Ottawa backs Indigenous child welfare law after Quebec court declares parts of it unconstitutional

Indigenous Services Minister Patty Hajdu says Ottawa will continue to back its Indigenous child welfare law despite a Quebec court ruling that found parts of the law unconstitutional.

The Quebec Court of Appeal issued a decision yesterday finding the law constitutional apart from two key sections.

The court took issue with the section of the law that allows Indigenous child welfare laws to supersede provincial laws when they conflict.

Hajdu wouldn’t say if the federal government will appeal the ruling. She said that Ottawa will do “whatever it takes” to ensure First Nations people have autonomy over Indigenous child welfare.

“The federal government’s commitment to upholding C-92 and [the] principles behind C-92 remains firm,” Hajdu told a Thursday news conference.

“This is a critical ingredient in reconciliation … Indigenous people having autonomy over their ability to care for their children, to reconstitute families, to support healthy child development. And we will be there for Indigenous communities in their endeavours.”

‘A bit of a slam dunk for the Indian Act’

The Quebec government told CBC News it’s also taking time to review the judgment before deciding whether to appeal.

It referred the legislation to Quebec’s highest court as a constitutional question.

“It’s quite a devastating decision,” said Mary Ellen Turpel-Lafond, professor of law at the Peter Allard School of Law at the University of British Columbia.

“The only kind of law that would be allowed under this decision is one that’s clearly subordinate to the provincial law.”

Turpel-Lafond, who was involved in consultations on developing the legislation, called the decision a setback for Indigenous children, families and self-government.

She said the work First Nations, Métis and Inuit governments are doing to introduce new laws and policies to reunite families is now in doubt.

Turpel-Lafond said the ruling needs attention from Prime Minister Justin Trudeau.

“Likely this will pit people and make a political issue about whether or not the Trudeau government has stretched the Constitution too far,” Turpel-Lafond said.

She said the Quebec court’s decision should be reviewed by Supreme Court of Canada — a process that could take two years.

“This is a bit of a slam dunk for the Indian Act,” she said.

“If you happen to be a kid that’s not living in the province that’s particularly friendly to Indigenous peoples having rights, you may not get any rights. That’s not what we want.”

Ruling more a win than a loss, lawyer says

Meanwhile, David Taylor, counsel for the First Nations Child and Family Caring Society, compared the ruling to a 4-1 victory in a hockey game – a solid win with the other side scoring a point.

“People should be very encouraged by this decision,” he said.

“It’s not going to limit the ability to get out of the starting blocks for First Nations, Inuit and Métis communities, but there is more of an obstacle if the Quebec Court of Appeal decision is ultimately how matters pan out.”

The ruling doesn’t affect communities’ ability to make their own laws, said Taylor.

He said it endorses the constitutional right of Indigenous people to self-government over child and family services.

Provinces can’t prevent Indigenous communities from creating their own laws, Taylor said — but they could try to challenge them.

“It might be a matter of trying to put up some fences,” Taylor said. “The provincial government can’t dictate the content of First Nations, Inuit and Métis law.”

Taylor said such challenges to the law are likely to play out on a case-by-case basis and it will be up to the provinces themselves to prove their case.

He said the framework Ottawa laid out under C-92 gives Indigenous communities some options. They can make an agreement on child welfare with three levels of government — Indigenous, federal and provincial.

If they can’t strike a deal, he said, they can bring in their own laws, which would come into force under the legislation 12 months later.

“The question is going to become where does the rubber hit the road,” Taylor said. “Is it a province that says, ‘Well, I’m going to challenge this law’? Is it a legal proceeding?”

The three main national organizations representing First Nations, Inuit and Métis peoples are analyzing the decision.

“This legislation should open a space for Inuit to exercise our rightful jurisdiction,” said Natan Obed, president of the Inuit Tapiriit Kanatami.

“We were partners in the co-development of the legislation and we are committed to ensuring that it is allowed to serve its intended purpose for our people.”