Canadian Constitution architecture dramatically altered following Quebec Appeal Court decision, according to experts

The architecture of the Canadian Constitution has been dramatically altered, with the emergence of a third level of government, after the Quebec Court of Appeal ruled that Indigenous people possess an existing right of self-government that is protected by section 35 of the Constitution Act, 1982, according to legal experts.

The “bold” decision, a reference case brought by the Attorney General of Québec after it challenged the constitutionality of the federal government’s Indigenous child welfare law, marks the first time a self-government right has been clearly recognized by the courts as a right of all Indigenous peoples in Canada, added aboriginal and constitutional legal experts.

“The Court recognized that Indigenous peoples in Canada have a right to self-government over child and family services recognized and affirmed by section 35 of the Constitution Act, 1982,” said Claire Truesdale, a Vancouver lawyer with JFK Law Corporation who practices Aboriginal, environmental and constitutional law. “This is remarkable.”

The Appeal Court ruling has set the stage for Aboriginals to seek self-governance on matters far more than child and family services to other areas such as education and health, said David Taylor, an Ottawa lawyer with Conway Baxter Wilson LLP who represented the First Nations Child and Family Caring Society of Canada in the case. “It shows a pathway to get there, and it’s not by returning to time immemorial to show how a particular group governed itself in an area at the time,” said Taylor. “It becomes a much different inquiry, which to my mind, is actually consistent with how we’re supposed to interpret the Constitution. There’s some flexibility the Court of Appeal is showing, and it’s intellectual approach that is quite admirable.”

According to André Binette, a constitutional legal expert, the decision is a “turning point” in constitutional law. “For the first time the right of Indigenous self-government was recognized, which is equivalent to the creation of a third order of government,” said Binette, who practiced aboriginal law and co-chaired the 1999 Nunavik Commission, a trilateral body with representation from Nunavik, Quebec and Canada. “This is a precedent that will have considerable effects.”

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This story was originally published in The Lawyer’s Daily.

 

 

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