December 5, 2022
AFN Will Continue To Fight For First Nations Jurisdiction As Affirmed In An Act Respecting First Nations, Inuit And Métis Children, Youth And Families
NationTalk: (Ottawa, ON) – The Assembly of First Nations (AFN) announced today that it continues to stand with First Nations in Quebec and all First Nations’ who exercise their inherent jurisdiction over child and family law. First Nations interveners, including the AFN, will appear in a hearing before the Supreme Court of Canada to support the constitutionality of the Act and its full implementation following the Government of Quebec challenging the law’s constitutionality. In addition, the legislation requires the establishment of an oversight committee appointed in part by the Federal government.
“Advancing First Nations priorities requires recognizing First Nations law-making powers,” said AFN Quebec-Labrador Regional Chief Ghislain Picard. “We continue to ask for this recognition and for sovereignty in our nations.”
The Court of Appeal of Quebec affirmed the constitutionality of the Act on February 10, 2022, in response to the Quebec government’s challenge to the constitutionality of the Act, which came into force January 1, 2020. The ruling affirmed that First Nations have an inherent right to self-government, including jurisdiction over child protection and family law.
“The Act is the positive result of decades of advocacy to respect First Nations systems that support the best interests of our families,” said AFN Manitoba Regional Chief Cindy Woodhouse, portfolio holder on the AFN Executive Committee. “My hope is that these hearings result in a stronger process for implementation.”
Federation of Sovereign Indigenous Nations 1st Vice-Chief David Pratt added, “The Federation of Sovereign Indigenous Nations (FSIN) would like to acknowledge our membership and all First Nations on the significance of the Supreme Court of Canada Quebec appeal hearing on C-92 respecting First Nations, Inuit, and Metis children and families (the Act). This case is monumental as it will affect not only child welfare laws, but every aspect of First Nations’ jurisdiction and right to self-determination. FSIN is fully committed to the implementation of the Act and are working towards bringing our children home and out of the hands of the Provinces and Territories. This precedent will impact Treaty and Inherent rights and whether the court will recognize our right to raise our children surrounded by their language, culture, history and land.”
The hearings begin this week with appearances from First Nations leaders. The Supreme Court of Canada’s decision is expected in 2023.
The AFN is the national organization representing First Nations people in Canada. Follow AFN on Twitter @AFN_Updates.
For more information please contact:
Assembly of First Nations
January 10, 2022
Alberta opposition to Bill C-92
Toronto Star – A First Nation in Alberta says it’s been nearly three months since it was supposed to take legal control of its own child welfare but the provincial government won’t recognize the arrangement made possible by federal legislation. “(Alberta) won’t recognize it at all. They won’t sign co-ordination agreements,” said Darin Keewatin, executive director of Asikiw Mostos O’pikinawasiwin Society, a child welfare organization for the Louis Bull Tribe.
The tribe asked to enter an agreement with Alberta and Canada in October 2020 under a federal law that was proposed in Bill C-92 and was enacted the previous year. It allows First Nations, Inuit and Métis communities to have jurisdiction over child and family services. The law says a three-party agreement should be reached within a year of a request. If an agreement has not been reached, but reasonable efforts were made, the child welfare laws designed by the Indigenous group come into play and supersede provincial or territorial ones.
Louis Bull Tribe’s law came into effect in October, but Keewatin said Alberta is not co-operating. “As soon as a tribe steps up to take responsibility and case manage their children, suddenly the ministry is saying, ‘Oh no, That’s not going to happen,’ ” he said.
Louis Bull’s law outlines the tribe’s protection and prevention services. That means cases involving Louis Bull children and families should be handed over to the society. Keewatin said the province hasn’t transferred all those cases. The province took control of talks from the beginning instead of respecting the community’s authority, he said. There were certain parts of the co-ordination agreement the province wanted resolved before signing it, he added.
