Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2022 QCCA 1852024 SCC 5 (40061)

“In keeping with its commitments relating to the United Nations Declaration on the Rights of Indigenous Peoples (“Declaration”), which has been incorporated into Canada’s domestic positive law, and in response to the calls to action made by the Truth and Reconciliation Commission of Canada, Parliament enacted the Act respecting First Nations, Inuit and Métis children, youth and families (“Act”). The Act establishes national standards and provides Indigenous peoples with effective control over their children’s welfare. In ss. 9 to 17, it sets out national standards and principles, which establish a normative framework for the provision of culturally appropriate child and family services that applies across the country. In ss. 8(a) and 18(1), it affirms that the inherent right of self‑government recognized and affirmed by s. 35 of the Constitution Act, 1982 includes legislative authority in relation to Indigenous child and family services. As well, the Act establishes a framework within which Indigenous groups, communities or peoples may exercise the jurisdiction affirmed in ss. 8(a) and 18(1) of the Act. It also specifies how its provisions and the jurisdiction it affirms will interact with other laws. Section 21 incorporates by reference the laws made by Indigenous groups, communities or peoples and gives them the force of law as federal law, and s. 22(3) states for greater certainty that the laws of Indigenous groups, communities or peoples prevail over provincial laws to the extent of any conflict or inconsistency.

Following the Act’s enactment, the Attorney General of Quebec referred the question of its constitutional validity to the Quebec Court of Appeal, asking whether the Act is ultra vires Parliament’s jurisdiction under the Constitution of Canada. The Court of Appeal held that the Act is constitutionally valid except for ss. 21 and 22(3), provisions that give the laws of Indigenous groups, communities or peoples priority over provincial laws. In its view, these provisions exceed Parliament’s jurisdiction because they impermissibly alter Canada’s constitutional architecture. The Attorney General of Quebec and the Attorney General of Canada appeal from the opinion given by the Court of Appeal.”

The SCC dismissed the appeal of the Attorney General of Québec and allowed the appeal of the Attorney General of Canada.

The Court wrote as follows (at paras. 1-9, 42-45, 47, 91, 130-136):

“In an order in council made on December 18, 2019, the Government of Quebec gave the province’s Attorney General a mandate to challenge, through a reference to the Court of Appeal, the constitutionality of the Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 (“Act”), on the ground that it exceeds the jurisdiction of the Parliament of Canada. Stating that the federal statute [translation] “raises fundamental constitutional issues with regard particularly to the division of legislative powers and the constitutional architecture of Canada”, the government referred the following constitutional question to the Quebec Court of Appeal:

  • [translation] Is the Act respecting First Nations, Inuit and Métis children, youth and families ultra vires the jurisdiction of the Parliament of Canada under the Constitution of Canada?
    (Order in council 1288‑2019, (2020) 152 G.O. II, 154, at p. 155)

In answer to this question, the Court of Appeal held that the Act is constitutionally valid except for ss. 21 and 22(3), provisions that give the laws of Indigenous groups, communities or peoples priority over provincial laws and, as a result, exceed Parliament’s jurisdiction.

With the same question before it, this Court is of the opinion that the Act as a whole is constitutionally valid. It falls within Parliament’s legislative jurisdiction over “Indians, and Lands reserved for the Indians” under s. 91(24) of the Constitution Act, 1867. Since it concerns relationships within Indigenous families and the control exercised by Indigenous communities over Indigenous children, the impugned Act relates first and foremost to what is called Indigeneity or “Indianness”, that is, Indigenous peoples as Indigenous peoples, which requires its classification under s. 91(24) of the Constitution Act, 1867.

The Act is part of a broader legislative program introduced by Parliament to achieve reconciliation with First Nations, the Inuit and the Métis “through renewed nation‑to‑nation, government‑to‑government and Inuit‑Crown relationships based on recognition of rights, respect, cooperation and partnership” (preamble). The framework serving as the foundation for this reconciliation initiative by Parliament is the United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (“Declaration” or “UNDRIP”), adopted by the United Nations General Assembly in 2007. That international instrument provides that “Indigenous peoples, in exercising their right to self‑determination, have the right to autonomy or self‑government in matters relating to their internal and local affairs” (art. 4). Among the matters dealt with in the Declaration, the provisions setting out “the right of indigenous families and communities to retain shared responsibility for the upbringing . . . and well‑being of their children, consistent with the rights of the child” (preamble; see also art. 14) are of particular relevance to this reference. The Declaration also refers to the right of Indigenous peoples to transmit their histories, languages and cultures to future generations (art. 13(1)), in addition to emphasizing the right not to be subjected to any act of violence, including “forcibly removing children of the group to another group” (art. 7(2)).

