Breaking News: Supreme Court affirms Indigenous self-governance in child welfare law, UNDRIP in groundbreaking decision

What is the TLDR? The long struggle for equity for Indigenous children and families has reached a milestone. In upholding Bill C-92, Canada’s Supreme Court also  recognized that the federal government can pass laws which incorporate Indigenous laws, giving them the power of federal law. The Court agreed that, with this legislation, Canada did affirm Indigenous rights to self-government over family and child services.  Now, the entire country is bound by this important precedent, in which the Court also affirmed that UNDRIP (United Nations Declaration on the Rights of Indigenous Peoples) is now part of Canadian domestic law! 

So what the heck was all this about? 

Well, Canada passed Bill C-92,  the Act respecting First Nations, Inuit and Metis children, youth and families in 2019 to address the overrepresentation of Indigenous children in child welfare systems.

The Act itself has 3 purposes: 

  1. To “affirm the inherent right of self‑government, which includes jurisdiction in relation to child and family services” 
  2. To develop a national baseline standard for child welfare 
  3. To contribute to the implementation of UNDRIP in Canada 

The matter went to the Supreme Court of Canada (SCC) when Quebec sent a reference question* to the Quebec Court of Appeal. The Quebec Court of Appeal said that the Act is constitutional except for ss. 21 and 22(3). These are the provisions which give the laws of Indigenous groups, communities or peoples the status of federal laws and which the Quebec Court of Appeal found was not constitutional. 

Quebec disagreed: their appeal led to this latest Supreme Court decision which serves to strengthen Indigenous rights and jurisdiction from sea to sea to sea.  

The SCC found that the Act is wholly constitutional, after conducting an analysis of the “pith and substance’’of the Act, and considering the relevant heads of power. That’s  a really not-pithy way of asking what the law is about: in this case, Indigenous people, Indigenous child welfare, and reconciliation. 

The heads of power refer primarily to s. 91 and 92 of the Constitution. These sections list which areas of law are under the jurisdiction of the province and which are under that of  the federal government. This Act falls squarely within s. 91(24) the section —  which gives the federal government jurisdiction over laws relating to Indigenous people.

It’s a really big deal, because this is the first time that Indigenous laws have been given the priority of federal laws and therefore priority over provincial laws. With this Act Canada acknowledges that Indigenous people have an inherent right to self-government over their child and family services. Canada is now bound to honour that inherent right. Woo hoo! 

Another exciting aspect is that the decision confirmed that UNDRIP has been incorporated into Canada’s domestic law!

Sources: Reference re An Act respecting First Nations, Inuit and Métis children, youth and families – SCC Cases (scc-csc.ca) 

Supreme Court upholds First Nations’ rights to self-govern in child and family services – OKT | Olthuis Kleer Townshend LLP (oktlaw.com)

Note: *This decision was a reference decision. This is a legal tool which lets a government ask a Court of Appeal to determine whether a law is legal. In this case, the Quebec government asked the Quebec Court of Appeal if the law was constitutional or if it exceeded the Federal Government’s authority.

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