indigenous children in the child welfare system and the harm that has been caused to Indigenous children and their families, and recognizes the importance of keeping Indigenous children connected to their families and communities. The affirmation “of the vitality of Indigenous peoples’ legislative authority in relation to child and family services” made by Parliament and binding on the Crown has a reconciliatory purpose. It is hoped that this affirmation and the minimum national standards, as part of the larger framework for reconciliation, will help remedy the harm that has been caused, create a foundation for a renewed nation-to-nation relationship regarding CFS between the different levels of government, ensure respect for the dignity of Indigenous children, support the well-being of Indigenous children and families and strengthen Indigenous communities.

How we can help

MLT Aikins has a team of lawyers with experience assisting Indigenous communities with taking back control over CFS and drafting their own CFS laws. We are happy to assist Indigenous communities at all stages of community consultation, drafting, passing and implementing their CFS laws, as well as negotiating coordination agreements and setting up their own service providers. Indigenous communities can access government funding to support their CFS journey, including to explore their readiness to exercise their inherent jurisdiction over CFS and make their own CFS laws. Contact us to learn more.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.

[1] Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 [SCC Decision].

[2] Renvoi à la Cour d’appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis, 2022 QCCA 185.

[3] SCC Decision, supra note 1 at para 41.

[4] Ibid at para 131.

[5] Ibid at para 66.

[6] Ibid at para 117.

[7] Ibid at para 81.

[8] Ibid at para 134.