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. 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 the 'classification' phase of the constitutional division-of-powers validity assessment, here the location of the FNIMCYFA within the s.91(24) ['Indians, and Lands reserved for the Indians'] of the Constitution Act, 1867 head of power:
B. Classification Under Section 91(24) of the Constitution Act, 1867

[93] The Act falls squarely within s. 91(24) of the Constitution Act, 1867. Binding the federal government to the affirmation set out in s. 18(1), establishing national standards and facilitating the implementation of the laws of Indigenous groups, communities or peoples are all measures that are within Parliament’s powers under s. 91(24).

[94] The jurisdiction provided for in s. 91(24) is broad in scope and relates first and foremost to what is called “Indianness” or Indigeneity, that is, Indigenous peoples as Indigenous peoples.

[95] The foregoing is sufficient to conclude that the Act is intra vires Parliament under its jurisdiction over “Indians”. However, the Attorney General of Quebec has raised other objections to the constitutional validity of the Act, which we reject for the reasons that follow.

(1) Sections 1 to 17 of the Act Need Not Be Classified Under Section 92 of the Constitution Act, 1867

[96] The Attorney General of Quebec argues that the pith and substance of ss. 1 to 17 of the Act is to determine, through the adoption of minimum national standards, how provincial jurisdiction over youth protection is to be exercised in relation to Indigenous children. He also contends that these standards interfere with the work of the provincial public service, whose independence is essential to the existence of two levels of government that are coordinate, with no subordination of one to the other. Essentially, he argues, the provinces are being told how they must provide child services to Indigenous peoples within their borders. For the reasons that follow, the Attorney General of Quebec’s position cannot be accepted.

[97] It is trite law that Parliament can bind the Crown in right of the provinces (see, e.g., Attorney‑General for British Columbia v. Canadian Pacific Railway, [1906] A.C. 204 (P.C.); see also Brun, Tremblay and Brouillet, at paras. IX.95‑IX.96; Hogg and Wright, at § 10:21). However, Parliament can do so only within areas of federal jurisdiction.

[98] The minimum national standards are within federal jurisdiction and can accordingly be binding on the provincial governments. The double aspect doctrine allows for “the concurrent application of both federal and provincial legislation” in relation to the “same fact situation” (Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837, at para. 66 (emphasis in original); Greenhouse Gas References, at para. 129). Youth protection in the Indigenous context has a double aspect, since it can be approached from two different perspectives: protection of the ties between Indigenous families and communities, in a spirit of cultural survival, under s. 91(24) (Canadian Western Bank, at para. 61; see also Natural Parents v. Superintendent of Child Welfare, 1975 CanLII 143 (SCC), [1976] 2 S.C.R. 751, at p. 787, per Beetz J.); or child and family services and youth protection, under s. 92(13) and (16) (NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45, [2010] 2 S.C.R. 696, at paras. 36‑40, per Abella J., and at paras. 74‑78, per McLachlin C.J. and Fish J., concurring; see also J. Woodward, Aboriginal Law in Canada (loose‑leaf), at § 4:16). While the provinces are generally “the keeper[s] of constitutional authority over child welfare” (NIL/TU,O, at para. 24), the federal government also has jurisdiction to legislate in relation to child and family services for Indigenous children. As Professors Hogg and Wright have noted, “[i]f s. 91(24) merely authorized Parliament to make laws for Indians which it could make for non‑Indians, then the provision would be unnecessary” (§ 28:2).

[99] Child welfare in the Indigenous context is not only a field in which Parliament and the provinces can act, but also one in which concerted action by them is necessary. The importance of cooperation in this area between these two levels of government is illustrated, for example, by Jordan’s Principle, according to which intergovernmental disputes may not interfere with the right of Indigenous children to access the same services as other children in Canada. With regard to such disputes, the Truth and Reconciliation Commission noted that the federal government and the provincial governments have historically tended to shift responsibility for Indigenous child welfare services to one another (Honouring the Truth, Reconciling for the Future, at pp. 142‑43). However, today it is recognized that providing such services is the responsibility of both levels of government, which must act in a concerted fashion (House of Commons Debates, vol. 142, No. 31, 2nd Sess., 39th Parl., December 5, 2007, at p. 1780 (S. Blaney)). Since there is overlapping federal and provincial jurisdiction with respect to Indigenous children, it was entirely open to Parliament to legislate as it did (see, e.g., Grammond (2018), at pp. 137‑38).

