Only the province of Alberta supports Quebec in its challenge to an “inherent right” to indigenous self-government, the Supreme Court heard Thursday.
The Quebec prosecutor received little support from the rest of the federation during the second and final day of hearings in his challenge to the federal law on Indigenous child services. British Columbia, Manitoba and the Northwest Territories have sided with Ottawa in the land’s highest court.
Only Alberta digests as badly as Quebec the affirmation of an “inherent right to self-government”, included in the text of the law adopted by the House of Commons in 2019 under the name of C-92. The other provinces and territories did not invite themselves to this final round of the legal debate.
“For me, that means that Alberta and Quebec have work to do in terms of their relations with the First Nations,” drops the line at the end of the line Richard Gray, manager of social services at the Health Commission and First Nations of Quebec and Labrador social services (FNQLHSSC).
Quebec pleaded before the Supreme Court of Canada on Wednesday that it would be to modify the “constitutional architecture” to confer the right on First Peoples to adopt laws on child services that take precedence over provincial laws. His attorney also described Ottawa’s approach as “supervisory federalism” in his jurisdiction.
On the contrary, the federal government maintains that the constitution allows it to unilaterally confer such self-government on the Aboriginal peoples. He argues that section 35 of the constitution recognizes the existence of their ancestral rights.
Indigenous claim
Thirty nations or indigenous groups also presented their opinion on the issue to the nine judges of the Supreme Court on Thursday. The recognition of an “inherent right” to their self-determination was a consensus, and in particular their right to create their own version of the Direction de la protection de la jeunesse (DPJ).
The protection of children “is at the heart of human dignity” and a responsibility that indigenous communities have always exercised, for example pleaded Marie-Claude André-Grégoire, the lawyer representing the Innu of Uashat Mak Mani-Utenam.
The Conseil des Atikamekw d’Opitciwan, which was the first in Quebec to become autonomous in its child protection services under the new federal law, in 2021, also shared its experience before the judges.
His lawyer, Frédéric Boily, clarified that under the new Atikamekw Social Protection Act of Opitciwan (LPSAO), the Quebec DPJ transferred certain files of children living in the community. “But the same reasoning was not applied to children outside the community,” he laments.
Under a judgment by the Quebec Court of Appeal, the communities must negotiate with the province for at least a year before being able to have their own DYP. “Reasonable efforts had been made to make a coordination agreement with Quebec. Unfortunately, there was no result,” said Mr.e Boilly.
Long-awaited judgment
Quebec maintains that it is at the forefront of the country in granting the right to First Peoples to manage their own child services. Under section 37.5 of Quebec’s Youth Protection Act (YPA), a nation can enter into an agreement with the provincial government to establish its own system.
Only the Atikamekw of Manawan and Wemotaci have entered into this type of agreement with Quebec. However, like the Atikamekw of Opitciwan, at least 16 other communities are considering going through the federal C-92 route to get their own DYP.
If the Supreme Court were to side with Quebec’s arguments, it would amount to going back to square one and giving back to Quebec the power to drag out negotiations, fear Aboriginal stakeholders. “It means continuity, again, with colonial laws,” explains Marjolaine Siouï, General Manager at the FNQLHSSC.
“Instead of investing huge costs in legal fees, the Quebec government could have helped families and children. »
Supreme Court justices, including new Indigenous Justice Michelle O’Bonsawin, did not issue their decision directly on Thursday, but instead took the case under advisement.
Speaking Thursday evening before the Assembly of First Nations Chiefs, Canadian Prime Minister Justin Trudeau promised to be “always there […] when it comes time to fight for treaty rights, section 35 rights [de la constitution]. »
He was responding to a chief who urged him to do battle with Alberta’s controversial “sovereignty” law, passed earlier Thursday. The Prime Minister had promised in 2017, during a speech before the General Assembly of the United Nations, a “transition towards true autonomy” of the indigenous nations.