Canada: Appeal Court Rules Indigenous Peoples Have A Constitutionally Protected Right Of Self-Government Over Child And Family Services

A recent Quebec Court of Appeal decision has affirmed the constitutionality of Indigenous peoples' right to self-government over child and family services, and may signal a trend of Canadian courts showing greater respect for Indigenous rights.

On February 10, 2022, the Quebec Court of Appeal (the "Court") issued a decision on the constitutionality of Bill C-92: An Act respecting First Nations, Inuit and Métis children, youth and families  (the "CFS Act").  The CFS Act is federal legislation that codifies the right of Indigenous governing bodies to enact their own legislation regulating child and family services pursuant to their inherent jurisdiction.

The CFS Act

In recognition of the systemic discrimination and chronic underfunding of child and family services to Indigenous people, various reports and inquiries have recommended placing the design and implementation of culturally appropriate child and family services in the hands of Indigenous communities. The CFS Act was developed to implement these recommendations.

The CFS Act received Royal Assent on June 21, 2019, and came into force on January 1, 2020. It recognizes the rights of Indigenous communities and groups to develop policies and laws governing child and family services based on their particular histories, cultures and circumstances. The CFS Act also establishes national standards for a minimum level of service that must be provided when any Indigenous child receives child and family services, regardless of who the service provider is.

Province of Quebec's Argument

The Province of Quebec challenged the constitutionality of the CFS Act, arguing it infringed upon the exclusive jurisdiction of the provinces over child welfare and public service matters by dictating how services should be provided to Indigenous children. The Province also argued that the CFS Act intrudes on the court's jurisdiction in granting the right of Indigenous self-government and creates a third level of government not contemplated in the Constitution Act, 1867.

Federal Government's Argument

The Attorney General of Canada argued the CFS Act is constitutional because the purpose of the Act is to protect Indigenous children and families, and Indigenous affairs fall within federal jurisdiction.

Court's Decision

The Court accepted the Federal Government's argument that the CFS Act falls within federal jurisdiction as it ensures the wellbeing of Indigenous children by fostering culturally appropriate services to reduce their overrepresentation in provincial child welfare systems. In doing so, the Court rejected the Province's argument that the CFS Act infringes on provincial authority over public services, holding that the national standards are general standards and not operational requirements dictating how public servants should deliver child and family services.

The Court also determined that Indigenous peoples' right of self-government in relation to the regulation of child and family services is a form of Aboriginal right protected under Section 35 of the Constitution Act, 1982. It is a right that extends to all Indigenous peoples because it is intimately tied to their cultural continuity and survival and cannot be dissociated from their Indigenous identity and cultural development.

Therefore, the CFS Act was held to be valid and constitutional, with the exception of sections 21 and 22(3), discussed below.

Sections 21 and 22(3) provide that when an Indigenous governing body enacts legislation in relation to child and family services, the legislation has the force of law as federal law and will prevail over any conflicting or inconsistent provincial legislation. In other words, child and family services legislation enacted by First Nations would hold paramountcy over provincial laws.

The Court held that only enactments of the federal government can hold paramountcy over provincial laws in case of a conflict, and this paramountcy cannot extend to laws created by Indigenous communities. This means that, similar to other Aboriginal rights, provincial laws can infringe on an Indigenous law if the Province can justify the infringement under the Section 35 impairment and reconciliation test established in R. v. Sparrow.

What This Could Mean for the Future

Indigenous communities can validly enact their own child and family services legislation pursuant to the CFS Act, and although Indigenous laws were not granted paramountcy over provincial laws in this case, it is often difficult for provinces to justify infringement of Aboriginal rights under the Section 35 impairment and reconciliation test. Further, Indigenous peoples' right to self-government extends to child and family services, so a community asserting this right before a Court would not have to prove this right.

This decision is binding on Courts in Quebec and is persuasive in other provinces. Whether other provinces will object to the application of the CFS Act or adopt the approach of the Court is yet to be seen.

It should also be noted that the Court applied the United Nations Declaration on the Rights of Indigenous Peoples to its interpretation of Section 35. This is the first time a Canadian court has done this, indicating a trend toward greater respect for Indigenous rights.

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