[100] We would add that while the provinces are validly bound by the national standards, these standards are not so precise and inflexible that they regulate all aspects of the provision of child and family services in the Indigenous context. Given the degree of generality with which these standards have been formulated, provincial public servants retain significant discretion in making decisions concerning Indigenous children. Moreover, the national standards apply to all service providers, whether they are provincial public servants or not. Finally, far from interfering with provincial initiatives, the national standards appear to be largely complementary to them. Indeed, the example of the Youth Protection Act, CQLR, c. P‑34.1 (“YPA”), many of whose provisions bear a striking similarity to the national standards, is instructive in this regard.

[101] The remarks made about the Act by the Deputy Minister, Department of Indigenous Services, during the proceedings of the Standing Committee on Indigenous and Northern Affairs are particularly enlightening. The Deputy Minister noted on that occasion that Parliament’s approach had been inspired by the child welfare initiatives taken by Quebec in relation to Indigenous children, including the amendments made to the YPA by the National Assembly of Quebec. He stated the following:
We’re using the results of the work that Quebec is already doing with indigenous people, particularly on the principles. We could end up with very positive approaches in Quebec, which wouldn’t necessarily be changed by the legislation. The legislation doesn’t call into question the positive aspects. Instead, it sets minimum standards. Moreover, in many cases, we have the impression that these standards are already being met or even exceeded.

(House of Commons, Standing Committee on Indigenous and Northern Affairs, Evidence, No. 146, 1st Sess., 42nd Parl., April 30, 2019, at p. 9)
[102] The various principles set out in Chapter V.1 of the YPA, which is entitled “Provisions Specific to Indigenous People”, including the principle of cultural continuity, are in line with the national standards. Both the Act and the YPA envision the concept of well‑being of Indigenous children on the basis of the idea that “Indigenous persons are best suited to meet the needs of their children in the manner that is the most appropriate” (YPA, preamble).

[103] It follows from all of the foregoing that the national standards have only “incidental” effects on the provinces’ exercise of their powers, including on the work of their public servants. As this Court has reiterated many times, effects of this kind have no impact on the constitutional validity of the legislation from which they arise (Canadian Western Bank, at para. 28, quoting Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494, at para. 23).

(2) Sections 8(a) and 18(1) and the Associated Provisions Do Not Purport to Amend the Constitution

[104] In this reference, the Attorney General of Quebec also submits that the Act is ultra vires because Parliament cannot itself, through legislation, establish the existence of an Indigenous right under s. 35, determine its scope or define its content. The Attorney General maintains that, to have full effect, the affirmations found in various places in the Act require either an amendment to the Constitution or prior judicial recognition. In this regard, the Quebec Court of Appeal was of the view that the Act is based expressly on the premise that Indigenous peoples’ right of self‑government is recognized and affirmed by s. 35(1), and that this right includes child and family services. According to the Court of Appeal, given that such a right does indeed exist, the Act is thus constitutionally valid, subject to the provisions on the incorporation of laws of Indigenous groups, communities or peoples into federal law and on federal paramountcy.

[105] The Attorney General of Quebec states that what he calls [translation] “Part II” of the Act represents an attempt to amend the Constitution unilaterally. In particular, he claims that, through ss. 8 and 18 to 26 of the Act, Parliament has tried to create a third level of government, thereby accomplishing unilaterally what many rounds of constitutional negotiations failed to entrench. He shares the Court of Appeal’s view that the affirmations [translation] “rais[e] some questions, particularly with respect to the division of powers between the legislative and judicial branches” (para. 515).

[106] It is, of course, true that Parliament does not have the power to amend s. 35 of the Constitution Act, 1982 unilaterally. On this point, it should be noted that s. 35.1 commits the federal and provincial governments to the principle that any amendment to s. 35 (among other provisions) will be preceded by a first ministers’ conference convened by the Prime Minister of Canada (s. 35.1(a)). Further, representatives of the Indigenous peoples of Canada will be invited to participate in the discussions on agenda items related to any proposed amendment (s. 35.1(b)). More generally, Part V of the Constitution Act, 1982 sets out the amending formulas that apply in respect of different aspects of the Constitution. Only s. 44 provides for the possibility of unilateral amendments by Parliament, which must be “in relation to the executive government of Canada or the Senate and House of Commons”. But even with regard to the bodies referred to in s. 44, Parliament’s power to amend unilaterally is not without limits (Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, at para. 48). Moreover, as in other contexts, Parliament acting alone cannot shield a constitutional amendment from the requirements of the Constitution by asserting that the amending provision is declaratory (Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433, at paras. 105‑6). Thus, it is evident that Parliament cannot amend s. 35 unilaterally.

