- An Act respecting First Nations, Inuit and Métis children, youth and families—formerly known as Bill C-92, now “the Act” for short—received Royal Assent on June 21, 2019. The Act came into effect on January 1, 2020 and recognized First Nations own authority in relation to child and family services.
- The Act affirms that First Nations have an inherent right to self-government, including jurisdiction over child and family services.
- The provincial government of Quebec challenged the Act in the Quebec Court of Appeal in September 2021, arguing it was unconstitutional for the federal government to disrupt provincial authority over public service.
- The Assembly of First Nations (AFN) and the Assembly of First Nations Quebec-Labrador (AFNQL) intervened in the Quebec government’s challenge. The AFN and the AFNQL argued that First Nations have always had a right to self-government based on the sovereignty outlined in Section 35.
- The Quebec Court of Appeal upheld most of the AFN and the AFNQL’s rationale, with the exception of some specific nuances in the Act relating to First Nations laws taking priority over provincial laws.
- The federal government of Canada has now decided to appeal the decision.
An Act respecting First Nations, Inuit and Métis children, youth and families (“the Act”) was formerly known as Bill C-92 when introduced to Parliament on February 28, 2019. Co-drafted by the Assembly of First Nations (AFN), the legislation has three aims:
- Affirm the inherent right of self-government, which includes jurisdiction in relation to child protection and family law
- Set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children
- Contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples
The Bill received Royal Assent on June 21, 2019, and the Act came into effect on January 1, 2020. It affirmed First Nations’ right to self-government, including the authority to legislate child protection and family laws. The Act also states that First Nations who exercised this authority would have the same level of force as federal law and would prevail in the event of inconsistency or conflict with provincial law.
The Government of Quebec challenged the constitutionality of the Act with a process known as a “reference” in the Quebec Court of Appeal. The Court proceedings took place in September 2021. The provincial government disagreed that the federal government can affirm First Nations’ jurisdiction over child and family services without a supporting treaty, tri-partite self-government agreement, or an amendment to the Constitution.
The Assembly of First Nations (AFN) and the Assembly of First Nations Quebec-Labrador (AFNQL) intervened in the Quebec government’s challenge. The AFN and the AFNQL argued that First Nations have always had an inherent right to self-government.
The Court issued its decision on February 10, 2022. It upheld much of the Act, although it struck two provisions in the legislation. The Court agreed that the right to self-government for First Nations falls within Section 35, including jurisdiction over child and family services. The Court’s reasoning was that child and family services oversight is an Aboriginal right tied to cultural continuity and survival. This right prevails unless there is a compelling public objection.
The Court struck Section 21 from the Act, which provided that First Nation law would have the “force of law as federal law.” This section was stricken because, according to the Quebec Court of Appeal, it altered the structure of the Constitution and was therefore ruled unconstitutional. In short, the Court of Appeal is of the view that First Nations laws are not enactments of federal government and could not be provided with such level of authority.
The Court also struck Section 22.3, which provided that First Nations law would prevail in the event of inconsistency or conflict with provincial law. This section was stricken on the basis that the federal government cannot give absolute priority to First Nations laws over provincial law. The Court of Appeal stated that this the role of the courts.
Overall, the decision recognizes and re-affirms First Nations’ jurisdiction over child protection and family laws based on the inherent right to self-government. However, one negative implication is that the decision undermined sections of the Act that allow First Nations laws to take priority over provincial law in the area of child and family services. In cases where First Nations laws are challenged by other governments, though, the criteria would be very strict to overrule in favour of the province. Where First Nations laws are not in place, provincial laws on child and family services can still apply to those communities.
The Government of Canada has now decided to appeal the decision.
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