Supreme Court declares Indigenous child welfare law constitutional

The Supreme Court of Canada has unanimously upheld the Trudeau government’s Indigenous child welfare law, dismissing Quebec’s appeal in a landmark opinion affirming Indigenous Peoples’ jurisdiction over child and family services.

The high court sided with the Canadian government in a decision rendered Friday morning, reversing a Quebec Court of Appeal decision to declare the law partly unconstitutional.

“The act as a whole is constitutionally valid,” the court concluded.

“Developed in co-operation with Indigenous Peoples, the act represents a significant step forward on the path to reconciliation.”

Bill C-92, An Act Respecting First Nations, Métis and Inuit Children Youth and Families, became law in 2019. It affirms Indigenous nations have jurisdiction over child and family services and outlines national minimum standards of care.

The Quebec government opposed the law on jurisdictional grounds, arguing Ottawa overstepped its legislative authority, infringed provincial jurisdiction and effectively recognized Indigenous peoples as a third order of government.

The Supreme Court concluded the federal Liberal government was within its jurisdiction, and did not create a third level of government, but rather recognized rights already protected by the Aboriginal rights section of Canada’s Constitution.

The court also found the law forms part of Parliament’s implementation of the United Nations Declaration on the Rights of Indigenous Peoples.

“The act creates space for Indigenous groups, communities and peoples to exercise their jurisdiction to care for their children,” the court wrote. 

“The recognition of this jurisdiction invites Indigenous communities to work with the Crown to weave together Indigenous, national and international laws in order to protect the well-being of Indigenous children, youth and families.”

The Quebec Court of Appeal rejected two clauses that say Indigenous laws have the force of federal law and will prevail over conflicting provincial laws. Both Ottawa and Quebec appealed that ruling to the Supreme Court.

The Supreme Court ruling suggests such conflicts between laws would be resolved by courts when they arise.

The entire nine-judge bench heard the case, though retired justice Russell Brown didn’t participate in its final disposition. The reasons are authored by the court as a whole and not any one judge.