On February 9, 2024, the SCC released its decision in Attorney General of Québec, et al. v. Attorney General of Canada, et al., an appeal of a Quebec reference case relating to the constitutionality of An Act respecting First Nation, Inuit and Metis children, youth and families (the “Federal Act“).
Katherine Hensel and Kristie Tsang of Fogler, Rubinoff LLP acted for the intervener, Inuvialuit Regional Corporation (IRC), offering an Inuit and territorial perspective to the legal issues before the SCC. The Court upheld the Federal Act in its entirety as constitutional, including the Federal Act’s:
- imposition of national standards in the delivery of child and family services;
- acknowledgement and affirmation of Indigenous Governing Bodies’ inherent right to self-government and legislative authority over children and family service;
- designation of Indigenous laws as having the force of federal law; and
- declaration of the paramountcy of the Indigenous laws over provincial laws, in the case of inconsistency.
This is a successful result for IRC’s child wellbeing law, Inuvialuit Qitunrariit Inuuniarnikkun Maligaksat, which will ensure that Inuvialuit children, youth, and families are supported wherever they live, for the benefit of Inuvialuit and Inuvialuit culture, and to mitigate and prevent the documented harm caused by non-Inuvialuit and non-Indigenous child welfare practices. This is also welcome news for our Indigenous clients currently engaged in developing their own child wellbeing laws or participating in coordination agreement discussions.
While the SCC refrained from commenting directly on the existence, scope, and extent of a s. 35 Aboriginal right to self-government, it confirmed that it remains open to Parliament to do so and act in accordance with that position. Stay tuned for an article on what this means going forward for Indigenous governing bodies and the child and family services sector.
