SCC to Address Indigenous Peoples’ Inherent Right to Self-Govern in Bill C-92 Reference
Editor’s Note: The author’s analysis of Renvoi à la Cour d’appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis, 2022 QCCA 185 [QCCA Reference] is based on an unofficial English translation of the opinion of the Quebec Court of Appeal (“QCCA” or “Appeal Court”).
More than half of children in foster care are Indigenous, despite comprising less than 10% of Canada’s child population (CBC News, 21 Sept 2022). Indigenous children’s gross overrepresentation in our child welfare system can be seen as the contemporary iteration of a long pattern of colonial state practices, including both residential schools and the Sixties Scoop. This historical backdrop illuminates a vivid and ongoing legacy of assimilationist state intervention that separates Indigenous children from their cultural identities and their loved ones.
To break from the past, Indigenous interest groups and the Government of Canada entered into a legislative agreement that re-assigns jurisdiction over some child and family care services to Indigenous groups. Crucially, this legislative agreement recognizes Indigenous groups’ inherent right of self-governance over the provisioning of these services.
With the issue of Indigenous self-governance squarely on the docket, the Supreme Court of Canada (“SCC” or “the Court”) heard Attorney General of Québec, et al v Attorney General of Canada, et al (SCC 40061) [Bill C-92 Reference]. The case engaged representatives from all over the country and brought in nearly 40 intervenors to discuss the complex interplay between federal, provincial and Indigenous legal jurisdiction. The Bill C-92 Reference is sure to be a landmark case in Canada’s Aboriginal law jurisprudence and is poised to disrupt existing legal treatment of this long-advocated right.
In their forthcoming decision, the Court will determine whether the Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 (“the Act”) is ultra vires (read: outside the power of) the federal jurisdiction.
The Attorney General of Quebec (“the Province”) appeals the constitutional validity of the Act. Among other issues, the Province takes umbrage with certain provisions because they amount to “an attempt to unilaterally amend s. 35 of the Constitution Act, 1982, which exceeds the powers of Parliament” (QCCA Reference, para 8). The Province also submits that affirming the inherent right to self-govern usurps the courts’ powers and “creates a third level of government in Canada” (QCCA Reference, para 36). Conversely, the Attorney General of Canada submits that the Act is valid pursuant to s. 91(24) of the Constitution Act, 1867, s. 35 of the Constitution Act, 1982 and the Aboriginal right of self-government (QCCA Reference, para 9).
With an understanding that Indigenous groups are often best suited to determine the care of their own people, the Assembly of First Nations and the Government of Canada established a comprehensive framework to improve family and child care services. From there, the Act was conceived and came into force in 2020.
The Act is especially significant in its affirmation of the inherent right to self-govern in the realm of family and child services. This monumental legislative decision was aptly summarized by the QCCA:
[The Act] is the first piece of legislation which—based on the fundamental recognition of the right to self-government as a general right—establishes a national […] scheme for implementing true Aboriginal self-governance, doing so outside the scope of the Indian Act and for all peoples contemplated in s. 35 of the Constitution Act, 1982 (rather than on a case-by-case basis, as was the previous practice), the whole in relation to child and family services. (QCCA Reference, para 194)
The Act hinges on two main concepts: “the establishment of national standards to ensure Indigenous children are provided with a minimum level of services, and recognition of the inherent right of Aboriginal self-government” (QCCA Reference, para 27). Fulfilling these goals includes interpreting the Act through the lens of “the best interests of the child, cultural continuity and substantive equality” (QCCA Reference, para 28).
However, despite the self-governing powers conferred onto Indigenous groups, their authority is still circumscribed by Parliament. The Act sets out a framework of “general national standards” that function as guidelines in the provisioning of family and youth services (QCCA Reference, para 200).
QCCA Upholds the Act
In February 2022, the QCCA deemed the Act constitutional, but for ss. 21 and 22(3). Alongside this conclusion, the QCCA also held that the right of self-government is a generic one that extends to all Indigenous peoples because the right is “intimately tied to [Indigenous persons’] cultural continuity and survival” (QCCA Reference, para 58).
