Quebec Court of Appeal upholds majority of federal Indigenous child welfare law

The Quebec Court of Appeals is seen Wednesday, March 27, 2019 in Montreal.THE CANADIAN PRESS/Ryan Remiorz

MONTREAL -

The Quebec Court of Appeal has upheld the majority of a federal law that gives Indigenous governments more control over child welfare.

In a 219-page unanimous decision rendered Thursday, the five-member appeals court panel said that most of Bill C-92 -- which recognizes that Indigenous Peoples have an inherent right to self-government, including over child welfare -- is constitutional.

The court said elements of the law that allow Indigenous groups to create their own child welfare legislation, subject to national standards, are also constitutional. It struck down, however, a framework giving those laws the force of federal law and allowing them to override provincial legislation.

Naiomi Metallic, a law professor at Dalhousie University who specializes in Indigenous and constitutional law, said the appeals court ruling doesn't necessarily mean provinces will be able overrule Indigenous child welfare laws.

"Provincial governments have a significant role to play if they want to argue that any part of their law should trump an Indigenous law," she said in an interview Friday. "The tenor is that Indigenous laws will be paramount in the vast majority of cases and it will be very hard for a province to argue otherwise."

Metallic, who described the decision as "remarkable" and "courageous," said she was pleased to see the way the court emphasized the history of residential schools and decades of underfunding of Indigenous child welfare.

"The Indian residential school system gradually morphed into the child welfare system, that is clearly acknowledged in the decision, and what it has done is it has fractured families, it has fractured people's identities and it's also denied Indigenous people's ability to govern in this area," she said.

"That's a really important part of the decision, too -- the recognition that Indigenous people controlling this area is really key to their well-being. You cannot separate them."

Quebec had challenged the federal law, arguing that provincial governments have jurisdiction over child welfare and that by affirming in law that Indigenous peoples have an inherent right to self-government, Ottawa was unilaterally creating a new level of government.

In a joint statement, the Assembly of First Nations Quebec-Labrador and the First Nations of Quebec and Labrador Health and Social Services Commission said they were pleased to see the court uphold the right to self-government.

"The judgment of the Court of Appeal of Quebec confirms what we have argued for a long time before many commissions and inquiries," said Ghislain Picard, chief of the assembly.

"By virtue of the right to self-government, we are in the best position to ensure the wellness of our people and more particularly, our children."

The office of Quebec's attorney general said Friday it was still studying the decision.

Indigenous Services Minister Patty Hajdu told reporters Thursday that the federal government would review the decision before responding.

This report by The Canadian Press was first published Feb. 11, 2022.