Blog by Jonfranco Monaco. Podcast by Roisin Boyle.
In 2019, the Federal Government passed Bill C-92, a groundbreaking piece of legislation identifying the inherent right to Indigenous self-government in Canada with respect to child and family services. In response to the new bill, the Government of Quebec launched a constitutional challenge against the Federal Government. The Schulich School of Law’s own Professor Naiomi Metallic is advocating for the First Nations Child and Family Caring Society, an intervenor in this case on the side of the Federal Government. The Dalhousie Law Journal’s Roisin Boyle had the privilege of sitting down with Professor Metallic and gaining more insight into this dispute over Bill C-92.
There are two major components to Bill C-92, both of which are responding to several issues that have been identified over the years with respect to Indigenous child welfare services and systemic problems plaguing these services nationwide. The bill seeks to implement national standards in providing appropriate Indigenous welfare services, intending to overlap with existing provincial services to better help keep Indigenous children in their communities and with their families. As well, the bill looks to establish a self-governance framework permitting Indigenous governments to pass their own laws and provide them their own ability to address child welfare issues in their communities.
Quebec’s position against the introduction of Bill C-92 is twofold. Firstly, they are arguing that under Section 91(24) of the Constitution Act, Canada does not have the jurisdiction to pass this bill. Here, Quebec is looking to highlight the problematic nature of national standards that this bill would impose on Quebecois public servants. Secondly, Quebec is objecting to Canada passing legislation generally recognizing the right to self-government (with mind to the specific area of child welfare). Quebec is claiming that the status quo of, in Professor Metallic’s words, “legislative neglect” towards Indigenous Canadians has become embedded in the fabric of Canada’s constitutional architecture, so much so that any modification to this status quo should require a constitutional amendment to be enacted. Professor Metallic also points out that, historically, Quebec has been complicit in its neglect of Indigenous issues, yet Quebec has framed its challenge around the incursion on its powers.
On the other side of this coin, Canada is arguing that under Section 91(24), it does have the jurisdiction to pass Bill C-92. Furthermore, Canada claims this does not create a new right to self-government, as that right already exists in Section 35 of the Constitution Act, 1982. The Caring Society’s role as intervenor in this dispute is to provide more context around the human rights case at hand. Professor Metallic points out that there is a lot of potential to advance reconciliation that would come from Canada using its power under Section 91(24), and that this is a matter of recognizing Indigenous peoples’ equality and needing this legislation to do so.
Although you cannot be certain of any outcome at this stage, Professor Metallic remains hopeful that the courts will see the importance of governments having a fundamental role in helping to protect and implement Indigenous rights.
If this is an area that you would like to learn more about, we urge you to listen to the full episode of The Dalhousie Law Journal Podcast on Spotify.