Indigenous child welfare Act is constitutional, says Supreme Court of Canada

Posted on February 19, 2024 in Child & Family Policy Context

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February 12, 2024.   by Madison Edward-Wright

Canada’s highest court has unanimously ruled that First Nations, Métis, and Inuit rights to self-government include jurisdiction over child and family services, throwing out the attorney general of Quebec’s 2022 appeal.

The Supreme Court of Canada has ruled that an Act Respecting First Nations, Inuit, and Métis Children, Youth, and Families (Bill C-92), which Parliament passed in 2019, is constitutional and not beyond Parliament’s jurisdiction as was claimed by the attorney general of Quebec in an appeal from 2022.

Section 35 of the Canadian Constitution affirms and recognizes Indigenous peoples’ right to self-govern. Bill C-92 additionally affirmed that the right to self-govern included “jurisdiction in relation to child and family services,” meaning Indigenous communities have sole authority over the care of their children.

The attorney general of Quebec initially argued in the Court of Appeal of Quebec that because Bill C-92 gives Indigenous communities exclusive authority over their children, it must be unconstitutional as child care falls under provincial jurisdiction and any change would require a broadening of the scope of s. 35 of the Constitution.

In its unanimous decision published on the morning of February 9, the Supreme Court explained that the Act is also well within Parliament’s jurisdiction because “the Act involves protecting the well‑being of Indigenous children, youth and families by promoting the delivery of culturally appropriate child and family services and, in so doing, advancing the process of reconciliation with Indigenous peoples.”

Quebec takes issue with Bill C-92

In February 2022, the Court of Appeal of Quebec found that s. 22 of Bill C-92 made Indigenous “laws absolute in relation to provincial laws.” Despite s. 35 of the Constitution Act, 1982, the Court argued Parliament does not have the power to make First Nations, Métis, and Inuit law supersede provincial law. The Court of Appeal’s decision also referenced subsection 24 of s. 91 of the Constitution, saying that “Parliament cannot use its authority […] to restrict or broaden the scope of s. 35 of the Constitution Act.”

Quebec’s argument boils down to an issue of jurisdiction that many provinces have echoed. By affirming First Nations, Métis, and Inuit communities’ total rights to govern and care for their children, Parliament allegedly infringed on provinces’ exclusive jurisdiction over child and family services.

The attorney general of Quebec argued that the unilateral attempt to confirm Indigenous communities’ complete autonomy over child welfare forced a broadening of the scope of s. 35 of the Constitution without following the right procedures.

Articles 1-17 of Bill C-92 “were adopted without real consultation with the provinces even though members of parliament are aware that provinces are responsible for child welfare, and that many of the provinces, including Quebec, have adapted their models so that they recognize Indigenous realities,” wrote the attorney general of Quebec in French in a submission to the Supreme Court.

An intervention by the Assemblée des Premières Nations Québec-Labrador (APNQL) and the Commission de la Santé et des Services Sociaux des Premières Nations du Québec du Labrador (CSSSPNQL) stated in French that “many generations of children and families have suffered and continue to suffer the abuses of a state system that is not adapted to their reality and their needs.”

“The punitive and judicialized approach of the province, showcased by the Youth Protection Act, is incompatible with First Nations’ goals and aspirations,” the intervention continued. “The attorney general of Quebec admits that First Nations children are overrepresented in the youth protection system in Quebec and across Canada, which constitutes a threat to their language, cultural continuity, and the identities of First nations children and communities.”

What Bill C-92 means for Indigenous communities

While under the supervision of provincial governments, foster care systems across the country have experienced a disproportionate rise in the number of First Nations, Métis, and Inuit children entering care.  In 2021, Indigenous children made up about eight per cent of the population in Canada between the ages of zero and 14 but represented 53.8 per cent of children from the same age range in foster care.

The foster care system in Canada has also been linked to the ongoing missing and murdered Indigenous women, girls, and 2SLGBTQI+ people crisis. The abuse and isolation that Indigenous children face in the foster care system leave them vulnerable to further abuse and exploitation.

Bill C-92 aims to address the ongoing crisis Indigenous children are facing by turning their care over to the people who know them best: their communities.

In response to the Supreme Court’s decision to uphold Bill C-92, the First Nations Child & Family Caring Society published a statement by its executive director Cindy Blackstock that celebrated the “protection of the wellbeing of First Nations, Inuit, and Métis children, youth, and families.”

“Now it is up to the provincial, territorial and federal governments to make sure they provide the resources and supports needed for First Nations, Métis and Inuit children and youth to grow up safely at home, get a good education, be healthy and proud of who they are,” Blackstock wrote.

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