Quebec Court of Appeal recognizes right of Indigenous self-government in s. 35 of Constitution Act

In finding the Liberal federal government’s legislation on Indigenous child and family services mostly constitutional, the Quebec Court of Appeal has recognized that s. 35 of the Constitution Act contains the generic right for Indigenous self-government.

In its Reference to the Court of Appeal of Quebec Re the Act respecting First Nations, Inuit and Métis children, youth and families, the court found the federal government has jurisdiction to set national standards on Indigenous child and family services and that First Nations have an inherent right to govern in this area. But the court found two provisions unconstitutional which gave Indigenous law the same force-of-law as federal law and paramountcy over conflicting federal and provincial law.

Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families, received Royal Assent in June 2019. At the time, Indigenous Services Canada said the Act intended to keep “Indigenous children and youth connected with their families, communities and culture.” The law followed a 2018 commitment from Ottawa to address the over-representation of Indigenous children under state care. The 2016 census had found that, while constituting just 7.7 per cent of Canada’s overall child population, Indigenous children made up 52.2 per cent of all children in foster care.

Bill C-92 stood on two primary concepts: creating national standards for Indigenous child welfare and a recognition of the inherent right of Indigenous self-government, according to the Quebec Court of Appeal’s summary of its ruling.

Franklin Gertler acted for the Assembly of First Nations Quebec-Labrador in the court reference. Gertler prefaced his comments by saying he is still analyzing the more-than-200-page ruling and has yet to do all the necessary research. The court has found that First Nations have a constitutional right to legislate concerning their child-welfare systems, and any federal or provincial legislation infringing on that right has the burden of proving its restriction is constitutionally justified, he says.

“It was really a privilege to do the work,” Gertler says. “We developed thousands of pages of documentary evidence about the efforts of various communities to reflect on and conceive and put in place their own systems for supporting their families and children. There’s a great creativity that’s afoot in these places to rediscover or to invent ways of supporting families and children that are successful and appropriate, and positive.

“It’s going to be a testing ground for broader areas of governance.”

With the federal government currently talking about legislative action on health and policing, the court’s findings on Indigenous self-government are “huge,” says Naiomi Metallic, an assistant professor of law and chancellor’s chair in Aboriginal law and policy at Dalhousie University’s Schulich School of Law. Metallic was counsel to the intervenor, the First Nations Child and Family Caring Society.

“Seeing that right to self-determination and control as being fundamental to Indigenous wellbeing, cultural wellbeing political and social wellbeing… that’s all super important. It also sends a message that governments can be legislating in this area.”

“It’s a green light to continue in that direction, which I think is important.”

Bill C-92 gives legislative authority for child and family services to First Nations, which can establish their systems in one of two ways. Under ss. 20(1) and 20(2) of the Act, an Indigenous governing body, can inform the relevant governments that it intends to exercise this authority or request these governments agree to coordinate for that purpose. If the latter is pursued, ss. 21 and 22 dictate that Indigenous child-and-family-services laws have the same force-of-law as federal laws. According to the summary, these laws will also “prevail over any conflicting or inconsistent” federal or provincial law. However, an Indigenous law contrary to the child’s best interests is inapplicable. 

The Attorney General of Quebec argued the legislation intrudes on provincial jurisdiction over child welfare and that Indigenous governance can only be produced through agreements with governments, delegations of legislative powers or a constitutional amendment.

Section 35(1) of the Constitution Act, 1982 states that “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Quebec argued this section did not recognize a right to Indigenous self-government, and through Bill C-92, the federal government was unilaterally modifying the scope of s. 35(1), which is the proper role of the courts, not Parliament.

The Court of Appeal said there are two lines of cases with opposing views on whether s. 35 recognizes a generic right to Indigenous self-government. One finds such a right constitutionally incompatible with the Crown’s sovereignty and the division of legislative powers between the federal and provincial governments. This view holds Indigenous governance must be a legislative choice. The other approach says Indigenous peoples, having had sovereignty initially over their territory, have always had a form of self-government, which is now enshrined in s. 35.

The Court of Appeal found the second approach ought to be adopted. It based its conclusion on the autonomy and independence of Indigenous groups until the 19th century; the Supreme Court of Canada decisions in Calder et al. v. Attorney-General of British Columbia, R. v. Sparrow and Delgamuukw v. British Columbia, as well as political initiatives such as the Charlottetown Accord and the UN Declaration on the Rights of Indigenous Peoples and the “vast majority” of scholarship on the subject.

“They put all that together to say that the inherent right to self-government exists as common law, that it was constitutionalized in 1982, and that when it comes to the right to self-government in respect of Child and Family Services, this is in fact, a generic right that all Indigenous communities have. So that’s huge,” says Metallic.

The court found s. 21 of the Act, which states legislation enacted by the First Nation concerning child and family services has the force-of-law of federal law, was an attempt to apply the doctrine of federal paramountcy to Indigenous law. But doing so would alter “the fundamental architecture of the Constitution” and is beyond Parliament’s power. The same goes for s. 22(3), which had Indigenous laws prevail over conflicting or inconsistent provincial legislation.

The court found the Act constitutional, except for ss. 21 and 22(3).

The ruling does not mean that Indigenous laws would not be paramount over provincial laws — paramountcy would be the default — but the province would be able to argue that infringing those Indigenous laws would be justified under s. 35, using the Sparrow test, says Metallic.