In its reference relating to federal Bill C-10 on youth protection and self-government, the Quebec Court of Appeal rendered a major decision, which modifies the Canadian constitutional framework, at least what some understood, starting with the jurists of the Quebec government. We can now speak of the emergence of a third order of government capable of making its own laws, like the parliaments of Ottawa and Quebec.
With Bill C-92, the federal government bluntly affirms that the inherent right of Aboriginal self-government is “recognized and affirmed by section 35” of the Constitution Act, 1982, a matter which only the courts are called upon. to be decided. The Court of Appeal considers that this process is “unusual”, especially since the Supreme Court did not rule directly on this point. Sibylline, section 35 merely states in a general way that the “existing rights — aboriginal or resulting from treaties — of the aboriginal peoples of Canada are recognized and affirmed”. Although the Court of Appeal finds the drafters of Bill C-92 somewhat presumptuous, it agrees with Ottawa. This right of self-government exists and extends to jurisdiction over child and family services. This autonomy exists from all eternity, so to speak; Aboriginal people governed themselves before the arrival of Europeans. This right to self-government may have been flouted, in particular by the Indian Act, but it is not extinguished.
It’s a big development. In 1982, even the aboriginals believed that this right was not guaranteed by section 35 and were in fact very unhappy about it. Provided for in the Constitution Act of 1982, negotiations subsequently took place with representatives of the First Nations with a view to formally recognizing this right, but they were unsuccessful. Ten years later, the Charlottetown accord provided for the creation of this third order of Aboriginal government, but, as we know, the agreement was rejected by referendum.
Before the Court of Appeal, the Attorney General of Quebec presented the classic arguments: youth protection is an exclusive jurisdiction of Quebec, on which Bill C-92 encroaches, and the creation of a third order of government can only be done through constitutional change or, as is the case with the James Bay Agreement, through negotiated treaties. We will remember Prime Minister Philippe Couillard, who maintained that the Canadian Constitution should one day or another be reopened to meet the demands of the First Nations; this would then be an opportunity for Quebec to obtain its recognition as a distinct society. With the reference, this possibility of negotiating a reform of the federation so dear to Quebec federalists vanished. Farewell calf, cow, pig, brood…
In fact, the reference speaks of “cooperative federalism” and of a “modern vision of federalism [qui] allows more and more overlap between the federal government and the provinces”. The Court of Appeal, however, invalidated the sections of C-92 which gave preponderance to Aboriginal laws over provincial laws. It’s called saving the furniture.
The Court of Appeal tells us that the federal Parliament wanted to give “a boost” to the recognition of Aboriginal self-government by choosing youth protection, where the problems are glaring. It is a sort of Trojan horse for implementing a new general approach aimed at transferring responsibilities from the federal government to Aboriginal authorities, not only in matters of child and family services, but also in the areas of education and health. To be continued.
Meanwhile in the National Assembly, elected officials are considering Bill 15 amending the Youth Protection Act, which contains provisions applicable to Aboriginal people that are more respectful of their culture and customary law. But that will not be enough. The Legault government would do well to prepare for what happens next.
Playing the constitutional demiurge, the Court of Appeal ratified a desirable development in the recognition of Aboriginal nations by confirming their autonomy in one of the areas of jurisdiction affecting their identity. It’s only a beginning. Meanwhile, Quebec, still confined within a constitutional framework imposed on it, remains a province like the others.