Federal Indigenous Services Minister Patty Hajdu said talks have not reached a standstill yet, but they will if Alberta “is resolute in their opposition.” “I will continue to use every tool in my tool box to work with my provincial counterparts to help them move toward this model of self-determination.”
Criticism at the provincial level started before the federal legislation passed. Quebec opposed the law and filed a constitutional challenge that argued the law encroached on the province’s jurisdiction. Alberta had expressed concerns relating to liability, oversight and sharing of data.
As of March 2021, 71 per cent of children and youth receiving services in care were Indigenous despite only making up 10 per cent of the child population in Alberta.
October 26, 2022
Indigenous Jurisdiction and Bill C-92 at the Supreme Court of Canada
In the following post, my colleague Kate Gunn provides an overview of Quebec’s challenge of Bill C-92 at the Supreme Court and what it means for Indigenous Peoples’ ability to make decisions based on their inherent laws.
First Peoples Law Report:
|Persistent uncertainty regarding the extent to which governments in Canada are prepared to recognize and give effect to Indigenous Peoples’ inherent laws and jurisdiction remains a serious barrier to decolonization and reconciliation. In December, the Supreme Court of Canada will consider this issue directly in the Bill C-92 Quebec Reference case. The Court will determine the constitutionality of federal legislation which affirms Indigenous Peoples’ right to regulate child and family services based on their inherent law-making authority. The decision will also have broader implications for the development of Aboriginal rights jurisprudence, including for Indigenous Peoples’ ability to make decisions based on their inherent laws.|
Background — Bill C-92
The historic and ongoing impacts of colonization on the wellbeing of Indigenous children and families cannot be overstated. Indigenous children remain disproportionately represented in foster care, and Indigenous Peoples continue to face discrimination in accessing appropriate funding supports for child and family services.
In 2019, the Government of Canada took a step towards addressing this issue through the introduction of Bill C-92, An Act respecting First Nations, Inuit and Metis Children, youth and families. The Act, which came into force in 2021, is aimed at addressing the overrepresentation of Indigenous children in child and family services systems. It affirms that Indigenous Peoples’ inherent right to self-government, as recognized and protected under section 35 of the Constitution Act, 1982, includes jurisdiction over the regulation of child welfare matters, and provides a framework for Indigenous Peoples to exercise that jurisdiction, including through negotiated arrangements with federal and provincial governments and the incorporation of Indigenous laws into federal legislation.
Quebec’s Constitutional Challenge
Quebec challenged the constitutionality of the Act at the Quebec Court of Appeal. Quebec argued the federal government does not have authority to enact legislation dictating how provincial governments deliver child and family services, and that Canada cannot unilaterally determine the scope of constitutional protections under section 35 of the Constitution Act, 1982.
The Quebec Court of Appeal issued its decision in February 2022. The Court upheld the majority of the Act, but struck out provisions which provided that Indigenous laws enacted within the framework contemplated under the legislation would prevail in the event of a conflict with a provincial law. The Court further affirmed that First Nations have a right to exercise jurisdiction regarding child and family services which is protected under section 35, and rejected Quebec’s argument that it was not open to Canada to legislate on rights which have not yet been determined by the courts.
Both Quebec and Canada appealed aspects of the Court of Appeal’s decision to the Supreme Court of Canada.
Bill C-92 at the Supreme Court
If upheld, the Court of Appeal’s decision to strike out provisions in the Act which provide that Indigenous laws will prevail over provincial laws in the case of a conflict could have serious, negative implications for Indigenous Peoples’ ability to exercise their inherent laws in respect of children and families. The Court of Appeal’s decision also includes findings which, if affirmed, could have tangible positive impacts for Indigenous Peoples and governments.
1. Parliament does not need to wait for a court decision to recognize and protect section 35 rights.
The Quebec Court of Appeal affirmed that it is open to Parliament to recognize and protect Aboriginal rights under section 35 through legislation or political action, regardless of whether those rights have been determined by the courts. The Court went on to note that the Crown has a proactive duty to delineate and give effect to those rights.
