Indigenous Peoples' Right Of Self Government In Light Of The Supreme Court Of Canada's Decision In The Reference On Bill C-92

• Published date: 27 March 2024
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Trials & Appeals & Compensation, Indigenous Peoples
• Law Firm: Langlois Lawyers, LLP
• Author: Ms Caroline Briand, Julie Paré and Jeanne Pérès

On February 28, 2019, Parliament tabled Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families (the "Act"). Its purpose is to recognize and implement Indigenous peoples' right to use their own child and family services, based on the principles of cultural continuity, substantive equality and the best interests of the child. This legislative measure has been long awaited by Indigenous peoples and is deemed a much-needed solution to the over-representation of Indigenous children and youth in such services systems.

Upon its adoption, however, the Act was the subject of a reference as to its constitutional validity submitted by the Attorney General of Quebec to the Quebec Court of Appeal. Such references are used to submit important questions of law to the judgment of the Court, which then renders a non-binding opinion.

The Attorney General of Quebec submitted the question of whether the Act was ultra vires Parliament's jurisdiction under Canada's constitution. After analyzing the issue, the Quebec Court of Appeal held that the Act was constitutionally valid on the whole. However, it found that sections 21 and 22(3), which give priority to the legislation of an Indigenous group, collectivity or people over provincial laws, were invalid, as they exceeded Parliament's jurisdiction by unduly altering Canada's constitutional architecture.¹ The Attorney General of Quebec and the Attorney General of Canada both appealed from the Quebec Court of Appeal's decision.

On February 9, 2024, the Supreme Court of Canada (the "SCC") rendered one of its most anticipated decisions on Indigenous peoples' right of self‑government in relation to child and family services. The SCC rejected the first appeal and allowed the second.

In a unanimous judgment, the SCC confirmed the constitutional validity of a federal law, An Act respecting First Nations, Inuit and Métis children, youth and families,² adopted in 2019. The Act was developed in concert with the federal and provincial governments and Indigenous peoples. Its purpose is to ensure culturally appropriate child and family services by supporting Indigenous children and youth's continued connection to their families, communities, language and culture. In a context where a majority of the people in care in Canadian child welfare systems are Indigenous children and youth, the Act entrusts jurisdiction over child and family services to Indigenous governing bodies, who have the requisite latitude to adopt and implement laws adapted to Indigenous realities.

The SCC determined that the Act as a whole was constitutionally...