Persistent uncertainty regarding the extent to which governments in Canada are prepared to recognize and give effect to Indigenous Peoples’ inherent laws and jurisdiction remains a serious barrier to decolonization and reconciliation. In December, the Supreme Court of Canada will consider this issue directly in the Bill C-92 Quebec Reference case. The Court will determine the constitutionality of federal legislation which affirms Indigenous Peoples’ right to regulate child and family services based on their inherent law-making authority. The decision will also have broader implications for the development of Aboriginal rights jurisprudence, including for Indigenous Peoples’ ability to make decisions based on their inherent laws.
Background -- Bill C-92
The historic and ongoing impacts of colonization on the wellbeing of Indigenous children and families cannot be overstated. Indigenous children remain disproportionately represented in foster care, and Indigenous Peoples continue to face discrimination in accessing appropriate funding supports for child and family services.
In 2019, the Government of Canada took a step towards addressing this issue through the introduction of Bill C-92, An Act respecting First Nations, Inuit and Metis Children, youth and families. The Act, which came into force in 2020, is aimed at addressing the overrepresentation of Indigenous children in child and family services systems. It affirms that Indigenous Peoples’ inherent right to self-government, as recognized and protected under section 35 of the Constitution Act, 1982, includes jurisdiction over the regulation of child welfare matters, and provides a framework for Indigenous Peoples to exercise that jurisdiction, including through negotiated arrangements with federal and provincial governments and the incorporation of Indigenous laws into federal legislation.
Quebec’s Constitutional Challenge
Quebec challenged the constitutionality of the Act at the Quebec Court of Appeal. Quebec argued the federal government does not have authority to enact legislation dictating how provincial governments deliver child and family services, and that Canada cannot unilaterally determine the scope of constitutional protections under section 35 of the Constitution Act, 1982.
The Quebec Court of Appeal issued its decision in February 2022. The Court upheld the majority of the Act, but struck out provisions which provided that Indigenous laws enacted within the framework contemplated under the legislation would prevail in the event of a conflict with a provincial law. The Court further affirmed that First Nations have a right to exercise jurisdiction regarding child and family services which is protected under section 35, and rejected Quebec’s argument that it was not open to Canada to legislate on rights which have not yet been determined by the courts.
Both Quebec and Canada appealed aspects of the Court of Appeal’s decision to the Supreme Court of Canada.
Bill C-92 at the Supreme Court
If upheld, the Court of Appeal’s decision to strike out provisions in the Act which provide that Indigenous laws will prevail over provincial laws in the case of a conflict could have serious, negative implications for Indigenous Peoples’ ability to exercise their inherent laws in respect of children and families. The Court of Appeal’s decision also includes findings which, if affirmed, could have tangible positive impacts for Indigenous Peoples and governments.
1. Parliament does not need to wait for a court decision to recognize and protect section 35 rights.
The Quebec Court of Appeal affirmed that it is open to Parliament to recognize and protect Aboriginal rights under section 35 through legislation or political action, regardless of whether those rights have been determined by the courts. The Court went on to note that the Crown has a proactive duty to delineate and give effect to those rights.
These principles are not novel – Canadian courts have long recognized that Aboriginal rights are protected, rather than created, by the Constitution Act, 1982. However, as Quebec’s arguments before the Court of Appeal demonstrate, governments still rely, implicitly and explicitly, on the position that Aboriginal rights must be recognized by Canadian courts in order to attract the full measure of constitutional protections contemplated under section 35.
The appeal provides an opportunity for the Supreme Court to clarify that section 35 rights can be recognized and protected absent a court proceeding, and that governments must take concrete steps to determine and protect those rights. This affirmation could play an important role in disincentivizing governments from relying on positions based on the denial of section 35 rights, and in turn, reduce the need for costly and protracted litigation to determine the nature and scope of those rights.
2. Aboriginal rights can exist on a generic, non-specific basis.
Since 1996, the Supreme Court’s landmark decision in R. v. Van der Peet has guided the courts’ approach to defining Aboriginal rights. In that case, the Court held that for an activity to attract constitutional protection under section 35, it must be “an element of a practice, custom or tradition integral to the distinctive culture” of the Indigenous group prior to the arrival of Europeans.
At the Quebec Court of Appeal, the Court held that the ability to exercise decision-making authority over child and family services is an intrinsic aspect of Indigenous Peoples’ culture and identity, even though it may not be based on the unique cultural practices of any one Indigenous group. The Court went on to affirm that all Indigenous Peoples hold a “generic” right to regulate child and family services, regardless of the specific practices of individual Indigenous groups prior to colonization.
At the upcoming appeal, the Supreme Court will again be asked to confirm that Indigenous Peoples have a “generic” right to exercise their inherent jurisdiction in respect of child and family services which is protected under section 35. Such confirmation could signal a shift in Canadian Aboriginal rights jurisprudence away from the rigid application of the Van der Peet factors towards a more flexible approach to rights determination based on the underlying purpose of section 35, being reconciliation of the prior existence of Indigenous societies with the assertion of Crown sovereignty.
3. Indigenous treaty parties can hold inherent, constitutionally protected rights to self-government.
Across the country, Indigenous treaty parties have consistently and repeatedly expressed that they never surrendered their inherent decision-making authority on entering into treaty with the Crown. At the same time, federal and provincial governments in Canada have proceeded on the basis that the Indigenous treaty parties relinquished the ability to exercise jurisdiction based on their own laws at the time of treaty.
The Act and the Quebec Court of Appeal decision recognize that all Indigenous Peoples hold a constitutionally protected right to exercise their inherent laws in relation to child and family services, regardless of whether or not they are party to a treaty. As such, the Act and the decision both implicitly affirm that Indigenous groups who are parties to Crown-Indigenous treaties can and do continue to hold rights based on their own law-making authority. If endorsed by the Supreme Court, the Act and the Court of Appeal decision could provide support for the Indigenous treaty parties’ understanding of the treaty relationship, including the position that the Indigenous treaty parties retained the right to exercise jurisdiction over their children and families based on their own inherent laws.
Looking Ahead
The Bill C-92 Reference is one of several appeals now before the Supreme Court which engage directly with the relationship between Indigenous Peoples’ inherent laws and the jurisdictional authority of federal and provincial governments. The decision will clarify whether and how the Supreme Court will recognize and protect Indigenous Peoples’ ability to regulate child and family services based on their own laws and cultures and, in turn, support Indigenous communities in healing from the devastating impacts of colonial policies advanced and supported by Canadian institutions.
*This essay is a modified version of Kate Gunn's article first published on the University of Calgary Faculty of Law’s ABlawg on September 20, 2022, available here.
First Peoples Law LLP is a law firm dedicated to defending and advancing the rights of Indigenous Peoples. We work exclusively with Indigenous Peoples to defend their inherent and constitutionally protected title, rights and Treaty rights, uphold their Indigenous laws and governance and ensure economic prosperity for their current and future generations.
Kate Gunn is partner at First Peoples Law LLP. Kate completed her Master's of Law at the University of British Columbia. Her most recent academic essay, "Agreeing to Share: Treaty 3, History & the Courts," was published in the UBC Law Review.
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