It is this Friday that the Supreme Court will decide a jurisdictional dispute between Ottawa and Quebec, but it is the First Nations, Inuit and Métis who will be affected by the decision of the highest court.
At the heart of the confrontation is the provision of child care by indigenous communities. This is a delicate issue since there is a clear overlap in jurisdiction, with child protection being the responsibility of Quebec, but the well-being of Indigenous people being the responsibility of Ottawa.
In June 2019, the Trudeau government adopted Bill C-92, which became the Act respecting First Nations, Inuit and Métis children, youth and families. With this law, Ottawa found itself granting full autonomy to First Peoples in matters of child protection, a decision applauded by First Nations across the country.
Reference to the Court of Appeal
A few months later, however, to the great dismay of the Assembly of First Nations of Quebec and Labrador (APNQL), Quebec asked the Court of Appeal to rule on the constitutionality of this law, seeing it as an encroachment by the federal government. on its exclusive jurisdiction in matters of child protection.
The Court of Appeal rejected the provincial government, affirming that the federal law was constitutional, but still concluded that two articles of the law were not.
The bench of five judges of the Quebec court emphasized that the true character of the law is to ensure the well-being of indigenous children, over-represented in provincial child protection networks, and to promote culturally adapted services.
The Court noted that “the federal government is vested by the Constitution with the primary responsibility for guaranteeing the well-being of the indigenous peoples of Canada.” According to her, “the national principles formulated by the Law […] are compatible with Quebec legislation on child protection.
No precedence of indigenous laws
On the other hand, the Court of Appeal considered that the way in which Ottawa established the framework of the Aboriginal right to self-government in section 21 of its law gave an Aboriginal legislative text the same preponderance as a federal law. “In doing so, it significantly modifies the Canadian constitutional architecture. This process cannot be endorsed. »
The Court of Appeal also rendered inoperative subsection 22(3) of the Act, which states that Indigenous child protection laws “take precedence over inconsistent provisions relating to child services and the family of any provincial law.” According to the five judges, “although the (federal) Parliament has jurisdiction (under the 1867 constitution) to regulate a recognized ancestral right […]this competence does not include that of conferring absolute priority on this right.”
In other words, the division of powers provided for in the constitution does not allow Ottawa to place indigenous laws above provincial laws.
The Indigenous Peoples of Quebec had castigated the government of François Legault for its decision to request a review of the law from the Court of Appeal. Although Quebec has argued that its Youth Protection Act already contains provisions to delegate powers in such matters to indigenous communities, they believe that they do not have to beg or negotiate powers that are their ancestral right. to the autonomy already conferred on them.