Quebec challenge of child welfare legislation to Supreme Court expected, but Canada’s comes as a surprise

Now that the Act respecting First Nations, Inuit and Métis children, youth and families (CFS Act) has been appealed to the Supreme Court of Canada, Assembly of First Nations Quebec and Labrador Regional Chief Ghislain Picard is expecting Canada to take a strong stand on behalf of First Nations.

“If the Canadian Parliament is going to pass laws then we would expect Canada to stand by them,” said Picard.

The Quebec government launched legal action in December 2019 against the federal government claiming the CFS Act infringed on the jurisdiction the province has over child welfare, and that legal action is now being appealed to the top court.

“We say, that (the time) is over…where Canada or the federal government or the provinces can stand alone claiming to have jurisdiction in areas of interest for First Nations. So the court of appeal is saying now you have to count the Indigenous people in,” said Picard.

The message that the AFNQL has delivered to the federal government is that the battle at the Supreme Court level is not limited to defending the CFS Act through the division of powers.

“To me it’s far more important than just that,” said Picard.

The CFS Act came into force Jan. 1, 2020. It recognizes the inherent rights of Indigenous self-government in the delivery of child and family services and establishes national standards for a minimum level of services.

On Feb. 10 the Quebec Court of Appeal ruled the act was constitutional as sect. 35 confirms the right to Aboriginal self-government and such a right arises in relations to child and family services.

However, it said two sections of the Act were invalid: sect. 21, which specifies that the legislation has “the force of law as federal law” and sect. 22(3) which states the act will “prevail over any conflicting or inconsistent provisions of provincial legislation.”

It is the declaration that the Act is constitutional that has driven Quebec to appeal the decision to the Supreme Court of Canada.

The striking down of sections 21 and 22(3) has the federal government also appealing the decision.

“The thing is, we were hoping that the decision would not go to the Supreme Court. Understanding, as well, we would have found it very difficult to believe that Quebec would have restrained from appealing the decision. Which is exactly what happened,” said Picard.

It is Ottawa’s decision to appeal that Richard Gray doesn’t understand. He is social services manager with First Nations of Quebec and Labrador Health and Social Services Commission (FNQLHSSC).

FNQLHSSC joined AFNQL as interveners in the case. FNQLHSSC supports First Nations communities in the development and implementation of their child and family laws.

“We didn’t tell (the federal government) we wanted them to go and appeal,” said Gray.

In a statement issued March 14, the federal government said it was taking the step because “the Quebec Court of Appeal's decision raises important questions regarding how communities can implement their jurisdiction over child and family services without being unduly impeded by provincial laws.”

As far as Gray’s concerned, First Nations jurisdiction over child and family law is protected without those two sections.

“Generic inherent rights (for child and family jurisdiction) are protected under Sect. 35 of the Constitution and they prevail over provincial laws and if you want to infringe on them, you have to justify your infringement … through consultation and accommodation. It’s pretty clearly written in the court of appeal decision,” said Gray.

The Quebec Court of Appeal states, “Where there is a real conflict between Aboriginal and federal or provincial legislation, one must conclude that there is an infringement of the Aboriginal right. Since the Aboriginal right is recognized and affirmed by s. 35, the Aboriginal legislation must prevail. Concluding otherwise would render s. 35 meaningless. Thus, in principle, Aboriginal legislation prevails over incompatible federal or provincial legislation, unless the government concerned can establish that the infringement is justified.”

Gray says they were “very, very happy” that the court of appeal recognized the regulation of child and family services as a generic inherent right.

“As the Assembly of First Nations Quebec-Labrador and the First Nations of Quebec and Labrador Health and Social Services Commission point out, a legislative approach has advantages in many situations, particularly in the case of an Aboriginal right of self-government in a field of jurisdiction that is generic to all Aboriginal peoples,” said the court.

However, Gray notes that the federal government fought for the court to only make a decision regarding generic rights specific to child and family services.

“Counsel for the Attorney General of Canada … very clearly stated...(that) in the present matter, it is sufficient for the Court to find that Aboriginal self-government, whether or not general, necessarily involves legislative authority over child welfare services. Ultimately, the Court need not rule on the existence of a generic Aboriginal right of self-government. If there is a right to self-government in relation to child welfare services, the Act is valid. Any future use by Aboriginal peoples of the right of self-government may be challenged on a “case-by-case” basis. In each such case, it will be for the courts to render judgment, both as to the existence and scope of the right of self-government the group in question purports to be exercising,” observed the court.

As they wait for the case to proceed to the Supreme Court of Canada, Gray said, “We expect Quebec to respect the rule of law regarding the court of appeal decision.”

Opitciwan First Nation began exercising its jurisdiction over child and family services in mid-January. There is no coordination agreement with Quebec. That may present problems when Opitciwan – and other First Nations who exercise their own jurisdiction –reach out to their children living off-reserve, says Gray.

“We will find a way to implement the wishes of the community certainly,” said Picard.

There are more than a dozen communities in Quebec ready to take that jurisdictional step, he said.

Picard expects other Indigenous organizations and provinces will join as interveners on the Supreme Court action. The Quebec Court of Appeal case also had AFN, Makivik Corporation, Aseniwuche Winewak Nation of Canada, and the First Nations Child and Family Caring Society of Canada as interveners.

“The fact that it has gone to the Supreme Court would certainly open the door for more interest this time around,” said Picard, who adds that AFNQL is in for the long haul.

“Hopefully this issue won’t drag on too long at the Supreme Court level for the benefit of our kids.”

No date has been set.

Local Journalism Initiative Reporters are supported by a financial contribution made by the Government of Canada.