These principles are not novel – Canadian courts have long recognized that Aboriginal rights are protected, rather than created, by the Constitution Act, 1982. However, as Quebec’s arguments before the Court of Appeal demonstrate, governments still rely, implicitly and explicitly, on the position that Aboriginal rights must be recognized by Canadian courts in order to attract the full measure of constitutional protections contemplated under section 35.
The appeal provides an opportunity for the Supreme Court to clarify that section 35 rights can be recognized and protected absent a court proceeding, and that governments must take concrete steps to determine and protect those rights. This affirmation could play an important role in disincentivizing governments from relying on positions based on the denial of section 35 rights, and in turn, reduce the need for costly and protracted litigation to determine the nature and scope of those rights.
2. Aboriginal rights can exist on a generic, non-specific basis.
Since 1996, the Supreme Court’s landmark decision in R. v. Van der Peet has guided the courts’ approach to defining Aboriginal rights. In that case, the Court held that for an activity to attract constitutional protection under section 35, it must be “an element of a practice, custom or tradition integral to the distinctive culture” of the Indigenous group prior to the arrival of Europeans.
At the Quebec Court of Appeal, the Court held that the ability to exercise decision-making authority over child and family services is an intrinsic aspect of Indigenous Peoples’ culture and identity, even though it may not be based on the unique cultural practices of any one Indigenous group. The Court went on to affirm that all Indigenous Peoples hold a “generic” right to regulate child and family services, regardless of the specific practices of individual Indigenous groups prior to colonization.
At the upcoming appeal, the Supreme Court will again be asked to confirm that Indigenous Peoples have a “generic” right to exercise their inherent jurisdiction in respect of child and family services which is protected under section 35. Such confirmation could signal a shift in Canadian Aboriginal rights jurisprudence away from the rigid application of the Van der Peet factors towards a more flexible approach to rights determination based on the underlying purpose of section 35, being reconciliation of the prior existence of Indigenous societies with the assertion of Crown sovereignty.
3. Indigenous treaty parties can hold inherent, constitutionally protected rights to self-government.
Across the country, Indigenous treaty parties have consistently and repeatedly expressed that they never surrendered their inherent decision-making authority on entering into treaty with the Crown. At the same time, federal and provincial governments in Canada have proceeded on the basis that the Indigenous treaty parties relinquished the ability to exercise jurisdiction based on their own laws at the time of treaty.
The Act and the Quebec Court of Appeal decision recognize that all Indigenous Peoples hold a constitutionally protected right to exercise their inherent laws in relation to child and family services, regardless of whether or not they are party to a treaty. As such, the Act and the decision both implicitly affirm that Indigenous groups who are parties to Crown-Indigenous treaties can and do continue to hold rights based on their own law-making authority. If endorsed by the Supreme Court, the Act and the Court of Appeal decision could provide support for the Indigenous treaty parties’ understanding of the treaty relationship, including the position that the Indigenous treaty parties retained the right to exercise jurisdiction over their children and families based on their own inherent laws.
The Bill C-92 Reference is one of several appeals now before the Supreme Court which engage directly with the relationship between Indigenous Peoples’ inherent laws and the jurisdictional authority of federal and provincial governments. The decision will clarify whether and how the Supreme Court will recognize and protect Indigenous Peoples’ ability to regulate child and family services based on their own laws and cultures and, in turn, support Indigenous communities in healing from the devastating impacts of colonial policies advanced and supported by Canadian institutions.
* This essay is a modified version of Kate Gunn’s article first published on the University of Calgary Faculty of Law’s ABlawg on September 20, 2022, available here.
|First Peoples Law LLP is a law firm dedicated to defending and advancing the rights of Indigenous Peoples. We work exclusively with Indigenous Peoples to defend their inherent and constitutionally protected title, rights and Treaty rights, uphold their Indigenous laws and governance and ensure economic prosperity for their current and future generations.|
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Kate Gunn is partner at First Peoples Law LLP. Kate completed her Master’s of Law at the University of British Columbia. Her most recent academic essay, “Agreeing to Share: Treaty 3, History & the Courts,” was published in the UBC Law Review.