[107] However, in this case, Parliament is not unilaterally amending s. 35 of the Constitution Act, 1982. Rather, it is stating in the Act, through affirmations that are binding on the Crown (s. 7), its position on the content of this constitutional provision. Section 8(a) provides that the purpose of the Act is to “affirm the inherent right of self‑government, which includes jurisdiction in relation to child and family services”. Likewise, under the heading “Affirmation”, s. 18(1) states that 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”. The words “affirm” and “includes” in ss. 8(a) and 18(1) do not convey any intention to amend s. 35, nor could they have this effect. Instead, they “state as a fact” (Canadian Oxford Dictionary (2nd ed. 2004), sub verbo “affirm”) Parliament’s position on the scope of s. 35. The affirmations take this position [translation] “as true” (Le Grand Robert de la langue française (electronic version), sub verbo “affirmer”), without any need for an amendment. Thus, the effect of these provisions is to affirm, not to amend.

[108] While the word “affirmed” (“confirmé” in French) is also used in ss. 16.1(2) and 35(1) of the Constitution Act, 1982, the above discussion must not be read as identifying the meaning of these two provisions or as altering this Court’s jurisprudence. Here, the focus is on the language used in the Act and on the question of whether Parliament had legislative jurisdiction to enact it.

[109] An affirmation is not an amendment, even if the subject of the affirmation is a provision of the Constitution. As this Court has stated in different contexts, the Constitution “is not some holy grail which only judicial initiates of the superior courts may touch” (Cooper v. Canada (Human Rights Commission), 1996 CanLII 152 (SCC), [1996] 3 S.C.R. 854, at para. 70, per McLachlin J., dissenting, quoted with approval in Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 29). For this reason, “[c]ourts do not hold a monopoly on the protection and promotion of rights and freedoms; Parliament also plays a role in this regard and is often able to act as a significant ally for vulnerable groups” (R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, at para. 58).

[110] Here, Parliament has affirmed its position on the content of s. 35 of the Constitution Act, 1982. It is clear that, in this case, this affirmation is set out not in the Constitution but in an ordinary statute. The division of powers and the separation of powers provided for in the Constitution — between Parliament and the legislatures, in the former case, and between legislative bodies and the judiciary, in the latter — do not prevent Parliament from acting in this manner. Parliament, like the legislatures, can enact legislation that affirms its position on the meaning of the Constitution. As mentioned above, it is for the courts to interpret the Constitution where a case so requires (see, e.g., Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 CanLII 86 (SCC), [1995] 2 S.C.R. 97, at paras. 9‑11; Greenhouse Gas References, at para. 220).

[111] The task that falls to the Court in the context of a reference invites caution: “. . . care must be taken that the interpretation of a question does not amount to a new question” (Reference re Canada Assistance Plan (B.C.), 1991 CanLII 74 (SCC), [1991] 2 S.C.R. 525, at p. 555). Such restraint is called for particularly in constitutional cases: “It is based on the realization that unnecessary constitutional pronouncements may prejudice future cases, the implications of which have not been foreseen” (Phillips, at para. 9). In our view, caution is especially warranted here: the correctness of the position stated by Parliament with respect to the scope of s. 35 does not have to be determined to answer the question asked by the Attorney General of Quebec.

[112] It should be noted that the Attorney General of Canada, as well as a number of the interveners before this Court, argued that s. 35(1) protects Indigenous peoples’ inherent right of self‑government “in relation to child and family services”, as the very wording of the Act affirms. This Court has not yet addressed the question, and it is unnecessary for it to do so in this case to provide the requested opinion on the constitutionality of the Act. The Court has noted that rights of self‑government, insofar as they exist, “cannot be framed in excessively general terms” and cannot extend to a matter — for example, the regulation of gambling — that is not an integral part of the distinctive culture of the First Nations in question (see Delgamuukw, at para. 170; see also R. v. Pamajewon, 1996 CanLII 161 (SCC), [1996] 2 S.C.R. 821, at paras. 27‑28). But the Court has never had to consider a matter as fundamental to the culture and identity of Indigenous peoples as the field of child and family services. While it has not discussed the question from the standpoint of an Aboriginal right of self‑government, the Court has nonetheless referred to the collective dimension of the exercise of certain rights held by Indigenous communities, including: their right to enter into treaties (R. v. Sioui, 1990 CanLII 103 (SCC), [1990] 1 S.C.R. 1025, at p. 1056); their rights incidental to Aboriginal title (Delgamuukw, at paras. 115 and 166; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257, at para. 75); and their Aboriginal rights, such as the right to fish (R. v. Marshall, 1999 CanLII 666 (SCC), [1999] 3 S.C.R. 533, at para. 17; R. v. Nikal, 1996 CanLII 245 (SCC), [1996] 1 S.C.R. 1013, at para. 104) or the right to harvest wood (R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686, at para. 46). For its part, Parliament has declared — through a legislative affirmation — that it considers such a right to be recognized in relation to child and family services. This affirmation is part of the ongoing dialogue on the question among Parliament, the legislatures, Indigenous peoples and the courts (see P. W. Hogg and A. A. Bushell, “The Charter Dialogue Between Courts and Legislatures” (1997), 35 Osgoode Hall L.J. 75, at pp. 79‑80).