While the Declaration is not binding as a treaty in Canada, it nonetheless provides that, for the purposes of its implementation, states have an obligation to take, “in consultation and cooperation with indigenous peoples, . . . the appropriate measures, including legislative measures, to achieve the ends” of the Declaration (art. 38). Recognized by Parliament as “a universal international human rights instrument with application in Canadian law”, the Declaration has been incorporated into the country’s positive law by the United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14 (“UNDRIP Act”), s. 4(a). This statute recognizes that the Declaration “provides a framework for reconciliation” (preamble); s. 5 of the same statute requires the Government of Canada, in consultation and cooperation with Indigenous peoples, to take “all measures necessary to ensure that the laws of Canada are consistent with the Declaration”. The statute’s preamble expressly provides that the implementation of the Declaration in Canada “must include concrete measures to address injustices” facing, among others, Indigenous youth and children.

The Act challenged in this reference is therefore directly in keeping with Canada’s commitment to “implementing the United Nations Declaration on the Rights of Indigenous Peoples”, as the first recital of its preamble confirms. The preamble to the Act also refers to the calls to action of the Truth and Reconciliation Commission of Canada asking governments to “implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation” (Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (2015), at p. 191, call to action No. 43). This echoes one of the calls for justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls (see Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (2019), vol. 1b, at pp. 167‑218). At the centre of this process of reconciliation, the Act specifically addresses the harm caused to Indigenous children and their families. Its preamble states that “Parliament recognizes the legacy of residential schools and the harm, including intergenerational trauma, caused to Indigenous peoples by colonial policies and practices”. In the preamble, Parliament also recognizes the “disruption” that Indigenous women and girls have experienced in their lives in relation to child services and “the importance of reuniting Indigenous children with their families and communities from whom they were separated in the context of the provision of child and family services”. To achieve these aims, Parliament affirms the need “to respect the diversity of all Indigenous peoples, including the diversity of their laws”, and “to eliminate the over‑representation of Indigenous children in child and family services systems”.

Parliament embarked on this process of legislative reconciliation in favour of Indigenous children by taking an [translation] “unusual” approach, as the Court of Appeal put it (2022 QCCA 185, at para. 515 (CanLII)). Section 8 sets out the three elements of the Act’s purpose, which are all distinct legal avenues that are combined into an organic whole and have the same reconciliatory purpose: the affirmation for Canada, made by Parliament and binding on the Crown, of the vitality of Indigenous peoples’ legislative authority in relation to child and family services, and the provision of such services on the basis of national standards. First, the Act’s purpose is to “affirm the inherent right of self‑government, which includes jurisdiction in relation to child and family services” (s. 8(a)). This affirmation relates to what the Act calls the “laws” of Indigenous groups, communities or peoples, and it expresses the idea that these would be the most appropriate laws to govern the situation of Indigenous children and families. Second — and somewhat in counterpoint to the first purpose mentioned — the Act sets out “principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children” (s. 8(b)). The development by Parliament of national legislative standards to protect Indigenous children is a direct response to the fourth call to action made by the Truth and Reconciliation Commission. Third, the Act’s purpose is also to “contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples” (s. 8(c)). Again, this purpose responds to the Truth and Reconciliation Commission’s call for the Government of Canada to develop an action plan and other concrete measures to achieve the objectives of the Declaration.

The three elements of the purpose set out in s. 8 reflect Parliament’s openness to using three different types of legal norms that will be interwoven in this framework for reconciliation to ensure the well‑being of Indigenous children: the legislative authority of Indigenous peoples in relation to child and family services, the legislative provisions enacted by Parliament to establish national standards, and the international standards referred to in the Declaration. The metaphor of “braiding” together these three types of norms has been helpfully proposed to explain how the Declaration should be implemented in Canada, so as to “work out how state law and Indigenous law could be interwoven, with guidance from international law, to form a single, strong rope” (G. Christie, “Indigenous Legal Orders, Canadian Law and UNDRIP”, in UNDRIP Implementation: Braiding International, Domestic and Indigenous Laws (2017), 48, at p. 48; see also O. Fitzgerald and R. Schwartz, “Introduction”, ibid., 1, at p. 3).

