Quebec has ‘harder case’ to make as challenge to child welfare law heads to Supreme Court: lawyer

N2N unpacks implications of recent Quebec Court of Appeal ruling

Battle lines are being drawn now that Canada and Quebec are appealing to the Supreme Court over a ruling on federal Indigenous child welfare legislation.

The Act respecting First Nations, Inuit and Métis children, youth and families is supposed to hand jurisdiction back to Indigenous communities, but its future is unclear after Quebec’s Court of Appeal cancelled two of its clauses last month.

Most of the act was deemed constitutional, which gives Ottawa the upper hand when the case eventually comes before the top court — possibly as soon as fall 2022 — says lawyer Naiomi Metallic.

“Quebec has the harder case for certain, especially when its own appellate court didn’t side with it,” Metallic told Nation to Nation host Brett Forester. “The law is very supportive. The judges on that panel at the Quebec Court of Appeal all are reputed very strong judges, and the analysis is very strong.”

The ruling, dated Feb. 10, is “pretty big on a few different fronts,” said Metallic, who is representing the First Nations Child and Family Caring Society as one of the interveners in the case.

But, weighing in at 219 pages and engaging some of the more abstract principles of Aboriginal law, the outcome of Quebec’s so-far-unsuccessful constitutional challenge is not exactly straightforward.

One critical issue is the notion of “paramountcy,” a legal term that describes when and how one set of laws trumps another, Metallic said.

The legislation, as drafted and passed by Parliament in 2019, would give Indigenous child welfare codes the force of federal law, enabling them to prevail over conflicting provincial regulations.

But Quebec’s appeal court nixed that scheme.

So, if Indigenous laws can’t prevail over provincial ones, does that mean the reverse is true? Can provinces override Indigenous child welfare codes enacted under C-92?

Not exactly, said Indigenous Services Minister Patty Hajdu.

“The province cannot override Indigenous laws, and that’s not what the ruling said by the Quebec Court of Appeal,” Hajdu told N2N. “In large, this is good news for Indigenous communities. It’s good news for the legitimacy of C-92, the legislation that enables self-determination in this space.

“We have questions about the exclusion of clauses, and we’ll fight to make sure that the integrity of the entire law is upheld,” Hajdu added.

Read more:

Canada appeals to high court in fight with Quebec over Indigenous child welfare law

‘A pretty clear win for the federal government’: Quebec court rules on federal child welfare law

But the reality is actually a little more complicated, Metallic said.

She said Indigenous laws can prevail over provincial ones under this ruling, but Ottawa can’t make that happen via legislation. Rather, the judges decided, the inherent right to self-government is embedded in Sec. 35 of the Canadian Constitution, which affirms the existence of Aboriginal and treaty rights.

Thus provincial laws could in some cases prevail over Indigenous ones provided the province passes something called the Sparrow Test, Metallic explained.

The Sparrow Test was invented by the high court in 1990 in a landmark decision that affirmed the existence of an Aboriginal right to fish. That ruling, however, came with a caveat. The judges also said governments can violate Aboriginal rights as long as they meet certain legal criteria.

“It’s an extremely high threshold and very difficult to meet,” Metallic explained. “It doesn’t mean, as some people have interpreted, that provincial law will automatically prevail.”

And it’s this element of the Quebec court’s ruling, which acknowledges Aboriginal rights extend to self-government, that Hajdu hailed as historic. She said she hopes the provinces come to accept that assessment and don’t decide to back Quebec.

“I’m hoping that provinces and territories will realize it’s not just in the best interest of Indigenous children and families, but indeed all of the citizens of their provinces,” she said.

Metallic, however, said she does expect more parties to intervene now that the stakes are higher.

“We’re on this crash course to have that issue finally resolved,” she said. “We’re going with a very strong judgement on a very crucial issue to Indigenous people — the right to control and make decisions with respect to our children — so there couldn’t be a more important case to bring this issue before the court.”

Watch these interviews above, along with highlights from AFN National Chief RoseAnne Archibald’s testimony before the House of Commons finance committee.

Archibald told MPs she was concerned the tools used to clamp down on convoy protesters may one day be turned on First Nations — one of them being Ottawa’s squeeze on crowdfunding.

“I want to be clear,” Archibald testified, “First Nations are not terrorists, nor should they be branded as such when they are involved in civil actions that protect and uphold their constitutionally protected treaty and inherent rights.”

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