The Court of Appeal of Quebec has ruled that most of the federal government’s child welfare law called an Act respecting First Nations, Inuit and Métis children, youth and families (Bill C-92) is constitutional.
The federal child welfare bill came into effect on Jan. 1, 2020, but was challenged by the province of Quebec over jurisdictional issues.
“A victory for what the federal government was trying to do, for the jurisdiction of First Nations, Inuit, and Metis peoples,” says David Taylor, a lawyer for First Nations Child and Family Caring Society of Canada, one of the organizations that proved Canada discriminated against First Nations children living on reserve at the Canadian Human Rights Tribunal.
“But not a knock-out blow.”
The court ruled that “The Act is constitutional, except for ss. 21 and 22(3), which are not,” leaving the door open for Quebec to challenge any Indigenous child and family laws that it feels conflict with current provincial laws.
As Taylor explains, the federal government hoped that Bill C-92 would create First Nations, Inuit, and Métis legislation “that has the force of federal law” to override provincial law when it comes to creating family and child services laws. But the court of appeal disagrees.
However, Taylor adds that it won’t be easy for Quebec to just overrule any Indigenous child and family laws it doesn’t agree with because the ruling also strongly endorses Indigenous self-governance as defined under Section 35 of the Constitution where “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”
“If there are Federal or Provincial laws that conflict with that self-governance, then that level of [federal or provincial] government better be able to justify it,” adds Taylor.
Taylor says that the upshot is that now Indigenous governments in Quebec can use C-92 as a framework to create their own laws.
“This is a significant change from the position that Quebec was articulating which is to say ‘no, every single First Nation in Quebec needs to negotiate a self-government agreement with us in order to do this,’” he says.
Finally, Taylor said Thursday’s ruling sets a precedent going forward.
“The court of appeal had a lot of evidence in front of it about the harms that the current system has wrought on First Nations, Inuit, and Métis children and families and very much was cognizant of that and accepted that evidence and I think gave it a lot of significance in its analysis and I think that’s something that if it were to go up to the Supreme Court of Canada, I think they would have it before it as part of the record,” says Taylor.
“Essentially, there’s a problem with the status quo and if the provincial governments are defending the status quo they’re going to have to have awfully good reasons given all the harms on which this legislation and litigation itself were founded.”
In a statement to APTN News, Patty Hajdu, Canada’s minister of Indigenous Services, says her department is taking time to study the 200-page decision and that “…our commitment remains absolute – supporting and recognizing First Nations, Inuit, and Metis jurisdiction over child and family services should they wish to exercise it.”
The attorney general of Quebec declined to comment, stating that they are in the process of reviewing the decision. They have 30 days to appeal.
The Assembly of First Nations Quebec-Labrador says they “welcome” the judgment and will also take the necessary time to review its contents before providing a detailed reaction.
“The process towards the application of our right to self-determination is already well underway. The judgment of the Court of Appeal of Quebec confirms what we have argued for a long time before many commissions and inquiries,” AFNQL Regional Chief Ghislain Picard says. “By virtue of the right to self-government, we are in the best position to ensure the wellness of our people and more particularly, our children.
“The province of Quebec will have to understand that this political desire will not go away and that any interference will be strongly denounced.”
APTN will have more reactions in the days to come.
