Christiane Guay, Associate professor of social work, Université du Québec en Outaouais
Naiomi Metallic, Assistant professor of law, Chancellor’s Chair in Aboriginal Law and Policy, Schulich School of Law, Dalhousie University
Hadley Friedland, Assistant professor of law, University of Alberta
Six months after Bill C-92 passed in Parliament and mere weeks before the new law comes into force on January 1, 2020, Québec initiated a reference before its Court of Appeal to challenge the constitutionality of An Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24. We believe the reference is unlikely to succeed in quashing the Act but certain to cause delay.
It is a delay that Indigenous children and families can ill afford. In Quebec, slightly less than 3% of children are Indigenous, while they make up 15% of children placed in foster care. Provincial child welfare laws contribute to the over-representation of Indigenous children at all stages of the system. Indigenous children placed in non-Indigenous foster families are not only deprived of their families, they are denied the opportunity to grow in their communities and learn their language and culture. In the 2017 Brown v Canada case on the ‘Sixties Scoop,’ numerous experts found this causes “great harm.” Research also shows that Indigenous children have worse outcomes and are more likely to die in care than non-Indigenous children once they are in care.
In reality, child protection systems, based on non-Indigenous conceptions of the family and administered by non-Indigenous decision-makers, predictably produce harmful and discriminatory effects when they are applied in an Indigenous context. This is why the Truth and Reconciliation Commission (TRC) said that these regimes are simply continuing the assimilation processes started by the Indian residential schools.
The major innovation of Bill C-92 is that it finally, and logically, sees the solution to this intergenerational and interjurisdictional “humanitarian crisis” lying in recognizing Indigenous peoples’ power to legislate and administer child welfare services for Indigenous people. Numerous studies have shown that self-government with respect to social services produces more positive results than the status quo. It improves the socio-economic conditions of communities and promotes the development of community-driven approaches to ensure Indigenous’s children’s long term security, healthy development and to preserve their cultural identity.
Bill C-92 also responds to TRC Call to Action #4 to establish important minimum standards so all Indigenous children and families receive the same baseline protections no matter where they live or if they move between provinces. In the United States, similar legislation was passed by Congress in 1978, recognizing Indigenous peoples’ inherent sovereignty and setting national standards concerning Indigenous children in all states. While not perfect, over the past 40 years, this law has significantly reduced over-representation and encouraged effective local innovations for strengthening Indigenous families.
Rather than embarking on the path of change, Quebec is seeking to have Bill C-92 quashed on the bold assertion of exclusive provincial jurisdiction over Indigenous child welfare matters. This is unprecedented. No province, including Quebec, has ever insisted they have exclusive responsibility for delivering essential services for Indigenous peoples. Quite the opposite. Rather, time and time again, the provinces and federal government have played hot-potato with Indigenous issues. The National Inquiry into Missing and Murdered Indigenous Women and Girls stated that this “interjurisdictional neglect” violates s. 7 of the Charter.
It does not seem the province considered the full implications of what it is asking of the Quebec Court of Appeal. A finding of exclusive jurisdiction for Quebec in relation to Indigenous child and family services does not only mean the nullification of Bill C-92. Legislative responsibility entails fiscal obligations. It would seem Quebec wants jurisdiction without strings attached, but that does not seem likely (or respectful to the fundamental rights of Indigenous peoples). And not only would Quebec have to pay for the delivery of child welfare services in Indigenous communities, a confirmation of jurisdiction in this case would surely also entail exclusive provincial jurisdiction in similar areas like social assistance, housing, water treatment and emergency services. A finding for Quebec would also result in all other provinces being found to be in a similar situation. In addition, surely the numerous tripartite self-government agreements that have been negotiated will be open to challenge by the federal government on the same grounds.
Supreme Court of Canada precedent strongly suggests that Quebec’s gamble is foolhardy. The Court favours broad overlapping jurisdiction in relation to most matters. In Canard and Natural Parents , the Court confirmed that the Parliament may legislate in respect of “Indians” in areas that overlap with provincial powers (in the areas of wills and estates and adoption, respectively). Indeed, as renowned constitutional scholar Peter Hogg has noted: “[i]f s. 91(24) merely authorized Parliament to make laws for Indians which it could make for non-Indians, then the provision would be unnecessary.” In other words, the federal power in relating to “Indians” must include the power to legislate over matters for Indigenous people that would otherwise be provincial for other citizens, or else the federal power would be meaningless.
In keeping with these precedents, Bill C-92 is a concurrent jurisdiction model. Family law has always been an area of concurrent jurisdiction so Quebec courts already routinely apply both federal and provincial statutes to reach the best interests of the child in particular circumstances. The sky is not falling.
Instead of initiating costly and regressive court challenges, Quebec could take a leadership role in initiating interjurisdictional cooperation and coordination. Respectful nation to nation conversations and minimal standards of care to increase Indigenous children’s wellbeing shouldn’t be seen as a threat to anything but the appalling statistics.