Announced in s. 8 and carried out by the Act as a whole, Parliament’s effort to braid this “rope” with three strands constitutes the specific framework for reconciliation when it comes to Indigenous child and family services, in the spirit of the Declaration. Canada’s commitment to implementing the Declaration and responding to the Truth and Reconciliation Commission’s call to action is thus met immediately; this avoids the uncertainties of constitutional negotiations, the slowness of treaty settlements entered into on a piecemeal basis by the Crown and each of the various Indigenous communities concerned, and the inevitable conflicts associated with court settlements (on this point, see the explanations given by K. Wilkins, “Strategizing UNDRIP Implementation: Some Fundamentals”, in J. Borrows et al., eds., Braiding Legal Orders: Implementing the United Nations Declaration on the Rights of Indigenous Peoples (2019), 177).

Nothing prevents Parliament from affirming, as it does in s. 18(1) of the Act, that Indigenous peoples have jurisdiction to make laws in relation to child and family services. This “affirmation”, through which Parliament declares that the inherent right of self‑government recognized and affirmed by s. 35 of the Constitution Act, 1982 includes “legislative authority” in relation to Indigenous child and family services, certainly represents a legislative commitment that Parliament must honour in its conduct toward Indigenous peoples. Furthermore, nothing prevents Parliament from declaring, as it does in s. 7, that this commitment, like the others made toward Indigenous peoples in the Act for the protection of children, “is binding” on His Majesty. This is of signal importance, because no enactment is binding on His Majesty or affects His Majesty or His Majesty’s rights or prerogatives in any manner, except as mentioned or referred to in the enactment, as is the case with s. 7 (see Interpretation Act, R.S.C. 1985, c. I‑21, s. 17; Wilkins, at p. 184, citing Canada (Attorney General) v. Thouin, 2017 SCC 46, [2017] 2 S.C.R. 184, at paras. 1 and 19‑21). It is equally open to Parliament to affirm that the laws of Indigenous groups, communities or peoples will prevail over other laws in the event of a conflict. Moreover, it is clear that issues relating to the scope of s. 35 of the Constitution Act, 1982 and to the application of the doctrine of federal paramountcy are ultimately matters for the courts under Canadian law, not the legislative branch, since they raise questions of constitutional interpretation. Plainly, Parliament may not, by enacting an ordinary statute, amend the Constitution, including the rights protected by s. 35 of the Constitution Act, 1982, or alter the division of powers in the Constitution Act, 1867. That being said, Parliament’s jurisdiction under s. 91(24) of the Constitution Act, 1867 is a sound basis for enacting federal legislation that contains such affirmations and imposes such obligations on His Majesty, just as it is a sound basis for imposing national standards for child and family services for Indigenous children (s. 8b)). Contrary to what the Attorney General of Quebec argues, this in no way undermines the “constitutional architecture” of Canada.


 

A law’s preamble and purpose clauses can be considered to determine the purpose of the law in question (Greenhouse Gas References, at paras. 51 and 59). Here, s. 8 sets out the three elements of the Act’s purpose, which the Act’s preamble assists in interpreting.

First, the Act’s purpose is to “affirm the inherent right of self‑government, which includes jurisdiction in relation to child and family services” (s. 8(a)). The preamble places this purpose in a broader context, stating that “Parliament affirms the right to self‑determination of Indigenous peoples, including the inherent right of self‑government, which includes jurisdiction in relation to child and family services”. This affirmation is repeated in the substantive provisions of the Act (s. 18(1)) and grounds Parliament’s recognition of the laws of Indigenous groups, communities or peoples. To this end, the Act seeks “to achiev[e] reconciliation with First Nations, the Inuit and the Métis through renewed nation‑to‑nation, government‑to‑government and Inuit‑Crown relationships based on recognition of rights, respect, cooperation and partnership” (preamble).

Second, the Act’s purpose is to set out national standards for the provision of child and family services in the Indigenous context (s. 8(b) and preamble) in order to ensure respect for the dignity of Indigenous children. The preamble indeed emphasizes the importance of this step, noting that “the Truth and Reconciliation Commission of Canada’s Calls to Action calls for the federal, provincial and Indigenous governments to work together with respect to the welfare of Indigenous children and calls for the enactment of federal legislation that establishes national standards for the welfare of Indigenous children”. The preamble’s reference to call to action No. 4 suggests that Parliament’s intention with respect to the national standards was not to impose them unilaterally, without regard for the perspective of Indigenous groups, communities or peoples. Indeed, the preamble sets out the Government of Canada’s commitment to “engaging with Indigenous peoples and provincial governments to support a comprehensive reform of child and family services that are provided in relation to Indigenous children”. The Act therefore supports the view that the intention is for the national standards to be developed collaboratively and applied across the country to “help ensure that there are no gaps in the services that are provided in relation to [Indigenous children], whether they reside on a reserve or not” (preamble).

