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.”Read More
The decision, widely expected to land before the nation’s highest court, also affirms that there are two types of Aboriginal rights, specific and general rights, noted Nicholas Dodd, a Montreal lawyer practicing aboriginal law with Dionne Schulze. Generic rights are rights held by all s. 35 Indigenous peoples, regardless of their specific practices on a given issue, by virtue of the fact that they are “peoples” in and of their own, explained Dodd. “While this distinction has been discussed in the doctrine, it has never been recognized by a Canadian court,” said Dodd.
The implications behind the finding that two types of Aboriginal rights exist are far-reaching, and strengthens the position of First Nations, Inuit and Métis communities that are at the table trying to negotiate agreements, said Taylor. “On a broader scale, when we look to self-government which to this point has been something that gets negotiated kind of on a case-by-case and one-off, it really takes things out of the realm of politics and backstops it with jurisprudence,” said Taylor.
The case revolves around a constitutional challenge by the Quebec government over the jurisdictional reach of the federal Act respecting First Nations, Inuit and Métis children, youth and families (Bill C-92), in effect since January 2020. Described by the panel of five Appeal Court justices as a “recent milestone in a process set in motion nearly two centuries ago,” Bill C-92 established national standards and a framework to ensure Aboriginal children across the country are provided with a minimal level of services. The comprehensive Act, inspired by the United Nations Declaration on the Rights of Indigenous Peoples, also recognizes the inherent right of Aboriginal self-government, including legislative authority in relation to child and family services, with no need for bipartite or tripartite agreements. Under ss. 21 and 22 of the Act, Aboriginal laws relating to child and family services have the the same force of law as federal laws, and prevail over conflicting provisions of federal or provincial laws regarding child and family services.
The Quebec government argued that the Act exceeds the federal powers under s. 91(24) of the Constitution Act, 1867, and jeopardizes the architecture of the Constitution. It maintained that in pith and substance the Act dictates how provinces must provide child and family services to Aboriginals, impairing the province’s authority over its public service. It also asserted that by affirming the existence of the inherent right of Aboriginal self-government, the Act usurped the role of the courts and unilaterally creates a third level of government in Canada, something that can only be accomplished through a constitutional amendment or by treaties protected under s. 35 of the Constitution Act, 1982.
In a voluminous 209-page ruling, the Appeal Court rejected most of Quebec’s arguments and ruled that most of Bill C-92 is constitutional. The Appeal Court upheld the constitutionality of the minimum national standards, holding that the standards are “stated in the Act in general terms and not as operational requirements” imposed on provincial public servants for the provision of child and family services. Moreover, the standards are compatible with Quebec’s child welfare laws, and the possible effects on provincial public servants are “incidental,” said the Appeal Court in a unanimous decision. (An English summary of the ruling can be downloaded here, and clicking here the full English version of the decision.)
The court relied on traditional federalism doctrines to dismiss Quebec’s take on national standards, said Taylor. “Quebec had effectively said that when you have overlapping provincial jurisdiction in an area impacting Indigenous peoples, the federal government can’t go so far as dictating how provincial servants have to do their job but the Court said that’s not how things work in that area,” explained Taylor. “In fact, 91(24) (of the Constitution Act, 1867) is a broader head of jurisdiction that lets the federal government essentially take steps to advance reconciliation and to advance the improvement of conditions, even if there’s concurrent provincial jurisdiction.”
The minimum national standards provide important protection for Indigenous communities that are not yet in a position to act upon their own Indigenous laws, noted Truesdale, who represented the Aseniwuche Winewak Nation of Canada in the case. “This is particularly important for non-status Indian and Métis communities, as the federal legislation provides far better protection for non-status Indian and Métis children, family and communities than most provincial and territorial services legislation in Canada,” said Truesdale.
The Appeal Court also dismissed Quebec’s contention that Aboriginal governance can only be achieved from constitutional amendments, delegations of legislative powers, or agreements between governments and Aboriginal peoples. The main objective behind s. 35 is to “effect reconciliation and preserve a constitutional space” for Aboriginal peoples to allow then to live as peoples, with their own identities, cultures and values within the Canadian framework, said the Appeal Court. The regulation of child and family services by Aboriginal peoples themselves cannot be dissociated from their Aboriginal identity and cultural development, underlined the Appeal Court.
The right of self-government, added the Appeal Court, falls within s. 35 “because it is a form” of Aboriginal right. “It is a generic right that extends to all Aboriginal peoples, because it is intimately tied to their cultural continuity and survival,” said the Appeal Court. “In the past, significant barriers, such as residential schools, impeded the exercise of that right. These situations, however, were never endorsed by Parliament, which never indicated, through clear and unambiguous legislation, its intention to extinguish the right.”
The notion that the right of Aboriginal self-government stems from s. 35 is an evolution that took decades to reach, pointed out Binette. When the Constitution Act, 1982 was drafted and assented, every one – including Indigenous peoples – was convinced that s. 35 did not extend to self-governance, added Binette. “The Court of Appeal concluded that s. 35 protects ancestral rights such as the right of self-government, which makes sense because all the treaties were negotiated with Indigenous peoples who in effect were autonomous,” said Binette. “It is an original power which derives not from a federal or provincial power but from the Constitution itself, just like federal and provincial powers in general. Following the decision, we can no longer speak of delegated powers. It’s clear that jurisdiction of provinces have been reduced, and will be in other areas because there is a need to make room for a third order of government.”
But to the disappointment of Indigenous people, the Appeal Court held that the sections of the Act that affirmed that Aboriginal laws relating to child and family services could supplant provincial laws when they conflict was deemed to be ultra vires. The Appeal Court held that it is s. 35 that gives Indigenous laws paramountcy, not a federal law, said Truesdale. Conflicts that may arise between Indigenous and other laws must be dealt with under the Sparrow test, which outlines the conditions under which the government can regulate an Aboriginal right, said the Appeal Court.
“The Court is clear that Indigenous laws take precedence over conflicting federal or provincial laws, unless an infringement of the Indigenous law can be justified by the government,” said Dodd. “The Sparrows test has never been used in this particular way, so there are a lot of questions. Will Courts attempt to find ways to find both laws valid as they have done with division of powers questions? Some comments made by the Court suggest that this may be the case. If so, this may undermine the deep structural change that the Act is trying to effect.”
From a pragmatic perspective, federal paramountcy is a more advantageous legal doctrine because it is an “automatic trumping provision” if it falls within the parameters, said Taylor. That’s not the case with the Sparrow “sledge hammer” where the merits of the provincial government’s intentions are examined, added Taylor. “While the Court of Appeal seems to suggest that it’s going to be a pretty steep hill to climb for a provincial government that has a conflicting law, it’s a hill that’s open for them to climb, which creates potentially more avenues for litigation.” Perhaps even more significantly, the Appeal Court decision also may also discourage the federal government from using paramountcy in other areas like education, health or policing in the face of recalcitrant provinces, added Taylor.
There is no doubt however that the Appeal Court decision will, besides change the architecture of Canada’s Constitution, inevitably lead to a lot of work to harmonize the Aboriginal rules of law with federal and provincial rules of law, said Binette. The courts, predicts Binette, too will be just as busy. “There will be jurisprudence to come for decades on this front in different areas of law just as there was on the division of competences between the federal and provincial governments,” said Binette.
The name of the case is as follows:
In the matter of the: Reference to the Court of appeal of Quebec in relation with the Act respecting First Nations, Inuit and Métis children, youth and families (Order in Council No: 1288-2019)
This story was originally published in The Lawyer’s Daily.