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Indigenous - First Nations, Inuit and Métis children, youth and families, An Act Respecting (FNIMCYFA) (2). Reference re An Act respecting First Nations, Inuit and Métis children, youth and families
In Reference re An Act respecting First Nations, Inuit and Métis children, youth and families (SCC, 2023) the Supreme Court of Canada considers [at paras 37-92] the key identification of the 'pith and substance' (here, of the First Nations, Inuit and Métis children, youth and families (FNIMCYFA) legislation), the first of two parts of the constitutional validity inquiry. The second is "classifying it by reference to the heads of power listed in ss. 91 and 92 of the Constitution Act, 1867":
[134] 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.
[135] 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.
[136] 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.
. Reference re An Act respecting First Nations, Inuit and Métis children, youth and families
In Reference re An Act respecting First Nations, Inuit and Métis children, youth and families (SCC, 2023) the Supreme Court of Canada sets out an extended history and summary of the "Act respecting First Nations, Inuit and Métis children, youth and families" ['FNIMCYFA'], which here is subject of an unsuccessful constitutional challenge (an appeal initiated by reference to the Quebec CA) - including essential legal conflict and paramountcy principles between the constitution, federal legislation, 'existing treaties or self‑government agreements', provincial law and "conflict or inconsistency, in relation to an Indigenous child, between the laws of two Indigenous groups, communities or peoples":III. Overview of the Act
[19] In keeping with its commitments relating to the UNDRIP, Parliament decided to enact innovative legislation that establishes national standards and provides Indigenous peoples with effective control over their children’s welfare. From the outset, Parliament recognizes in the Act’s preamble itself that a comprehensive reform of Indigenous child and family services is needed to address the overrepresentation of children in family services systems. This reform, which includes an affirmation of Indigenous peoples’ jurisdiction in relation to such services, will be an important step on the path to reconciliation. The purpose of the Act includes affirming the inherent right of self‑government (s. 8(a)) and, as s. 9(2) specifies, the Act is to be interpreted in accordance with the principle of “cultural continuity” for Indigenous peoples. Parliament places the child at the centre of this idea of cultural continuity for obvious reasons: ensuring that Indigenous peoples themselves exercise control over child services will help to avoid the intergenerational trauma and assimilation policies of the past (see the preamble). The fact that a child resides with members of his or her family and community strengthens the transmission of Indigenous culture and often promotes the child’s best interests (s. 9(2)). Of course, a legislative affirmation regarding the interpretation to be given to a constitutional norm is not binding on the courts.
[20] The collaboration between Indigenous peoples and government bodies that led to the enactment of the Act, which contains express declaratory provisions, highlights Parliament’s firm commitment to establishing a new legislative structure for reconciliation. Under this framework created by the Act, Indigenous governing bodies and the Government of Canada will work together to remedy the harms of the past and create a solid foundation for a renewed nation‑to‑nation relationship in the area of child and family services, binding the Crown in its dealings with the country’s Indigenous peoples.
[21] The Act therefore represents one more step toward reconciliation. Indeed, its preamble expressly acknowledges much of the context set out above. It states that the Act is intended to “implemen[t] the United Nations Declaration on the Rights of Indigenous Peoples”, to recognize “the legacy of residential schools and the harm, including intergenerational trauma, caused to Indigenous peoples by colonial policies and practices”, and to respond to the calls to action made by the Truth and Reconciliation Commission of Canada.
[22] Section 8 states that the purpose of the Act is to(a) affirm the inherent right of self‑government, which includes jurisdiction in relation to child and family services;
(b) set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children; and
(c) contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples. These three interwoven elements of the purpose can be found in various places in the Act, which “is binding on Her Majesty in right of Canada or of a province” (s. 7).
[23] For instance, the affirmation of the inherent right of self‑government made in s. 8(a) also appears in s. 18(1):Affirmation
18 (1) The inherent right of self‑government recognized and affirmed by section 35 of the Constitution Act, 1982 includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority. [24] This affirmation is also reflected in s. 2 of the Act, which requires that the Act be interpreted in a way that upholds all rights under s. 35 of the Constitution Act, 1982. Indeed, Parliament states in s. 2 that the Act “is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them”.
[25] Further, the “principles applicable, on a national level,” referenced in s. 8(b) find expression in ss. 9 to 17, which establish national standards for the provision of child and family services in relation to Indigenous children. Section 9 states that the Act “is to be interpreted and administered in accordance with the principle of the best interests of the child” and emphasizes the principles of cultural continuity and substantive equality. Section 10(3) sets out the factors to be considered in determining the best interests of an Indigenous child. Section 11 provides that child and family services are to be provided in a manner that takes into account a child’s needs and culture, allows the child to know his or her family origins, and promotes substantive equality. Section 12(1) requires a service provider to give notice to a child’s parent and the relevant Indigenous governing body before taking any significant measure in relation to the child. Section 13 establishes the right of the parents, the care provider and the Indigenous governing body to make representations in the context “of a civil proceeding in respect of the provision of child and family services in relation to an Indigenous child”. Section 14 prioritizes preventive care, including prenatal services. Section 15 prohibits apprehending an Indigenous child “solely on the basis of his or her socio‑economic conditions”. Sections 16 and 17 establish an order of priority for the placement of a child, “to the extent that it is consistent with the best interests of the child”.
[26] 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). The Act provides that Indigenous governing bodies intending to exercise such jurisdiction may give notice to and request to enter into coordination agreements with the responsible federal minister and the provincial governments concerned (s. 20(1) and (2)). When they enter into such an agreement, or when they make reasonable efforts to do so during a period of one year after their request, their “law, as amended from time to time . . . also has, during the period that the law is in force, the force of law as federal law” (s. 21(1)). The provisions respecting child and family services in the laws made by Indigenous groups, communities or peoples apply “in relation to an Indigenous child except if the application of the provision[s] would be contrary to the best interests of the child” (s. 23).
[27] The Act also specifies how its provisions and the jurisdiction it affirms will interact with other laws. First, s. 19 states that “[t]he Canadian Charter of Rights and Freedoms applies to an Indigenous governing body in the exercise of jurisdiction in relation to child and family services on behalf of an Indigenous group, community or people.” Second, s. 3 stipulates that the provisions of existing treaties or self‑government agreements that contain provisions respecting child and family services prevail over the Act’s provisions to the extent of any conflict or inconsistency. Third, ss. 21(3) and 22(1) state that the only federal legislative provisions that prevail over the laws of Indigenous groups, communities or peoples made as a result of entering into a coordination agreement or after a year of reasonable efforts to enter into such an agreement are ss. 10 to 15 of the Act and the provisions of the Canadian Human Rights Act, R.S.C. 1985, c. H‑6. Fourth, with respect to provincial laws, s. 22(3) states, “[f]or greater certainty”, that the laws of Indigenous groups, communities or peoples made pursuant to a coordination agreement or after a year of reasonable efforts to enter into such an agreement prevail over provincial laws to the extent of any conflict or inconsistency. Where there is no conflict or inconsistency, however, the Act provides that nothing in it affects the application of any provincial statute or regulation (s. 4). Finally, s. 24(1) of the Act sets out how to resolve cases in which there is a conflict or inconsistency, in relation to an Indigenous child, between the laws of two Indigenous groups, communities or peoples.
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