“A New Legislative Structure For Reconciliation” The SCC’s Reference Decision On An Act Respecting First Nations, Inuit And Métis Children, Youth And Families – Indigenous Peoples

This is a summary of the Reference Decision of the Supreme Court of
Canada (“the Court”) on An Act respecting First Nations, Inuit and
Métis children, youth and families (the
“Act” previously known as “Bill C-92”). It has
been prepared for the Métis National Council
(“MNC”) by Jason Madden, Alexandria Winterburn, Alissa SaievaFinnie, and Matthew Patterson of Aird & Berlis LLP. This summary is not
legal advice.

The MNC jointly intervened in the Refaerence Decision with the
Métis Nation of Ontario, Métis
Nation—Saskatchewan, Métis Nation of Alberta,
Métis Nation British Columbia, and Les Femmes Michif
Otipemisiwak to ensure the Métis Nation’s perspective
was before the Court. Jason Madden, Alexander DeParde, and Emily
Lahaie were legal counsel for these Métis interveners.

Key Takeaways in the Reference Decision.

1. The Act Is Constitutional and Falls Squarely Within
Parliament’s Jurisdiction (Although It Has Effects on
Provinces): At its core, the Act advances reconciliation
by protecting the well-being of Indigenous children through
culturally appropriate child and family services. This falls within
Parliament’s exclusive legislative authority for
“Indians” (i.e., all Indigenous people) under s. 91(24)
of the Constitution Act, 1867. While the Act has
incidental effects on provincial jurisdiction for child and family
services, both Parliament and provincial legislatures can pass laws
in this same area based on the double aspect doctrine.

2. The Crown (Federal and Provincial) Is Bound to
Respect the Affirmations in the Act and the National
Standards: The combination of ss. 7, 8(a) and 18(1) of the
Act bind the Crown (federal and provincial) to acting in a manner
that is consistent with the affirmations in the Act (i.e.,
Indigenous peoples have an inherent right to self-government,
including jurisdiction over child and family services). While the
affirmations in the Act do not create or prove a specific s. 35
right under the Constitution Act, 1982, they commit Crown
actors to a course of conduct consistent with the affirmations in
the Act and engage the honour of the Crown.

3. Parliament Can Interpret Section 35 Without Amending
the Constitution: The affirmations in the Act set out
Parliament’s view on specific s. 35 rights. These legislative
‘affirmations’ bind the Crown’s future conduct (i.e.,
it can no longer deny the existence of this s. 35 right). However,
this does not create or prove a s. 35 right and the courts continue
to be responsible for the authoritative interpretation of
Canada’s Constitution, including s. 35.

4. Indigenous Laws Can Be Incorporated as “Federal
Law” and Have Priority Over Provincial Laws Where There Is
Inconsistency: Sections 21 and 22 of the Act incorporate
Indigenous laws recognized under the processes in the Act as
“federal laws.” Through the doctrine of paramountcy,
these laws—incorporated as “federal
laws”—have priority over provincial laws to the extent
that there are inconsistencies between them.

5. The Court Avoids the “Elephant In The Room”
with Respect to Indigenous SelfGovernment Rights: As the
Reference Decision was about the constitutionality of legislation
as a whole, the Court did not need to determine whether
Parliament’s view on the s. 35 right of self-government was
correct or whether the inherent right to self-government exists.
The Court confirmed it “has not yet addressed the
question” and doubled down on its existing case law for how to
establish s. 35 rights, including self-government. However, it
noted the “affirmation [in the Act] will undoubtedly also be a
factor to consider when the courts are called upon to formally rule
on the scope of s. 35.”

6. The Act “Weaves” Together Indigenous,
Canadian and International Law: Throughout the Reference
Decision, the Court relies on the metaphor of “braiding”
together Indigenous law (i.e., laws adopted by Indigenous governing
bodies), Canadian law (i.e., through the national standards and how
Indigenous law under the Act will interface with other laws), and
international law (i.e., it implements aspects of the United
Nations Declaration on the Rights of Indigenous Peoples
[“UNDRIP”] in Canadian law). While the Court did not
address the source of Indigenous laws (i.e., whether they are based
on inherent rights), the metaphor supports the position advanced by
many intervenors that the Canadian legal system is multijuridical
and Indigenous laws must be recognized as a part of that
system.

7. The Importance of UNDRIP in Canadian Law:
While the Act was passed before the adoption of the federal UNDRIP
implementation legislation, the Court recognized that UNDRIP
“has now been incorporated into the country’s positive
law.” The Court also extensively considered UNDRIP in the
Reference Decision and relied on the declaration to support and
inform the interpretation of the Act. This bodes well for future
judicial consideration of UNDRIP to inform s. 35’s
interpretation and implementation.