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February 11, 2022
Fed. Govt., QC
Québec Constitution Challenge to Bill C-92
CBC – The Quebec Court of Appeal issued a decision yesterday finding the law constitutional apart from two key sections that relate to Aboriginal self-government and child and family services that it ruled are unconstitutional. The court took issue with the section of the law that allows Indigenous child welfare laws to supersede provincial laws when they conflict. “It’s quite a devastating decision,” said Mary Ellen Turpel-Lafond, professor of law at the Peter Allard School of Law at the University of British Columbia. “The only kind of law that would be allowed under this decision is one that’s clearly subordinate to the provincial law.”
Turpel-Lafond, who was involved in consultations on developing the legislation, called the decision a setback for Indigenous children, families and self-government. She said the work First Nations, Métis and Inuit governments are doing to introduce new laws and policies to reunite families is now in doubt. She said the Quebec court’s decision should be reviewed by Supreme Court of Canada — a process that could take two years. “This is a bit of a slam dunk for the Indian Act,” she said.
“If you happen to be a kid that’s not living in the province that’s particularly friendly to Indigenous peoples having rights, you may not get any rights. That’s not what we want.
February 12, 2020
Québec Constitution Challenge to Bill C-92
The Assembly of First Nations Quebec-Labrador (AFNQL) and the First Nations of Quebec and Labrador Health and Social Services Commission (FNQLHSSC) – presented a joint brief to the Laurent Commission (Special Commission on the Rights of Children and Youth Protection) aimed in particular at reaffirming the rights of First Nations to decide on the future and education of their children. The two organizations made recommendations that affect Act C-92, Bill 31, which aims to authorize the communication of personal information concerning certain missing or deceased Aboriginal children to their families, and the Youth Protection Act (YPA). The AFNQL and the FNQLHSSC have reiterated their constitutional right to manage family support and youth protection services, according to Act C-92, and are asking the Government of Quebec to withdraw its dispute and negotiate coordination agreements in good faith with First Nations governments and Canada. With regard to the YPA, they are also calling for:
- Indigenous children to be exempted from the application of the maximum periods of foster care and
- that the regulation on financial assistance to promote the adoption and tutorship of a child be amended.
- More generally, the two organizations recommend that Quebec implement measures that respond appropriately to the calls for justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls and the calls to action of the Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec.
December 20, 2019
Fed. Govt., QC
Québec Constitution Challenge to Bill C-92
Assembly of First Nations (AFN) National Chief Perry Bellegarde says the Government of Quebec’s decision to request that the Quebec Court of Appeal rule on the constitutionality of Bill C-92, the Indigenous child welfare act, is a setback that will further harm First Nations children and families.
This move could lead to delay and conflict, further harming our children and families. The AFN will look to intervene in this case and we expect the federal government to stand with us in upholding First Nations jurisdiction. We need urgent action to address the discrimination and the legacy of our children taken from their families and Nations. Bill C-92 affirms First Nations jurisdiction over child welfare.
March 17, 2022
Fed. Govt., QC
Québec Constitution Challenge to Bill C-92: AFN supports appeal to Supreme Court
The Assembly of First Nations (AFN) announced today that it stands with First Nations in Quebec and all First Nations’ jurisdiction over child and family law.
“Taking the Act to the Supreme Court presents an opportunity for the full recognition and affirmation of First Nations Inherent rights, as well as the exercise of this jurisdiction, at the highest judicial levels of Canada,” said AFN Manitoba Regional Chief Cindy Woodhouse, who leads the portfolio on child and family services for the AFN Executive Committee. “The Act is the positive result of decades of advocacy to respect First Nations systems that support the best interests of our families. The decision from the Quebec Court of Appeal affirmed the First Nations Generic Inherent Right in Child and Family Services and to make laws that are protected under section 35 of the Constitution. The province of Quebec’s challenge undermines all of that progress.”
