Quebec on Wednesday asked the Supreme Court to reject “oversight federalism” in its challenge to the federal law on Indigenous child services.
“We have never claimed that the federal government could not act for Indigenous children, but it is a question of how far,” argued Quebec government lawyer, Me Samuel Chayer, before the nine judges of the highest court. from the country.
The last round of the long legal battle between Quebec and Ottawa, as well as several indigenous organizations, was launched on Wednesday. At the heart of the conflict is the federal bill in force since 2020 which aims to make it easier for First Nations, Métis and Inuit to create their own version of the Youth Protection Department (DYP).
The Quebec government has always said it “agrees with the principle” of the federal plan to adapt child services to the culture of Aboriginal children. However, he believes that Ottawa should amend the Canadian constitution if it wishes to confer such “state” powers on Aboriginal organizations.
“It is not because we have the power to make certain laws on a subject that we can adopt laws which modify the constitution, the constitutional architecture”, argued Mr. Chayer.
The Quebec Court of Appeal rejected these arguments last February. It confirmed the validity of the proposed legal framework to create Indigenous DYPs, but invalidated two of its articles, which has the effect of forcing communities to make “reasonable efforts” to negotiate at least a year with the province before to obtain this power.
Supervisory federalism
The jurisdictions of the two levels of government overlap in this matter. Child services, like the DYPs, fall under provincial jurisdiction; the federal government is given authority over the First Nations, named ” [l] es Indians” in the constitutional texts.
Quebec criticizes the An Act respecting First Nations, Inuit and Métis children, youth and families, formerly known as C-92, to impose “minimum national standards”. In short, to dictate to him how to render his services.
“It’s federalism of supervision: the federal government supervises the exercise of the province in its own jurisdiction,” denounced Mr. Chayer.
Quebec has developed its own path to Indigenous DYPs, to which most communities have preferred the federal route. The province thus believes that this Ottawa project “would risk undermining the provinces’ efforts in terms of reconciliation with the Aboriginal peoples. »
Next, the Quebec government believes that Ottawa cannot unilaterally give “native governing bodies” the right to pass laws, administer them and manage the justice system. “The Act creates a third order of government whose powers have no territorial limit,” pleads the Quebec brief.
Inherent right
The Supreme Court thoroughly examined section 18(1) of C-92, drafted as a simple affirmation of the existence of an “inherent right of self-government” of Aboriginal peoples in family matters. The government relied on this concept, which refers to article 35 of the Canadian constitution, to affirm that its new law does not in fact require any constitutional amendment.
“An inherent right is a right that is not delegated by the federal government or the province,” explains Nadir André, a lawyer specializing in Aboriginal law and partner at BLG. The federal government has a new technique: it uses Parliament to affirm the existence of this inherent right. »
According to him, the judgment in this case is likely to be “quite significant” by specifying this legal aspect. Nations that wanted to claim such an inherent right had to prove before the courts that they exercised the claimed power before first contact with Europeans.
Indigenous organizations also spoke before the Supreme Court on Wednesday, all in support of the Canadian government’s arguments. In particular, they argued that C-92 was essential to the national project of reconciliation in Canada.
Justice Michelle O’Bonsawin, newly appointed to the Supreme Court and an Abenaki herself but having grown up off-reserve in Ontario, asked some questions about the definition used for First Peoples: is it simply related to identity and indigenous culture?
Hearings at the Supreme Court will continue Thursday.