[113] This Court’s jurisprudence recognizes the close link that exists between “cultural continuity” for Indigenous peoples, a principle to which the Act expressly refers in s. 9(2), and keeping Indigenous children in their community. As the Court stated in Canadian Western Bank with respect to s. 91(24) of the Constitution Act, 1867, “relationships within Indian families and reserve communities [can] be considered absolutely indispensable and essential to their cultural survival” (para. 61). These relationships are “at the centre of what they do and what they are” (Delgamuukw, at para. 181, quoting Dick v. The Queen, 1985 CanLII 80 (SCC), [1985] 2 S.C.R. 309, at p. 320). Indeed, the Crown has always clearly understood the role played by family in the survival of Indigenous culture. It is no coincidence that the Crown targeted Indigenous children when, at the height of its imperialism, it was seeking to destroy Indigenous cultures (see C.A. reasons, at para. 85).

[114] Ultimately, it will be for the courts to determine, on the basis of the evidence adduced, whether s. 18(1) of the Act falls within the confines of s. 35 of the Constitution Act, 1982. In this regard, Indigenous culture will certainly be a major factor in the analysis, because s. 35(1) “serves to recognize the prior occupation of Canada by Aboriginal societies and to reconcile their contemporary existence with Crown sovereignty” (Desautel, at para. 31). As the Court has stated, s. 35 recognizes and affirms “a constitutional framework for the protection of the distinctive cultures of aboriginal peoples” (Sappier, at para. 22).

[115] Moreover, the fact that this Court has not yet recognized the existence under s. 35(1) of a right of self‑government does not mean that Parliament lacks the means to deal with the question of Indigenous child and family services. It is important to note that, in exercising its jurisdiction under s. 91(24), Parliament chose to affirm that the right of self‑government with respect to this matter is directly tied to s. 35(1) of the Constitution Act, 1982. The Crown is also expressly bound by this affirmation along the path to reconciliation (Act, s. 7). In recent decades, as the Court of Appeal noted, Parliament has received numerous [translation] “studies, reports and surveys on various aspects of the situation of Aboriginal peoples” (para. 108), including from the Truth and Reconciliation Commission and the Royal Commission on Aboriginal Peoples. Indeed, the latter devoted 277 pages of its report to the issue of self‑government (Delgamuukw, at para. 171). Parliament is therefore particularly well positioned to act on the basis of its understanding of the content of s. 35(1) and, more broadly, of the imperatives of reconciliation.

[116] In this regard, it should be noted that the process of enacting the Act was initiated after the Minister of Indigenous Services called an urgent meeting to address problems related to discrimination within the child and family services provided to Indigenous peoples (see C.A. reasons, at para. 173). This process led to nearly 65 meetings in which the federal government consulted with some 2,000 community, regional and national organizations, as well as individuals (see para. 176). Therefore, the Act does not merely speak to Indigenous peoples but also seeks to express their voice. The Act is thus intended to recognize the validity of Indigenous peoples’ stated needs and to provide reassurance that reconciliation will not be imposed on them but will be achieved through cooperation. As stated by the National Chief of the Assembly of First Nations, Perry Bellegarde, whose words were quoted by the then Minister of Indigenous Services: “This legislation will recognize First Nations jurisdiction so they can build their own systems based on their own governance, laws and policies” (House of Commons Debates, March 19, 2019, at p. 26137).

[117] While it is unnecessary to determine the limits of s. 35(1) for the purposes of this reference, it is nevertheless worth noting that Parliament, after thoroughly inquiring into the matter, chose to advance reconciliation by affirming that the right of self‑government in relation to child and family services is “inherent” as well as “recognized and affirmed by section 35 of the Constitution Act, 1982”. This affirmation, set out in s. 18(1), is therefore an important factor in deciding this reference. The importance of this affirmation will undoubtedly also be a factor to consider when the courts are called upon to formally rule on the scope of s. 35.