February 10, 2022
Fed. Govt., QC
Quebec Court of Appeal rules against two sections of Bill C-92
The Court of Appeal of Québec ruled on Feb. 10, 2022 that Bill C-92 “is constitutional, except for ss. 21 and 22(3), which are not”. These sections deal with the right of Aboriginal self-government and the regulation of Child and Family Services. As Mary Ellen Turpel-Lafond, professor of law at the Peter Allard School of Law at the University of British Columbia says,” “The only kind of law that would be allowed under this decision is one that’s clearly subordinate to the provincial law…It’s a bit of a slam dunk for The Indian Act.”
March 21, 2019
AB, BC, Fed. Govt., MB, NB, NL, NS, NT, NU, ON, PE, QC, SK, YT
Yellowhead Institue Critique of Bill C-92
“Bill C-92, An Act respecting First Nations, Métis and Inuit children, youth and families” was graded as follows by the Yellowhead Institute of Ryerson University based on analysis by five Indigenous legal scholars. (See also First Nations Child and Family Caring Society Information Brief in C2A # 4)
National Standards: …………………… C
Data Collection and Reporting: …..D
Yellowhead Institute Recommendations
- Ensure that standards exist in law so that Indigenous children do not automatically become government wards without significant efforts are made to maintain familial and community care.
- Require ongoing legal relationships, or at the least, access to children’s family of origin.
Include strong, mandatory language around BIOC to address judicial bias and overtake any binding precedents in this area.
- Include “active efforts” or “maximum contact” clauses in relation to Indigenous child welfare with First Nations have not taken over full jurisdiction.
- A requirement of written documentation of active efforts to find placements according to the priority set out or affidavit evidence from the Indigenous group that there is no available placement.
- And/or a presumption that an access order with some family or community member and a long-term funding commitment for regular travel back to the community is included as a term of any permanency order.
- Attach clear federal funding commitments for First Nations pursuing child welfare jurisdiction.
- Ensure funding reflects the principle of substantive equality and which also meets the needs and circumstances of children on reserve
- Ensure off-reserve, Métis, non-status and Inuit children and families are included in budgets, distinct from non-Indigenous children and families.
- Compel coordination between federal and provincial governments regarding incentives to cooperate and adequately fund Indigenous governing bodies to implement Jordan’s Principle.
- Establish a dispute resolution mechanism to deal with situations where Indigenous groups experience challenges in entering collaboration agreements with Canada and the provinces, in the cases they are required.
- Create an independent body to hear disputes and make binding decisions on all parties.
- Recognize jurisdiction as a right to self- determination under UNDRIP rather than a s. 35 right.
Set a clear path out of the existing jurisdictional squabbling between the provincial and federal governments.
- Revise paramountcy rules so they are clear enough for, and accessible to community members, so that can understand in time sensitive or emergency circumstances.
- Contain clear conflict of laws principles and processes that give real weight to Indigenous law-making authority and jurisdiction.
- Address the long-standing issue of services to First Nations children who are residing off-reserve, as well as non-status, Métis and Inuit children.
- Provide clarity and direction on how the “Best Interests Of the Child” (BIOC) standard will be defined regarding the applicability of laws. At minimum this should clarify a standard for best interests of the Indigenous child— determined by Indigenous legal and community standards—and dictate the application of federal and provincial laws to Indigenous children.
- Clearly and openly resolve the lack of funding for Indigenous law-making, administration and enforcement as well as funding for the preventative of child and family health.
Data Collecting and Reporting
- Mandate collection and publication of data along the lines of TRC Call to Action #2
- Address privacy issues by anonymized and displaying data in aggregate.