In a recent text Ideas (“Reconciliation and Constitution, a necessary link”, The duty, July 19), Professor Pierre Cliche addresses the difficult question of the place of Aboriginal peoples in the division of powers in Canadian constitutional law. Its starting point is the United Nations Declaration on the Rights of Indigenous Peoples Act, passed in 2021 by the Federal Parliament. Clarifications are needed, first on the scope of this law, then on the place of the self-government of Aboriginal peoples in the Constitution.
The scope of the law is limited, since it seeks to harmonize federal laws with the United Nations Declaration. In the preamble to the act, the Canadian government also recognizes that provincial governments have the ability to establish their own ways of contributing to the implementation of the Declaration by adopting measures falling within their jurisdiction, and it says ready to work with them to achieve the goals of the Declaration. It is therefore difficult to see in this law an invasion of provincial jurisdictions.
As for the self-government of Aboriginal peoples, the author omits to point out that last February, in its opinion on the Act respecting First Nations children, youth and families, the Quebec Court of Appeal concluded that the regulation of child and family services was a constitutional right of Indigenous peoples.
According to the Court of Appeal, the objective of reconciliation underlying section 35 of the Constitution Act, 1982 rules out the idea that the Constitution Act, 1867 divided all areas of jurisdiction between the federal and the provinces and prevents aboriginal peoples from regulating themselves in matters that concern them. This “third order of government” — if indeed the Supreme Court confirms its existence — would therefore not emanate from the federal government, according to the Court of Appeal, because the laws concerning child and families adopted by Aboriginal governments “arrange under inherent Aboriginal jurisdiction, not federal jurisdiction.
To see in video