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Supreme Court upholds federal Indigenous child welfare legislation: Analysis of Reference re An Act respecting First Nations, Inuit, and Métis Children, Youth, and Families, 2024 SCC 5

Exploring the Legal Ruling and its Affirmation of an Indigenous Right of Self-Government

On February 9, 2024, the Supreme Court of Canada released its reasons for judgment in Reference re An Act respecting First Nations, Inuit, and Métis children, youth, and families, 2024 SCC 5. In a unanimous decision, the Court held that the entirety of the Act respecting First Nations, Inuit, and Métis children, youth, and families (the “Act”) is constitutional.

Quebec’s challenge to the Act

The Act, which came into force in 2020, affirms that Indigenous peoples have an inherent right of self-government recognized by section 35 of the Constitution Act, 1982, including the right to make and enforce laws about child and family services. The Act also establishes a framework for implementing Indigenous laws and sets out national standards applicable to the provision of child and family services to Indigenous children and families.

Quebec challenged the constitutionality of the entire Act in a reference to the Quebec Court of Appeal. The Court of Appeal released its decision in February 2022, upholding the majority of the Act but finding that two provisions—which gave Indigenous laws the force of federal law and rendered them paramount over conflicting provincial laws—were outside of Parliament’s jurisdiction. Quebec appealed, arguing that the whole Act should be found unconstitutional. Canada also appealed, arguing in favour of the Act’s constitutionality.

The Supreme Court’s decision

The Supreme Court of Canada recognized the harms caused to Indigenous communities by Canada’s history of assimilationist colonial policies, including residential schools and the Sixties Scoop, as well as the “staggering” problem of the overrepresentation of Indigenous children in child welfare systems. In highlighting the close connection between the cultural continuity of Indigenous peoples, and keeping Indigenous children in their communities, the Court remarked:

It is no coincidence that the Crown targeted Indigenous children when, at the height of its imperialism, it was seeking to destroy Indigenous cultures (para. 113).

The Court emphasized that the Act was developed in collaboration with Indigenous groups as part of an effort to address these issues, as well as to implement the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) in Canada, and in response to the calls to action of the Truth and Reconciliation Commission.

The Court found that while such an approach may be unusual, it is open to Parliament to declare its position on the existence and scope of an inherent/s. 35 right in a statute. As the Court noted at para. 17:

Taking legislative measures of this kind has been described as being part of a process that some have termed “legislative reconciliation”, that is, the enactment of legislation “to respect, promote, protect, and accommodate inherent rights through mechanisms or frameworks elaborated upon within the statute” (see N. S. W. Metallic, “Aboriginal Rights, Legislative Reconciliation, and Constitutionalism” (2023), 27:2 Rev. Const. Stud. 1, at p. 5). In other words, legislation of this kind does not purport to be the source of the rights in question, but rather proceeds on the premise that these rights exist. Similar initiatives have also been described as “recognition legislation” …

Parliament’s “legislative commitment” to recognize the right to Indigenous jurisdiction over child and family services in the Act, means that “the federal government can now no longer assert, in any proceedings or discussions, that there is no Indigenous right of self‑government in relation to child and family services” (para. 62).

Importantly, the Court found that Parliament’s legislative approach to reconciliation was “in keeping with its commitments” relating to UNDRIP (para. 19), which the Court confirmed has been “incorporated into the country’s domestic positive law” (para. 4) through the federal UNDRIP Act. Moreover, it offers practical advantages, including avoiding expensive and protracted litigation and negotiation processes.

The Court also held that Parliament is free to referentially incorporate Indigenous child and family services laws, giving them the force of federal law and ensuring that they prevail over conflicting provincial laws. Finally, the Court confirmed that the national standards set out in the Act apply to provincial child and family service providers across Canada.

The decision to uphold the Act as constitutional will enhance the ability of Indigenous governments to exercise greater control over how child and family services are provided to their communities, whether they choose to enact their own laws, negotiate agreements regarding the provision of services to their children and families, or ensure that existing service providers deliver services in manner compliant with the standards and principles set out in the Act.

Ratcliff intervened on behalf of Maa-nulth Nations

Ratcliff lawyers Lisa Glowacki, and Natalia Sudeyko were proud to represent the First Nations of the Maa-nulth Treaty Society (the “Treaty Society”) as interveners before the Supreme Court of Canada. The Treaty Society promotes the modern treaty interests of the five First Nation signatories of the Maa-nulth Final Agreement. Over the past several years, Maa-nulth First Nations have been working towards implementing their jurisdiction, improving services for their children and families, and continuing to address the harms caused to their communities by colonial policies and practices.

A link to the full decision can be found here:

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