Photo: Sean Kilpatrick The Canadian Press The Supreme Court of Canada ruled on Friday in a jurisdictional dispute between Ottawa and Quebec over the provision of child care by Indigenous communities.
The Supreme Court of Canada completely rejects Quebec's arguments and upholds the constitutionality of a federal law, in its entirety, which allows Indigenous communities to create their own version of the Protection Directorate youth (DPJ).
“The law represents significant progress in terms of reconciliation,” boast eight judges of the country’s highest court, in a unanimous 98-page judgment delivered Friday.
Even though children's services are, in general, a provincial jurisdiction, the Court ruled that the federal Parliament “clearly” has the right to delegate this jurisdiction when it concerns the First Peoples of the country.
This, because the Constitution Act of 1867 provides that the federal government has broad jurisdiction over what was called at the time “Indian quiddity”, which can be translated in contemporary terms as ” “indigenousness, that is to say Aboriginal people as Aboriginal people”, explains the highly anticipated judgment.
Quebec's lawyers had instead argued in Ottawa in December 2022 that the new federal law amounted to creating an indigenous “third order of government”, in addition to making Canada a “supervisory federalism” subservient to the provinces to Ottawa in some of their SKILLS. The judges of the highest court in the country reject this argument.
“Contrary to what the Attorney General of Quebec argues, the Canadian “constitutional architecture” is in no way shaken. »
The federal government passed the First Nations, Inuit and Métis Children, Youth and Families Act in 2019, under its bill name, C-92, which affirms in its preamble the “inherent right to self-government” of indigenous peoples in family matters. It also establishes national minimum standards for indigenous children’s services that the provinces must respect.
A law appreciated by judges
Ottawa thus wanted to respond to its commitments made within the framework of the Truth and Reconciliation Commission and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Justices applaud federal “opening of Parliament.” They note his “innovative law” which combines like a “three-strand braid” international, national and indigenous legal norms.
Quebec maintains on the contrary that this federal law risked undermining its own efforts at reconciliation with indigenous peoples, by proposing to short-circuit its own path to create indigenous DYPs. The Legault government has always said it agrees to adapt child services to indigenous cultures.
Most of the indigenous nations present in Quebec preferred the federal route of C-92 to what the Quebec government offered them.
In its judgment on Friday, the Supreme Court goes even further than the Quebec Court of Appeal, which invalidated two articles of federal law, which had the effect of forcing communities to negotiate with Quebec to create their own children's services. Armed with this Friday judgment, indigenous communities will be able to proceed with or without the approval of Quebec.
Judgment applauded
Reacting to the judgment in a press conference organized in an Ottawa hotel, where a group of children took place at the front, the Assembly of First Nations Quebec-Labrador (APNQL) welcomed the judgment of the Supreme Court, “which allows the writing of a new page in [its] history”.
“We have never ceded our rights or delegated to any government […] the care of our children. Today, this is what this judgment finally recognizes,” reacted chef Ghislain Picard, whose speech sparked applause from the public, who came from different communities and crowded into the cramped room.
Chief Picard estimates that around fifteen communities in Quebec were waiting for this judgment to create their own institutions. In passing, he criticizes Quebec's legal challenge, which slowed down child protection projects by four years, he believes.
“The principle of delegation of power is definitively buried [with this judgment]. We are facing a new context […] of cooperation and collaboration. […] It’s a new paradigm,” he says.
At his side, the leader of the Atikamekw community of Opitciwan, Jean-Claude Mequish, testified that he “encountered a lot of pitfalls, a lot of difficulties” in putting his own law on child services on track, due to resistance from the Quebec government. He accuses the province of having avoided three-way meetings on this project, where only the federal government would have presented itself.
The government of Quebec is also expected to react to the judgment during the day.