Canada's Highest Court Upholds Indigenous Jurisdiction

• Published date: 21 February 2024
• Subject Matter: Government, Public Sector, Constitutional & Administrative Law, Indigenous Peoples
• Law Firm: Miller Titerle + Company
• Author: Mr Nick Smith, Iain Thomas and Kelty McKerracher

On February 9, 2024, the Supreme Court of Canada ("SCC" or the "Court") released its decision Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5, ruling on the constitutionality of An Act respecting First Nations, Inuit and Métis children, youth and families (the "Act" or "Bill C-92").

The SCC held that the Act as a whole is constitutionally valid, representing a monumental victory for Indigenous rights and the affirmation of the United Nations Declaration of Indigenous Peoples ("UNDRIP" or the "Declaration"). The unanimous decision affirms that Canada's constitutional architecture is not a barrier to true reconciliation, but contains the possibility for renewal, redress, and even healing. Further, it ensures that reclaiming jurisdiction over child and family services through the process outlined under the Act remains a viable and important option for Indigenous peoples to address the devastating impacts of colonialism on Indigenous children and families.

PRACTICAL EFFECTS

The underlying intent and effect of the ruling is to encourage Canada, the provinces, and Indigenous peoples in our shared work of building the legislative structures and agreements needed for true reconciliation to occur - a reconciliation in which Canada's laws and Indigenous legal orders effectively co-exist, Indigenous peoples fully exercise their inherent right of self-government, and Canadians are educated about and appreciate and laws and legal authority of their hosts and constitutional partners.

In practical terms, the ruling that the Act is constitutional safeguards its continued application to protect the well-being of Indigenous children, youth and families and advance reconciliation with Indigenous peoples.¹ Additionally, the Act will serve to help avoid costly and time-consuming litigation over whether and to what extent an Indigenous group or people have jurisdiction in relation to child and family services.² Through its decision, the SCC affirmed that legislative initiatives, such as the Act, designed to advance reconciliation, are not only possible, but in many ways, advantageous.

BACKGROUND

The Act, which can be found here , received Royal Assent on June 21, 2019, and came into force on January 1, 2020. It is express in affirming that the inherent right of Indigenous peoples to self-government, recognized and affirmed by s. 35 of the Constitution Act, 1982, includes jurisdiction in relation to child and family...