Supreme Court Upholds Indigenous Jurisdiction Over Child and Family Services

In a landmark decision released on Friday February 9, 2024, the Supreme Court of Canada unequivocally affirmed the inherent Indigenous right of self-government, including jurisdiction over child and family services. This marks a significant step forward in reconciliation and opens the door to expand the affirmation to other areas of Indigenous jurisdiction under the right of self-government.

Falconers LLP represented Nishnawbe Aski Nation (“NAN”) in its intervention at the Supreme Court of Canada (“SCC”) regarding An Act Respecting First Nations, Inuit and Metis Children, Youth and Families (also known as Bill C-92) on December 7-8, 2023. For more than 50 years, NAN has been advocating for child welfare reform, including as an intervenor in the Canadian Human Rights Tribunal child welfare case over the First Nations Child and Family Services program and Jordan’s Principle.

The appeal at the SCC concerned a reference opinion from the Quebec Court of Appeal with respect to the constitutionality of Bill C-92. Bill C-92 was passed in 2019 and came into force on January 1, 2020. The Act recognizes and affirms the Indigenous right of self-government, including jurisdiction over child and family services, as protected under section 35 of the Constitution Act, 1982. Bill C-92 provides national standards for the provision of child and family services to Indigenous children, youth, and families, and offers a framework for giving effect to Indigenous child welfare laws, including priority over provincial laws where there is a conflict.

The Attorney General of Quebec challenged the constitutionality of the law, claiming the law gave First Nations authority over child welfare that encroached on its provincial jurisdiction. The SCC emphatically upheld the right of Indigenous peoples to create and assert their own child welfare laws and to have those laws accepted, respected, and enforced. In the court’s own words:

“Developed in cooperation with Indigenous peoples, the Act represents a significant step forward on the path to reconciliation. It forms part of the implementation of UNDRIP by Parliament. It also responds to call to action No. 4 made by the Truth and Reconciliation Commission, which calls upon the federal government to establish national standards and to affirm the role of Indigenous governments in the area of child and family services” (para 134).

NAN is a political territorial organization representing 49 First Nations in Northern Ontario, 34 of which are fly-in communities. NAN was formed in 1973 to represent the interests of these First Nations, their communities and their citizens in matters affecting their fundamental rights.

Falconers LLP counsel Julian Falconer, Christopher Rapson, and Mitch Goldenberg were honoured to have appeared on behalf of NAN at the SCC on such an important matter.

Related Documents: 

Media Coverage:

Brett Forester, CBC News (Feb. 9, 2024) – “Supreme Court declares Indigenous child welfare law constitutional”

Sean Fine, The Globe and Mail (Feb. 9, 2024) – “Supreme Court upholds Indigenous right to self-government, child-welfare laws”

Joy SpearChief-Morris, The Toronto Star (Feb. 9, 2024) – “Supreme Court rules Indigenous child welfare law is constitutional”

Mark Blackburn, APTN National News (Feb. 9, 2024) – “Supreme court affirms Indigenous self-government, jurisdiction over child welfare laws”

The Canadian Press, CP24 (Feb. 9, 2024) – “Supreme Court upholds Ottawa’s Indigenous child welfare act, denies Quebec’s appeal”

Brett Forester, CBC News (Feb. 8, 2024) – “Indigenous leaders brace for Supreme Court’s child welfare law decision”

Previous Postings – Dec. 6, 2022

Related Posts