By confirming the right to create their own child protection system for Indigenous communities, in full compliance with the Canadian Constitution, the Supreme Court of Canada has opened a royal road to the self-government of Indigenous peoples, demanded loudly shouted by the latter. Quebec at the same time suffers a solid rebuff since the highest court of Canada considers that the “constitutional architecture” is not shaken, returning a Quebec grumbling at the failure of its talks with the indigenous peoples.
This judgment of the Supreme Court is substantial. It first confirms the validity of the Act respecting First Nations, Inuit and Métis children, youth and families, which established the right of Aboriginal people to have their own child protection system. He then rejects the arguments of Quebec, which challenged the validity of this law before the courts from the angle of federal interference in the jurisdictions of the provinces. The Supreme Court in a way salutes Canada’s original efforts to achieve through legislation the “reconciliation” hoped for for Indigenous people, while respecting “Canadian constitutional architecture”. This judgment will inevitably have consequences.
Indigenous peoples rightly celebrate the importance of the court’s reasoning, because it touches on essential parts of their identity and their claims. It is about the protection of children and families, through whom, over the decades, they have suffered so many destructive offenses that we only think of the tragedy of residential schools for Aboriginal people. The court recognizes Canadian law as the primary objective and benefit of protecting Indigenous children “by promoting the provision of culturally appropriate child and family services.” The court upholds the right to self-determination of indigenous peoples, that is, the fact of being autonomous and “to administer themselves in all matters relating to their internal and local affairs.” This is a masterful step forward.
Far from the quibbles of constitutional interpretation, the federal law above all responds to a troubling reality. The final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls notes that “alongside the residential school system, the child welfare system is […] became a process of assimilation and colonization in which children were forcibly removed from their homes and then placed with non-Indigenous families.” In Canada, according to 2016 census data, approximately 7.7% of children under the age of 15 are Indigenous, while they represent 52.2% of children placed in private foster families, recalls the judgment of the Supreme Court.
In Quebec, the imposition of the Quebec DYP model in indigenous communities is causing hiccups, to say the least. In his final report, Commissioner Jacques Viens noted that it seemed “necessary and urgent that the control exercised by state representatives be reduced”. Even if Quebec tried to relax its Youth Protection Act to provide better care for the communities themselves, this was not considered sufficient by the First Nations. Quebec, which had done so well with the peace of the brave by establishing negotiations as equals, has recently accumulated blunders and blunders in terms of relations with Indigenous people.
Advocating a principled objection to federal interference in provincial affairs – an understandable position, as usual – Quebec drew a blank by asserting its rights to the detriment of those of indigenous peoples. By doggedly fighting in court for four long years, he gave the unfortunate impression that he was neither sincere nor proactive in his talks with indigenous peoples. His main argument, that of rejecting a federal law which directly created a third order of autonomous government, was demolished by the Supreme Court. Yes, said the court, there will indeed be three States.
Last week, during the study of Bill 37 on the Commissioner for Children’s Welfare and Rights, the head of the Association of First Nations of Quebec and Labrador, Ghislain Picard, was surprised, like Régine Laurent, that the project does not provide for an “autonomous” commissioner for the rights of indigenous children, but rather an “associated” commissioner. The whole thing happened without the consent of the indigenous nations, which Mr. Picard described as “testing”. Alongside the royal road that the federal government has just opened to the autonomy of indigenous peoples, Quebec therefore acts as an obstacle to going in circles. At a time of reconciliation, facade compromises no longer hold water.