The Right of Self-Government in Family and Child Services is Inherent and Generic
In a resounding victory for Indigenous persons in Canada, the QCCA unequivocally affirmed that the right to self-government is inherent within the realm of family and child services. This means that the right has always existed and flows from Indigenous persons’ “original sovereignty over the territory” (QCCA Reference, paras 49-50). Per the Appeal Court, this right is enshrined in s. 35 of the Constitution Act, 1982 (QCCA Reference, paras 49-50) .
Not only is the right inherent, but it also applies to all Indigenous persons. This conclusion seemingly departs from past applications of the Van der Peet test, which courts have previously used to determine the existence of an Aboriginal right on a piecemeal and group-specific basis (R v Van der Peet, 1996 2 [SCR] 507) [Van der Peet]. In the QCCA Reference, the Justices turned the application of the test on its head by finding that the Van der Peet test “suggests that the existence of a generic right to self-government is a viable approach” (QCCA Reference, para 54, emphasis added). The QCCA relied on the purpose of s. 35 to justify their conclusion. The constitutional provision not only seeks to effect reconciliation, but “preserve[s] a constitutional space for Aboriginal peoples to live with their own identities, cultures and values within a Canadian framework” (QCCA Reference, para 58). Applying the generic right to the context of family and youth services, the QCCA concluded that “children and families are the main channel for conveying the markers of Aboriginal identity” and therefore, “[r]egulation of child and family services by Aboriginal peoples themselves cannot be dissociated from their Aboriginal identity and cultural development” (QCCA Reference, para 58).
Sections 21 and 22(3) are Unconstitutional
Though finding that the Act as a whole passed constitutional muster, the QCCA found ss. 21 and 22(3) to be constitutionally invalid. The Appeal Court deemed the impugned provisions ultra vires because they both attempt to have Aboriginal laws prevail over any conflicting or inconsistent provisions from the provincial or federal level. In effect, ss. 21 and 22(3) “render the doctrine of federal paramountcy applicable to Aboriginal legislation” when the doctrine can only apply to federal legislation (QCCA Reference, para 64). To accept these provisions as they exist in the Act would ultimately alter “the fundamental architecture of the Constitution” (QCCA Reference, para 64) by giving “absolute priority to the Aboriginal regulation of child and family services” (QCCA Reference, para 65). As such, the provisions ought to be struck down.
The SCC’s History of Avoidance on the Right to Self-Govern
The Bill C-92 Reference will serve as a pivotal case in acknowledging and implementing the inherent right of indigenous self-government amongst Canada’s other levels of government. The case will also serve as a benchmark of the SCC’s willingness to interact with this complex right—especially after decades of avoidance.
Our Court has a storied history of tactfully evading Indigenous peoples’ inherent right to self-government. The SCC first rejected Indigenous claims of self-government in R v Pamajewon,  2 SCR 821 [Pamajewon]. Here, the Court bypassed the Shawanaga First Nation’s claim to self-government in their pursuit of gambling activities on their reserve, finding that the alleged right was one of “excessive generality” that could not be meaningfully assessed within the Court’s existing legal frameworks (Pamajewon, para 27). Writing for the majority, Justice Lamer also concluded that “any asserted right to self-government, must be looked at in light of the specific circumstances of each case and, in particular, in light of the specific history and culture of the aboriginal group claiming the right” (Pamajewon, para 27). The SCC furthered their reluctance to confront the issue one year later in Delgamuukw v British Columbia,  3 SCR 1010 [Delgamuukw]. Despite books of evidence regarding the Wet’suwet’en’s claim to self-govern, the Court conveniently found that they lacked sufficient evidence to determine whether the claim was established (Delgamuukw, paras 170-171). In effect, the outcomes in Pamajewon and Delgamuukw set the stage for the SCC to transform a general right to self-govern into narrow and costly legal endeavours for individual Indigenous groups.
However, where the Court failed to meaningfully engage with the issue of self-governance in Pamajewon and Delgamuukw, the Bill C-92 Reference holds promise. Unlike its jurisprudential predecessors, the Bill C-92 Reference touches exclusively on the issue of Indigenous self-governance. Additionally, the SCC will need to revisit the QCCA’s application of the Van der Peet test to determine the validity of the QCCA’s finding that the test can accommodate a general right to self-govern, which seemingly departs from Justice Lamer’s piecemeal perception of the test. Regardless of outcome, Aboriginal law practitioners will wait with baited breath for the SCC’s perspective on this hot-button issue.
