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Supreme Court declares Indigenous child welfare law constitutional

The Supreme Court of Canada is pictured in Ottawa on March 3, 2023.  (Sean Kilpatrick/The Canadian Press - image credit)
The Supreme Court of Canada is pictured in Ottawa on March 3, 2023. (Sean Kilpatrick/The Canadian Press - image credit)

The Supreme Court of Canada has unanimously upheld the Trudeau government's Indigenous child welfare law, dismissing Quebec's appeal in a landmark opinion affirming Indigenous Peoples' jurisdiction over child and family services.

The high court sided with the Canadian government in a decision rendered Friday morning, reversing a Quebec Court of Appeal decision to declare the law partly unconstitutional.

"The act as a whole is constitutionally valid," the court concluded.

"Developed in co-operation with Indigenous Peoples, the act represents a significant step forward on the path to reconciliation."

Bill C-92, An Act Respecting First Nations, Métis and Inuit Children Youth and Families, became law in 2019. It affirms Indigenous nations have jurisdiction over child and family services and outlines national minimum standards of care.

The Quebec government opposed the law on jurisdictional grounds, arguing Ottawa overstepped its legislative authority, infringed upon provincial jurisdiction and effectively recognized Indigenous Peoples as a third order of government.

The Supreme Court concluded the federal Liberal government was within its jurisdiction and did not create a third level of government but rather recognized rights already protected by the Aboriginal rights section of Canada's Constitution.

"The act does not alter Canada's constitutional architecture," the court wrote.

The court also found the law forms part of Parliament's implementation of the United Nations Declaration on the Rights of Indigenous Peoples.

Quebec First Nations leaders praised the decision as historic, monumental and a major step in the right direction. At a news conference at a hotel in Ottawa, they sat behind a semicircle of mostly Atikamekw youngsters to punctuate the point.

Sean Kilpatrick/Canadian Press
Sean Kilpatrick/Canadian Press

"This decision really belongs to them," said Ghislain Picard, chief of the Assembly of First Nations Quebec-Labrador.

It was a beautiful day but also a sad day, Picard added, because of the way the well-being of First Nations' most sacred and valued resource — their children — was debated in the courts for years.

"We've always acknowledged the responsibility that we have, carry and believe in, that we are the best governments to really ensure their future," said Picard, as more kids laughed and played in the halls.

Decision lauded

In a statement in French, the Quebec government said its disagreement has always been with the federal government, not Indigenous people, and that it agrees with greater Indigenous autonomy in matters of youth protection, in harmony with Quebec policy.

"Given the significant repercussions of the judgment, particularly on the question of the protection of vulnerable children and Indigenous governance, Quebec will continue to carefully analyze the decision," said the statement in French.

WATCH | Child advocate Cindy Blackstock on the Supreme Court ruling:

Prime Minister Justin Trudeau called the opinion deeply significant and positive, while Conservative Leader Pierre Poilievre said he supports the principle of autonomy for First Nations.

The Assembly of First Nations national chief applauded the ruling, and the president of the Métis National Council (MNC) echoed the sentiment.

"It has the ability to remedy past harms of colonization. It has the ability to remedy current harms of colonization," said Cassidy Caron.

Sean Kilpatrick/Canadian Press
Sean Kilpatrick/Canadian Press

Caron joined national Inuit leader Natan Obed, president of Inuit Tapiriit Kanatami, and the federal Indigenous affairs ministers on Parliament Hill to laud the ruling.

Obed said the delay caused by the court challenge created years of confusion, uncertainty and concern.

"We still live in a country where our rights are contested, especially by jurisdictions who would imagine that their control is always superior to the rights of Indigenous people," he said.

Indigenous laws take precedence

An ecstatic David Chartrand, president of the Manitoba Métis Federation, which is not part of the MNC, said the court sent a strong message that federal and provincial governments should consider broader recognition of Indigenous autonomy.

"That discussion has to happen," he said in a phone interview.

"It's going to take us some time to get there, but we're at least heading there now."

While the decision is limited to self-government in child and family services, it may set the stage for Ottawa to recognize self-government rights through legislation in other areas.

Indigenous Services Minister Patty Hajdu suggested other jurisdictions should heed the court's call.

"This is a clarion call for all provinces and territories to be partners in this reconciliation. It is now the law, actually, that that work has to continue," she told reporters.

The Quebec Court of Appeal had rejected two clauses that say Indigenous laws have the force of federal law and will prevail over conflicting provincial laws.

The Supreme Court ruling suggests such conflicts between laws would be resolved by courts when they arise, with Indigenous Peoples enjoying the protection of those two clauses.

Chartrand said earlier this week that this dispute over whose laws prevail has serious practical implications. The federation, for example, opposes permanent adoption orders while the province allows them. With this ruling, the Red River Métis can press ahead, he said.

The entire nine-judge bench heard the case, though retired justice Russell Brown didn't participate in its final disposition. The reasons are authored by the court as a whole and not any one judge.