Self-Government in Peril: Commentary on the Quebec Court of Appeal’s Reference to An Act Respecting First Nations, Inuit and Métis Children, Youth and Families – Indigenous peoples

The Quebec Court of Appeal has obstructed the federal government’s efforts to address the overrepresentation of Indigenous children in the child and youth protection system. On February 10, 2022, the Court ruled that key sections of the federal government An Act respecting First Nations, Inuit and Métis children, youth and families (there “Law“) were unconstitutional. Law aims to ensure that Indigenous children receive a minimum level of services and enables Indigenous governing bodies to develop child protection solutions. Although the Court concluded that there is an “Aboriginal right” to self-government in child and family services, affirmed by section 35 of the Canadian Constitution (theConstitution“), the Court invalidated Articles 21 and 22(3) of the Law who provided
real self-determination on these issues. The Court’s decision leaves us with a contradiction: it affirms the existence of the right of Aboriginal self-government but annuls the provisions of the Law which has made it possible to exercise this right in a meaningful way.

A look at the Law

The Law was developed jointly by the federal government and Indigenous partners and came into force on January 1, 2020. It seeks to affirm the right of Indigenous peoples to exercise jurisdiction over child and family services and, by extension , to pursue the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP“) in Canada.
Law also establishes “national standards” that guarantee a minimum level of services for all Aboriginal children.

Under the Law, Aboriginal governing bodies can either pass their own laws regarding child and family services or seek to enter into a coordination agreement with the federal and provincial governments. Prior to the Court’s decision, Sections 21 and 22(3) provided that Indigenous laws passed under a coordination agreement had the same force of law as federal laws and prevailed over any conflicting or inconsistent provisions of the laws. applicable federal or provincial authorities.


Two weeks after its entry into force, the Government of Quebec is asking its Court of Appeal to rule on the question of whether the
Law is unconstitutional. The Attorney General of Quebec argued that the Law undermines the province’s general jurisdiction over child welfare and unilaterally alters the scope of section 35, threatening the structure of the Constitution. Canada responded that issues under the Law falls within the broad reach of the federal government’s authority over Aboriginal peoples under section 91(24) of the Constitution and that the LawThe interpretation of section 35 is consistent with case law.

Constitutionality of the Law

The Court’s constitutional analysis focused on two elements: the constitutionality of national standards and the right of Aboriginal peoples to self-government in the regulation of child and family services. The Court concluded the Law is constitutional, with the exception of sections 21 and 22(3).

On the first element, the Court held that subsection 91(24) grants the federal government jurisdiction over the welfare of Indigenous peoples and their interpersonal relationships. The
Law fully falls within this jurisdiction because its purpose is to “[ensure] the well-being of [Indigenous] children, promoting culturally appropriate services to reduce their overrepresentation in provincial child welfare systems” (para. 34). The Court also concluded that the Law does not dictate how provinces should provide child and family services in Indigenous spaces, as national standards are consistent with provincial child welfare legislation.

Ultimately, Quebec’s position that the Lawcontrary to the principles of federalism and democracy was rejected.

The Court’s assessment of the second element concluded that Aboriginal peoples have always maintained a form of self-government arising from original sovereignty. The Court traced the historic right to self-government, holding that the Law is compatible with the notion of Canadian sovereignty, because the record shows no proof of the extinction of the aboriginal right. Linking the law to child and family services, the Court said that:

“The central purpose of s. 35 is to achieve reconciliation and preserve constitutional space for Indigenous peoples to enable them to live as peoples – with their own identities, cultures and values ​​– within the Canadian framework As a normative system, Indigenous customary law relating to children and the family is part of these values, and the child and the family are the main vehicle for transmitting the markers of Indigenous identity. regulation of child and family services by Aboriginal people themselves cannot be divorced from their Aboriginal identity and cultural development” (at para. 48).

The Indigenous right to self-government in child and family services is not distinguished by the division of powers between federal and provincial – it extends to all Indigenous peoples because of its importance for cultural continuity and survival.

Deletion of sections 21 and 22(3)

Despite the general constitutionality of the Law, the Court identified problems with Articles 21 and 22(3). Together, the two provisions allowed Indigenous laws developed under coordination agreements to have the same status as federal legislation and the legislative primacy of those laws over provincial legislation. The Court found that it was unconstitutional because it changed the architecture of the Constitution and it was not within the jurisdiction of the federal government to allow Indigenous laws to prevail over conflicting provincial laws. This principle – known as “federal paramountcy” – applies only to validly enacted federal laws.

Furthermore, the federal government did not have the power under the Constitution to give absolute priority to an Aboriginal right under section 35. The constitutional principle of coordinated governments prevents the federal government from legislating over all aspects of provincial relations with Aboriginal peoples. In the future, provincial legislation cannot supersede legislation that an Indigenous governing body has enacted pursuant to its Aboriginal right of self-government over child and family services, unless the regime provincial legislation fails to meet the long-standing section 35 test of impairing impairment and reconciliation.

Without the application of sections 21 and 22(3), there remains no apparent incentive for Aboriginal governing bodies to negotiate or enter into coordination agreements. Indigenous governing bodies may choose to simply notify the federal and provincial governments of their intention to exercise legislative authority over child and family services.

One step forward, two steps back

The Court of Appeal’s decision is riddled with contradictions that run counter to the advancement of Aboriginal self-government. On the one hand, the Court pointed out that the parliamentary intention behind the Law was “clearly intended to break with the past” by providing Aboriginal peoples with the “flexibility and functional independence” to choose their own solutions (at paras. 17 and 18). The decision confirmed that Indigenous communities can create their own legislation to protect and improve the lives of Indigenous children. The Court also noted that the legislative process behind the Law was guided by UNDRIP and that at the international level, UNDRIP affirms the existence of the right to indigenous self-determination. By affirming an Indigenous right to self-government in child and family services, both presently and historically, the Court made its decision consistent with UNDRIP. On the other hand, the Court invalidated the very provisions conferring the primacy and real self-determination, which aligned with the principles of UNDRIP and marked a break with the past.

Reactions to the decision were equally divided. In a joint press release, the Assembly of First Nations Quebec-Labrador and the First Nations of Quebec and Labrador Health and Social Services Commission (“FNQLHSSC“) declared that their First Nations communities will exercise their legislative and inherent right to implement their own child welfare legislation. On January 17, 2022, the Opitciwan Atikamekw Social Protection Act (the Atikamekw d’Opitciwan Social Protection Act) came into force and about fifteen communities will follow in its footsteps. The Chairman of the FNQLHSSC Board of Directors, Derek Montour, stated that they ask the Government of Quebec to actively collaborate with their communities and organizations for an optimal application of Bill C-92 and the adoption of Indigenous laws. . It is likely that a negotiated approach to the implementation of Indigenous child welfare laws will be the best approach to ensuring the well-being of Indigenous children.

Where does that leave aboriginal self-government? A decision rendered on appeal from outside the province is, at best, persuasive to British Columbia courts. It is also likely that an application for leave to appeal will be made to the Supreme Court of Canada. Indigenous Services Minister Patty Hadju said Ottawa is committed to upholding its Indigenous Child Welfare Act and will work to ensure First Nations self-reliance in child welfare. native childhood, but time will tell. Stay tuned for future updates on this decision and its treatment.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

Teresa R. Cabrera

The author Teresa R. Cabrera