Background and Context for the Act

In 2019, Parliament passed the Act after significant engagement
with First Nations, Inuit and Métis representatives about
how to address the “staggering” statistics of Indigenous
children in child welfare systems. (para. 11)

The Act was also informed by recommendations with respect to
Indigenous child and family services from the Royal Commission on
Aboriginal Peoples (“RCAP”), the Truth and Reconciliation
Commission (“TRC”) Final Report, as well as UNDRIP, which
Canada committed to support and implement “without
qualification” at the United Nations in 2016. (paras.
10-14)

Understanding the Act

The Act is a part of the federal government’s efforts to
advance reconciliation with First Nations, Inuit, and Métis
communities through proactive legislative recognition of Indigenous
rights (as opposed to first having to prove the right affirmed in
the legislation through litigation or having to negotiate on a
community-by-community, right-by-right basis). The Court recognized
the Act as an “innovative” and “new legislative
structure for reconciliation.” (para. 20)

The Act’s Binding Effect, Purpose, National Standards
& Affirmation

The Act starts with definitions (s. 1), a non-derogation clause
(s. 2) and sections setting out how conflicts with other
agreements, treaties or legislation are to be resolved (ss.
3-5).

Section 7 sets out that it is “binding on [the Crown] in
right of Canada or of a province.”

Section 8 of the Act sets out that its three-fold purpose is
to:

1. affirm the inherent right of self-government, which includes
   jurisdiction [i.e., law-making power] in relation to child and
   family services;




2. set out principles applicable, on a national level, to the
   provision of child and family services in relation to Indigenous
   children; and




3. contribute to the implementation of the [UNDRIP]

Sections 9 to 17 of the Act set out high-level national
standards and principles for the delivery of Indigenous child and
family services that are binding on the Crown and Indigenous
governing bodies who choose to use the Act.

Section 18(1) of the Act affirms that “[t]he inherent right
of self-government recognized and affirmed by section 35 of the
Constitution Act, 1982 includes jurisdiction in relation to child
and family services, including legislative authority in relation to
those services and authority to administer and enforce laws made
under that legislative authority.”

The Act and Indigenous Law

Sections 21 and 22 provide “Indigenous governing
bodies” under the Act (i.e., bodies that are authorized by an
Indigenous community that holds a s. 35 right) with legislative
options for taking over control of their children’s wellbeing.
The Act does this by establishing a framework through which
Indigenous groups can exercise their law-making authority over
child and family services by passing their own laws, giving notice,
and then requesting that the federal and relevant provincial or
territorial government enter into a “coordination
agreement” with them.

Once a coordination agreement has been reached (or reasonable
efforts to do so have been made over a 1-year period), the
Indigenous group’s law related to child and family services is
deemed by the Act to have the force of “federal law”.

Based on s. 20(1), an Indigenous group may also choose to simply
give notice of their law related to child and family services and
not make a request to enter into a coordination agreement. In these
situations, an Indigenous law will not have the force of federal
law.

Quebec’s Legal Challenge of the Act

The Reference Question

Reference cases involve governments asking courts to answer
specific legal questions. While a reference decision is not legally
binding on the parties, no government in Canada has ignored a
reference decision, particularly one issued by the highest court in
the country.

Following passage of the Act, Quebec asked the Quebec Court of
Appeal this question: “Is the Act … ultra vires the
jurisdiction of the Parliament of Canada under the Constitution of
Canada?”

“Ultra vires” is a legal term that means
beyond one’s legal power or authority. In a nutshell, Quebec
argued the Act was beyond Parliament’s authority because it
encroached on Quebec’s exclusive provincial jurisdiction for
child and family services.

Understanding Canada’s Constitution in the Context of
the Reference Question

When Canada was first established as a country, the Constitution
Act, 1867 set out what matters are within the “exclusive
Legislative Authority” of Parliament (and by extension the
federal government) in s. 91 (e.g., matters that are mostly
national in scope such as navigation, currency, banking, criminal
law, etc.).

Section 91(24) of the Constitution Act, 1867 assigns Parliament
“exclusive Legislative Authority” for “Indians, and
Lands reserved for the Indians.” In Daniels v Canada, the Court held the
term “Indians” in s. 91(24) means all Indigenous peoples,
including First Nations, Inuit and Métis. Canada argued the
Act was constitutionally valid based on its legislative authority
in s. 91(24).