Aspirations for the Upcoming SCC Decision
In my opinion, the SCC ought not only to accept the QCCA’s finding, but the Bench should go one step further by concluding that the entire Act, including ss. 21 and 22(3), are intra vires. Per the QCCA’s analysis, the impugned provisions were deemed constitutionally invalid because they “[violate] the principle that the Canadian constitutional architecture is based on coordinated (not subordinate) governments” (QCCA Reference, para 65). We may question the truthfulness of this statement, especially given the weight that the QCCA places on the federal paramountcy doctrine in their analysis. The federal paramountcy doctrine holds that federal laws dominate in the face of conflict with other laws. How, then, can the QCCA say the constitutional architecture is not, at least in part, based on subordinate governments? With a mind towards reconciliation and the pressing fact that Indigenous governments existed long before settler Canadian governments, the SCC would do well to acknowledge Indigenous authority over family and child services.
Moreover, the SCC not only has the chance to depart from Aboriginal law precedent, but to gravitate closer towards progressive political initiatives that have rightfully honoured Indigenous persons in Canada.
The Forgotten Legacy of the Charlottetown Accord
Upholding the validity of the Act and deeming ss. 21 and 22(3) intra vires would harken back to and affirm the promises once given to Indigenous persons in 1992 in the Charlottetown Accord (“the Accord”). The Accord was a failed attempt at constitutional amendment that would have conferred significant authority and legal powers to Indigenous people in Canada. Not only did the Accord acknowledge Indigenous persons’ inherent right of self-government, but it would also formally recognize three levels of government (ie. federal, provincial and Indigenous) that would negotiate together in good faith to accomplish national goals. The Act in Bill C-92 Reference is reminiscent of the Accord in its treatment of Indigenous jurisdiction over family and child services.
Notably, the QCCA reflected on the Charlottetown Accord in justifying their finding that the right to self-govern is inherent (QCCA Reference, paras 55, 184). Per the QCCA at para 431:
[A]ll of the participants in the 1992 Charlottetown Accord recognized that the Aboriginal peoples of Canada have an inherent right of self-government within Canada. Although the Charlottetown Accord was defeated in a referendum […] this does not mean that the rights set out therein were not already entrenched in the Constitution of Canada. (QCCA Reference)
If the SCC upholds the Appeal Court’s decision, the Court will be one step closer to fulfilling the promises that were ultimately denied to Indigenous groups over 30 years prior.
Acknowledging UNDRIP at Our Highest Court
The United Nations Declaration on the Rights of Indigenous Peoples (“the Declaration”) is a robust international instrument that highlights the value of Indigenous autonomy, jurisdiction and of Indigenous self-government. Although this document arguably carries significant normative weight, the SCC have yet to meaningfully interact with the Declaration. The Bill C-92 Reference could be the optimal time for our highest court to recognize the legal force of this important instrument.
The Bill C-92 Reference nearly begs the SCC to recognize the Declaration, especially because it is found in numerous aspects of the case. In the QCCA Reference, for example, the Justices took care to note that their interpretation of s. 35 with respect to the right of self-government “seems entirely consistent with the principles set out in the Declaration” (QCCA Reference, para 61). Indeed, the first sentence of the Act’s preamble itself acknowledges the Government of Canada’s commitment to implementing the Declaration.
Since the UN Declaration came to fruition in 2007, the SCC has yet to meaningfully engage with its contents, despite the Declaration being a progressive framework with which to engage with Indigenous rights and freedoms. Given the QCCA’s distinct emphasis on the Declaration, the Court should take formal recognition of it and likewise use the international framework as a lens with which to view the issues in the Bill C-92 Reference. Specifically, the SCC should pay due notice to Article 4 of the Declaration, which holds that “Indigenous peoples […] have the right to autonomy or self-government in matters relating to their internal and local affairs” (Declaration, Art. 4). An acknowledgement of the Declaration as a persuasive legal tool with normative force in Canada would be a significant stride for Indigenous rights advocates.
If the SCC upholds the QCCA’s finding in the Bill C-92 Reference, the case will surely pave the way for future legal acknowledgement of the Indigenous inherent right to self-govern in other areas. All eyes will be on the Court, who will hopefully move the dial on generic Indigenous rights recognition in this much anticipated decision.