The Supreme Court of Canada’s ruling on the constitutionality of Bill C-92: not the aboriginal rights victory we had hoped for

The recent ruling by the Supreme Court of Canada (“SCC”) in the Reference re An Act respecting First Nations, Inuit and Métis children, youth and families ¹(the “Act”), with the subject Act ² commonly known as Bill C-92, was certainly a victory for Indigenous governing bodies (“IGBs”) and their members. This ruling affirms that the Act is constitutional, giving IGBs the ability to assert jurisdiction regarding child and family services delivered and carried out within their respective communities. However, while this victory provides a multitude of positive legal and practical outcomes for IGBs to enact and implement their own laws and policies with respect to child and family services, a further analysis of the SCC’s decision reveals that it is not quite the Aboriginal rights victory Indigenous peoples were hoping for. Specifically, there seems to be a commonly held misunderstanding with respect to Section 21 of the Act, which states that laws created by Indigenous groups have the force of federal law. The general misconception seems to be that the Act was determined to be constitutional through a finding that Aboriginal self-governance over child and family services  is a protected Section 35 Aboriginal right. This op-ed discusses why this SCC ruling is not rooted in s. 35 rights, but instead hinged upon a common legislative drafting technique, which ultimately still requires voluntary cooperation by the federal government to give Indigenous laws the effect of federal law. Consequently, this case did not attain the meaningful legal gains the Indigenous community was anticipating with respect to Aboriginal rights.

Given the nuanced verbiage inherently present in SCC decisions, it is not surprising that in the days following the ruling on this reference case, there were a multitude of Indigenous organizations, IGBs and individuals espousing how this was a landmark legal decision for Aboriginal rights. It is perhaps even less surprising given the s. 35 approach we had been anticipating following the 2022 decision put forward by the Québec Court of Appeal (“QCCA”)³. That decision specifically stated: “Ultimately, however, it is for the courts to determine the constitutional validity of Parliament’s legislative choice. This necessarily implies that in ruling on the validity of the Act, the Court must consider the scope of s. 35 Aboriginal rights” [emphasis added]. In short, the QCCA’s analysis was focused on the existence of the s. 35 right of self-government over child and family services, and whether Aboriginal laws could override federal and provincial legislation, within the current Canadian constitutional architecture, by virtue of such a s. 35 right.⁴ Ultimately, the QCCA found that the regulation of child and family services is an existing generic Aboriginal right, protected by s. 35, that extends to all Aboriginal peoples, ⁵ but that s. 21 was unconstitutional ⁶ as its purpose was to “extend the doctrine of federal paramountcy to the exercise of the right to Aboriginal self-government in relation to the regulation of child and family services.” ⁷

Consequently, much of the Aboriginal law community was expecting the SCC decision to be framed around the scope of s. 35 and Canada’s constitutional architecture. So upon initially reading the headlines that the SCC unanimously upheld the Act as constitutional, I was one of those community members who was excited to read about the implications this would have on Aboriginal rights law. Unfortunately, I was left finding the decision anticlimactic. This was not a case hinging on s. 35 Aboriginal rights. In fact, the SCC did not even go as far as the QCCA did in stating that the regulation of child and family services was a generic Aboriginal right, extending to all Aboriginal peoples, but instead stated that “the scope of s. 35 does not have to be determined to answer the question asked by [Québec].” ⁸ They did not need to consider the scope of s. 35 and so they did not. They simply stated that while their decision does not negate that a right to self-government may possibly exist and be recognized under s. 35, at this time “it remains an open question.” ⁹ Instead, the SCC determined that s. 21 of the Act is constitutional because it is simply an incorporation by reference provision, ¹⁰ a commonly used legislative-drafting technique, wherein the Federal government will be adopting Indigenous laws as federal law on an anticipatory basis, ¹¹ as opposed to through the piecemeal adoption of these laws as they emerge. That is to say, the federal government will be voluntarily adopting the laws of IGBs as federal laws, with the Act as the vehicle to do so, in accordance with the jurisdiction afforded to them over Indigenous peoples by s. 91(24) of The Constitution Act, 1867. ¹² Ultimately, this means that Indigenous self-government has yet to be judicially recognized, and that we are still relying on Canada’s ‘courtesy’ to have our own sovereign laws afforded the power to override conflicting provincial and federal settler-colonial laws.

In writing this op-ed, I do not wish to dismiss the very tangible and positive outcomes that the Act itself will have upon our ability to ensure the present and future wellbeing of Indigenous children. It is, without a doubt, a win for the Indigenous community in Canada. However, as an Indigenous woman studying Aboriginal law, it is simply not the legal victory I was hoping for. It is unfortunate that this case did not bring before the SCC the ultimate question of whether or not we, as Nations, have an existing and protected generic Aboriginal right to self-government, so that Indigenous self-determination can be upheld and fully actualized. Instead, we remain reliant on Crown cooperation and benevolence to give our laws ‘teeth’, which thus far has only been extended with respect to child and family services. While emerging developments in our reconciliatory relationships with Crown actors is promising, there remains a power imbalance that undermines the effectuation of true Nation-to-Nation dealings. And so, ultimately, this decision was not much of an Aboriginal rights victory at all, despite being a monumental victory for Indigenous peoples in Canada.

CBA Saskatchewan would like to congratulate the recipient of the CBA Saskatchewan 2024 Indigenous/Aboriginal Law Student Essay Contest and the $1000 prize.

Kristyn McDougall | She/Her | Métis/Michif

I am a Michif woman from Prince Albert, SK, who currently resides in Saskatoon, SK on Treaty 6 Territory and the Homeland of the Métis Nation. I am currently a third-year law student at the University of Saskatchewan’s College of Law, focusing my studies on Aboriginal Law and Indigenous sovereignty and legal orders.

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