Section 92 of the Constitution Act, 1867 sets out the
legislative authority of provincial legislatures, which includes
matters that are more local in nature and scope. Child and family
services has been found to fall within exclusive provincial
jurisdiction based on ss. 92(13) and (16). Quebec argued the Act
was constitutionally invalid because it was really about
controlling its legislative authority over child and family
services under s. 92.

The issue of reconciling ss. 91 and 92 with inherent Indigenous
jurisdiction and law has long been the “elephant in the
room” in interpreting Canada’s Constitution. Instead of
addressing this issue, the Court held it was only answering the
narrow question of whether the Act was a valid exercise of
Parliament’s legislative authority under s. 91(24), It held
that “it is unnecessary to determine the limits of s.
35(1)” in this reference. (para. 112)

The Court’s Answer to the Reference Question

The Two Stage Legal Test

In order for a court to determine the overall constitutional
validity of a law, there are two stages:

• First, a court must
  “characterize” the legislation (i.e., determine its
  “pith and substance” or its true nature by reviewing the
  legislation’s purpose and practical effects); and,




• Second, a court must
  “classify” the legislation (i.e., determine which
  legislative head of power in the Constitution Act, 1867 the law
  falls under based on the law’s characterization).

Step One: “Characterizing” the Act

As a part of “characterizing” an act, a court looks to
the words in the legislation itself (intrinsic evidence) and
external evidence related to the Act’s passage. A court also
looks to the legal and practical effects of the legislation to
determine its “pith and substance” (i.e., to characterize
it).

As part of determining the Act’s “true purpose”,
the Court identified three categories of provisions: (1) provisions
affirming the right of self-government; (2) provisions establishing
national standards; and (3) provisions setting out concrete
implementation measures. The Court used this framework to assess
the evidence as well as the Act’s practical effect. (para.
55)

Of particular note, the Court found that the affirmations in the
Act have “substantive legal effects” and binds the Crown
(federal and provincial). This “shap[es] how public powers are
exercised” by both federal and provincial government actors
going forward (i.e., Canada can no longer deny this affirmed rights
exists in negotiations or proceedings) and engages the honour of
the Crown. The Court noted that through the Act’s affirmations,
“Parliament is attempting to persuade other institutions to
adopt the position it has now embraced.” (paras. 57 &
81).

The Court also recognized that another “anticipated
practical effect of the Act is to make Canadian law more consistent
with UNDRIP.” (paras. 81 & 86).

After reviewing the Act through the above-noted three
categories, the Court concluded that— together—these
provisions “create a uniform national scheme for protecting
the well-being of Indigenous children, youth and families” and
it ultimately ‘characterized’ the Act as follows:

Step Two: “Classifying” the Act

Based on the above-noted ‘characterization,’ the Act was
then ‘classified’ as falling within the scope of s. 91(24).
The provisions within the Act “are all measures that are
within Parliament’s powers under s. 91(24),” which
“is broad in scope and relates first and foremost to what is
called ‘Indianness’ or Indigeneity, that is, Indigenous
peoples as Indigenous peoples.” (paras. 93-94)

This ‘classification’ was a full answer to whether the
Act was constitutionally valid, but the Court went on to address
some of Quebec’s other objections with respect to the Act:

• The Act’s national standards do not interfere with the work
  of the provincial public service under provincial laws. While
  Parliament can bind the Crown in right of the provinces in areas of
  federal jurisdiction, the standards are general enough that
  “provincial public servants retain significant discretion in
  making decision concerning Indigenous children.” (para.
  100)




• The Act’s affirmations do not (and cannot) alter
  Canada’s Constitution. Parliament has set out its
  “position on the scope of s. 35,” which it is entitled to
  do in order to protect and promote rights in relation to an area of
  federal jurisdiction. (para. 107)




• The Act’s incorporation by reference of Indigenous laws
  related to child and family services as “federal law” is
  valid and engages the legal doctrine of paramountcy. (para.
  132)

Conclusion

Based on the above, the Act—as “a new legislative
structure for reconciliation”—is valid and can continue
to be relied upon and implemented. (para. 20)

As the Court wrote, “[t]he Act creates space for Indigenous
groups, communities and peoples to exercise their jurisdiction to
care for their children. The recognition of this jurisdiction
invites Indigenous communities to work with the Crown to weave
together Indigenous, national and international laws in order to
protect the well-being of Indigenous children, youth and
families.” (para. 134)

Time will tell if this laudable goal is ultimately achieved
through the Act’s implementation, but the technique used in
this legislation provides a potential framework for expansion into
other matters and the Court unquestionably endorses the approach
used in the Act as another legal tool in the reconciliation
basket.

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