The Supreme Court of Canada affirmed the importance of Indigenous self-governance Friday. In a unanimous decision, the court upheld the constitutionality of a 2019 law that recognizes Indigenous self-governance rights include the right to make child protection laws.
The law in question, an Act respecting First Nations, Inuit and Métis children, youth and families, “represents one more step towards reconciliation,” the court said.
But the court also recognized reconciliation is a “long-term project.” Reconciliation “will not be accomplished in a single sacred moment, but rather through a continuous transformation of relationships and a braiding together of distinct legal traditions and sources of power that exist.”
The Indigenous child welfare law establishes national standards for the provision of child and family services for Indigenous children. It also says Indigenous groups can make laws about child protection services.
Quebec disagreed with the law, saying Ottawa had overstepped its bounds and that it was unconstitutional. It asked the Quebec Court of Appeal for its opinion about whether the law was constitutional.
Such legal references are not legally binding. They are a court’s opinion on a legal question.
In 2022, the Quebec Court of Appeal said the law was constitutional, except for two sections. On appeal to the Supreme Court of Canada, Quebec argued the entire law is unconstitutional, while Canada argued the whole law is constitutional.
The Supreme Court sided with the federal government and said the law “as a whole is constitutionally valid.”
When determining if a law is constitutional, the court must consider the law’s purpose and effects, as well as the level of government it relates to, the decision says.
The 2019 law was created to protect Indigenous children, youth and families. It does this by affirming Indigenous communities have authority over child welfare and protection services, establishing national standards and implementing parts of the United Nations Declaration on the Rights of Indigenous Peoples into Canadian law.
The law “falls squarely” within the federal government’s jurisdiction, the decision says.
This law should help protect Indigenous children and families and reduce the high number of Indigenous children and youth in foster care, the court said. It cited 2016 census data that showed more than 50 per cent of children in foster care in Canada are Indigenous, even though fewer than eight per cent of children in Canada are Indigenous.
The court noted not all effects of the law are known. But it is “reasonable to expect” it will lead to Indigenous children and families receiving more culturally appropriate services and fewer Indigenous children winding up in mainstream child protective services.
‘Picking up the torch’
Numerous Indigenous groups praised the decision.
The decision shows Indigenous communities do have the authority to make laws to govern the protection and safety of their children, says Earl Stevenson, legal counsel for Peguis Child and Family Services, one of dozens of Indigenous groups that intervened in the case. The Peguis First Nation is the largest First Nation in Manitoba and has had its own child welfare and protection law in place since 2022.
Indigenous control over child welfare and protection services has been identified as a critical part of reconciliation with Indigenous peoples. In 2015, the Truth and Reconciliation Commission called on the federal government to enact laws to establish national standards for Indigenous child protection and to affirm the rights of Indigenous governments to establish and maintain their own child welfare agencies.
The Indigenous child welfare law showed the government was “picking up that torch,” said Stevenson. The decision is a “really positive step in terms of allowing those First Nation communities along with provinces and territories in Canada to work collaboratively on achieving reconciliation,” he said.
The decision “confirms that there is a crisis in this country and that the crisis has to end,” said David Taylor, a lawyer who represented the First Nations Child & Caring Society of Canada, another intervener in the case.
But the 2019 law is an “incomplete framework,” he said, because it does not say how Indigenous child welfare and protection will be funded.
The decision is a starting point,” he said.
The Indigenous child welfare law could still be challenged in court, the Supreme Court’s decision says.
For example, there may be disagreements about what Indigenous group has jurisdiction in a particular situation. But this reference is not meant to respond to potential future legal questions.
The Indigenous child welfare law is an example of how legislation can be used to advance reconciliation, the decision says.
Constitutional challenges in court and developing treaties can also advance reconciliation. But passing a law can happen faster than court cases or deciding treaties, the decision says.
“The federal government can now no longer assert, in any proceedings or discussions, that there is no Indigenous right of self‑government in relation to child and family services,” the decision says.