[118] In any event, the classification of the affirmation under one of the heads of power in the Constitution Act, 1867 must, in the context of the reference question before this Court, be determined by the classification of the Act as a whole. Nevertheless, some discussion of the potential effect of the affirmation on the provincial governments is warranted. Although valid federal legislation may bind the provincial Crown (see, e.g., Her Majesty in right of the Province of Alberta v. Canadian Transport Commission, 1977 CanLII 150 (SCC), [1978] 1 S.C.R. 61, at p. 72; The Queen in the Right of the Province of Ontario v. Board of Transport Commissioners, 1967 CanLII 93 (SCC), [1968] S.C.R. 118, at p. 124; Wilkins, at p. 185), it is not clear on the face of ss. 7, 8(a) and 18(1) whether the affirmation is meant to bind the provincial governments. However, it is open to the courts to give a narrow meaning to legislation that would otherwise exceed the jurisdiction of the level of government that enacted it (see, e.g., Derrickson v. Derrickson, 1986 CanLII 56 (SCC), [1986] 1 S.C.R. 285, at p. 296). This interpretive approach can be justified by the presumption that legislation is consistent with the division of powers (Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6, at para. 33; see also Brun, Tremblay and Brouillet, at para. VI‑2.56; Hogg and Wright, at § 15:13). To the extent that binding the provinces to the position that Parliament has affirmed exceeds federal jurisdiction (a point not directly argued before this Court), it would accordingly be necessary to read down ss. 8(a) and 18(1).
. Whiteduck v. Ontario

In Whiteduck v. Ontario (Ont CA, 2023) the Court of Appeal considers the Constitution Act, 1982 [s.35] ['Rights of the Aboriginal Peoples of Canada'] aboriginal provisions:
[15] I first set out the governing principles for Aboriginal claims under s. 35 of the Constitution Act, 1982, and then apply them to the issues. Nothing in these reasons is intended to determine the merits of the case.

(a) The Governing Principles

(1) Reconciliation is the purpose of Aboriginal law

[16] The “grand purpose”[2] and the “first principle”[3] of Aboriginal law is the reconciliation of Aboriginal and non-Aboriginal Canadians. This “fundamental objective”[4] flows from “the tension between the Crown’s assertion of sovereignty and the pre-existing sovereignty, rights and occupation of Aboriginal peoples”[5] and the need to reconcile “respective claims, interests and ambitions.”[6] The commitment to reconciliation forms the backdrop to any lawsuit that engages Indigenous rights.

[17] Once a Métis community meets the test in Powley for the recognition of Métis rights, these are given effect as Aboriginal rights under s. 35.[7] How those rights are to be reconciled with other competing Aboriginal rights is yet an open question, respecting which we are in open water. In my view, the imperative of reconciliation also applies to competing Indigenous rights.

(2) Every right must have a remedy

[18] It is almost axiomatic that where there is a right, there must be a remedy to protect that right.[8] In the context of the Canadian Charter of Rights and Freedoms, the Supreme Court has held that “courts must craft responsive remedies” and “courts must craft effective remedies”.[9] Like Charter rights, Aboriginal rights are afforded constitutional protection and Aboriginal claimants must be afforded a meaningful forum for redress where they can effectively establish that their rights have been violated.

[19] In that light, the court must be cautious not to foreclose avenues of relief plausibly open to Aboriginal parties whose interests are engaged, particularly in the context of a pleadings motion that engages constitutional issues.


(5) The Crown is the steward of Aboriginal resources

[23] The concept of the Crown as steward of Aboriginal resources is implied in Crown sovereignty, but is subject to the exercise of Aboriginal rights. This flows from the previous principle – the Crown’s duty to consult and accommodate is fundamental – and from McLachlin C.J.’s comments in Tsilhqot’in Nation, at para. 91: “once title is established, the Crown cannot proceed with development of title land not consented to by the title-holding group unless it has discharged its duty to consult and the development is justified pursuant to s. 35 of the Constitution Act, 1982.” This principle has more general application to Aboriginal rights beyond issues of title.

[24] The Crown is responsible for addressing Indigenous rights under s. 35, but what the Crown does is subject to the court’s review for constitutionality under the principles set out in this part of the reasons.


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Last modified: 12-02-24
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