Third, the Act’s purpose is to “contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples” (s. 8(c)). Parliament chose to give particular importance to this aim by beginning the Act’s preamble with a reference to the Government of Canada’s commitment to implementing aspects of the UNDRIP. The text of the Act also suggests that Parliament intended the Act as a whole to be a concrete legislative measure to implement the UNDRIP in Canadian law.



Taken as a whole, the intrinsic evidence suggests that the purpose of the Act is to protect the well‑being of Indigenous children, youth and families. This overarching purpose has three elements: affirming Indigenous communities’ jurisdiction in relation to child and family services; establishing national standards applicable across Canada; and implementing aspects of the UNDRIP in Canadian law. As the extrinsic evidence of Parliament’s intention makes plain, however, these three elements are interwoven.



In sum, the purpose of the Act is to protect the well‑being of Indigenous children, youth and families in three interwoven ways: affirming Indigenous communities’ jurisdiction in relation to child and family services; establishing national standards applicable across Canada; and implementing aspects of the UNDRIP in Canadian law. The legal effect of the Act is to establish a uniform scheme for protecting the well‑being of Indigenous children, youth and families through the affirmation of Indigenous legislative authority, through national standards and through concrete implementation measures. Practically speaking, the Act may reasonably be expected to protect the well‑being of Indigenous children, youth and families and to advance reconciliation with Indigenous peoples. The pith and substance of the Act flows from the examination of these aims and effects.


 

In summary, it is constitutionally open to Parliament to use anticipatory incorporation by reference as a legislative drafting technique. Through s. 21, Parliament has validly incorporated by reference the laws, as amended from time to time, of Indigenous groups, communities or peoples in relation to child and family services. As a result, s. 21 does not alter the architecture of the Constitution.

The Attorney General of Quebec argues that s. 22(3) of the Act, the paramountcy provision, alters the architecture of the Constitution. In our view, this is not the case. Section 22(3) provides as follows: “For greater certainty, if there is a conflict or inconsistency between a provision respecting child and family services that is in a law of an Indigenous group, community or people and a provision respecting child and family services that is in a provincial Act or regulation, the provision that is in the law of the Indigenous group, community or people prevails to the extent of the conflict or inconsistency.” The laws of Indigenous groups, communities or peoples that are incorporated by reference will have the force of law as federal law: laws incorporated into federal law apply as federal law (Wewaykum Indian Band, at para. 114). Section 22(3) is simply a legislative restatement of the doctrine of federal paramountcy.

Under the doctrine of federal paramountcy, the provisions of a valid federal law prevail over conflicting or inconsistent provisions of a provincial law (see Canadian Western Bank, at paras. 32 and 69; Hogg and Wright, at § 16:1; Brun, Tremblay and Brouillet, at para. VI‑2.69; Monahan, Shaw and Ryan, at p. 133; Beaudoin, at p. 354; G. Régimbald and D. Newman, The Law of the Canadian Constitution (2nd ed. 2017), at §5.73). Although paramountcy is a judicial doctrine whose scope and application are matters for the courts rather than Parliament or the legislatures (Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, at para. 98; Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, at para. 56), this does not prevent Parliament or a legislature from declaring its understanding of federal paramountcy “[f]or greater certainty”, as Parliament has done in s. 22(3), where these words precede its explanation. But it is ultimately for the courts to adjudicate any alleged conflict between federal law and provincial law and to make any necessary declaration of paramountcy.

As a result, s. 22(3) of the Act does not alter the architecture of the Constitution.

Developed in cooperation with Indigenous peoples, the Act represents a significant step forward on the path to reconciliation. It forms part of the implementation of the UNDRIP by Parliament. It also responds to call to action No. 4 made by the Truth and Reconciliation Commission, which calls upon the federal government to establish national standards and to affirm the role of Indigenous governments in the area of child and family services. The Act creates space for Indigenous groups, communities and peoples to exercise their jurisdiction to care for their children. The recognition of this jurisdiction invites Indigenous communities to work with the Crown to weave together Indigenous, national and international laws in order to protect the well‑being of Indigenous children, youth and families.

The pith and substance of the Act, taken in its entirety, is to protect the well‑being of Indigenous children, youth and families by promoting the delivery of culturally appropriate child and family services and, in so doing, to advance the process of reconciliation with Indigenous peoples. This important legislative initiative falls squarely within Parliament’s legislative jurisdiction under s. 91(24) of the Constitution Act, 1867.

For these reasons, the following reference question: Is the Act respecting First Nations, Inuit and Métis children, youth and families ultra vires the jurisdiction of the Parliament of Canada under the Constitution of Canada?

is answered as follows:

No.”