Information on Quebec's Case
Before Supreme Court
The constitutionality of the Act respecting First Nations, Inuit and Métis children, youth and families which came into effect on January 1, 2020 was questioned by Quebec on the grounds that ss. 21 and 22(3) of the Act gave the laws of Indigenous groups, communities or peoples priority over provincial laws and the Act was thus ultra vires (unconstitutional).
Quebec said that its disagreement was with the federal government and not First Nations or Inuit and that:
"Quebec had argued that Ottawa in effect amended the Constitution on its own, illegally, by recognizing self-government as a constitutional right, and by giving primacy to Indigenous laws over provincial ones.
"That set the stage for a precedent-setting battle over the meaning of self-government in Canada's 1982 Constitution. The broadly worded Section 35 protects Indigenous and treaty rights that existed prior to 1982; its scope has evolved slowly over its four decades.
"But the Supreme Court, in a seemingly paradoxical ruling, chose not to make a pronouncement on its view of the right to self-government under Section 35. Instead, stressing pragmatism, it said only that Ottawa has the authority to assert its view of the meaning of the right. That it took the court 14 months to issue its ruling from the time it heard the case -- the average is six months -- suggested to court watchers and participants in the case that the court chose consensus over a more far-reaching, but divided, ruling.
"The court said its practical approach was intended to protect Indigenous children and families now, while avoiding slow and uncertain constitutional and treaty negotiations and court settlements.
The Supreme Court said that "The Attorney General of Quebec referred the question of its constitutional validity to the Quebec Court of Appeal, asking whether the Act is ultra vires Parliament's jurisdiction under the Constitution of Canada. The Court of Appeal held that the Act is constitutionally valid except for sections 21 and 22(3), provisions that give the laws of Indigenous groups, communities or peoples priority over provincial laws. In its view, these provisions exceed Parliament's jurisdiction because they impermissibly alter Canada's constitutional architecture. The Attorney General of Quebec and the Attorney General of Canada appeal from the opinion given by the Court of Appeal."
The court dismissed the appeal of the Attorney General of Quebec and allowed the appeal of the Attorney General of Canada and said that "The Act as a whole is constitutionally valid. The essential matter addressed by the Act involves protecting the well being of Indigenous children, youth and families by promoting the delivery of culturally appropriate child and family services and, in so doing, advancing the process of reconciliation with Indigenous peoples. The Act falls squarely within Parliament's legislative jurisdiction over 'Indians, and Lands reserved for the Indians' under s. 91(24) of the Constitution Act, 1867."
In an article in the Globe and Mail on February 9, journalist Sean Fine reported that more than half of the children in foster care in private homes are Indigenous, though Indigenous children make up under eight per cent of all children in Canada according to 2016 census data cited by the Supreme Court, and that "the court quoted the National Inquiry into Missing and Murdered Indigenous Women and Girls, which said child welfare has become, like residential schools, a site of assimilation and colonization, by forcibly removing children from their homes."
This article was published in
Volume 54
Numbers 1-2 - January - February 2024
Article Link:
https://cpcml.ca/Tmlm2024/Articles/M5400118.HTM
Website: www.cpcml.ca Email: editor@cpcml.ca