The Quebec government will appeal an Appeal Court decision that marked the first time the courts have clearly recognized a self-government right as a right of all Indigenous peoples in Canada.
The Quebec Appeal Court held 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.
“It is a question of jurisdiction between the Quebec and Canadian governments, and we are pursuing the relationship with the Aboriginal communities,” said Quebec Minister of Justice Simon Jolin-Barrette, explaining why the provincial government is seeking leave to appeal before the Supreme Court of Canada.
“It is possible to have a partnership with the Aboriginal communities in order to take charge of youth protection, but this must be done within the division of powers that exists in the Constitution,” added Jolin-Barrette.
The Assembly of First Nations Quebec-Labrador (AFNQL), a political organization that unites 43 First Nations Chiefs in Quebec and Labrador, expressed their disappointment with Quebec’s decision.
“The AFNQL denounces this choice by Quebec, which continues to deny the fundamental rights of First Nations and our children and families,” said Chief Ghislain Picard. “We remain more determined than ever to defend the principle recognizing the legitimacy of our governments. We will oppose Quebec’s claims before the Supreme Court, and we will continue to support First Nations governments in the exercise of their jurisdiction regarding our children, youth and families.”
The Attorney General of Canada is also appealing the Court of Appeal’s decision before the Supreme Court. But its challenge is limited to the invalidation of two provisions of the federal Act respecting First Nations, Inuit and Métis children, youth and families (Bill C-92) that established a statutory regime of federal paramountcy in favour of First Nations law.
The Appeal Court held that the sections of Bill C-92 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 law paramountcy, not a federal law. 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.
“Certainly the novel questions here would benefit from the consideration of the level of how they would apply to the entire country,” 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.
“From the Quebec perspective. I can see how they have some concerns about the national standards piece, and they might want that revisited in terms of the interaction between their operations and federal legislation in this area,” added Taylor. “But to me, importantly, from the federal perspective, is federal paramountcy a tool that is in the federal toolbox or not? That will have an impact, not just in this area, but in the area of many, many other different kinds of services. There’s no other way to answer as effectively than having an appeal to the Supreme court of Canada.”