The Supreme Court hits a home run on reconciliation

On the division of powers, on reconciliation, and on arguments about 'constitutional architecture'

Never let it be said that I only ever criticize the Supreme Court.

Yesterday, in a landmark decision, the Court upheld federal legislation giving (that is, returning) effective control over children’s welfare to Indigenous Peoples. It did so while writing as “The Court” rather than authorship of particular judges, something that sometimes signals the importance of a decision.

The Act respecting First Nations, Inuit and Métis children, youth and families establishes national standards and principles in the context of ensuring the provision of culturally appropriate child and family services across Canada. This is a commitment, the Court recognized, that flows from the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the Truth and Reconciliation Commission, and is grounded in Parliament’s affirmation of a right to self-government under section 35 of the Constitution Act, 1982 (although the Court declined to elaborate on the precise scope of section 35 with respect to self-government vis-a-vis child welfare).

But the law was subject to a challenge by the Government of Quebec, by way of a reference to its Court of Appeal. Quebec argued that the law was an intrusion into provincial jurisdiction, and that it was an affront to the “constitutional architecture” because it stood as a unilateral amendment of the Constitution (a deeply ironic assertion given that province’s recent forays into actually and unconstitutionally asserting the power to unilaterally amend the Constitution).

The Court of Appeal partially adopted some of Quebec’s arguments by determining that while much of the law was constitutionally valid, the provisions that provide Indigenous peoples priority over provincial laws relating to child and family services were invalid because they would not be “federal laws enacted under s. 91 and subject to the doctrine of federal paramountcy, but rather Aboriginal laws that serve Aboriginal imperatives.” (see para. 35, citing para. 540 of the QCCA opinion).

Thankfully, the Supreme Court disagreed, upholding the Act in its entirety. It characterized the pith and substance of the Act as seeking to protect “the well-being of Indigenous children, youth and families by promoting the delivery of culturally appropriate child and family services and, in so doing, advances the process of reconciliation with Indigenous Peoples” (para. 41). As such, the Act “falls squarely” within the federal Parliament’s authority under section 91(24) (“Indians, and Lands reserved for the Indians”) (para. 93).

The Court, consistent with longstanding division of powers jurisprudence, recognized the overlapping spheres of authority that often result in the modern context, finding that the imposition of national standards by the federal level within its sphere authority did not obliterate provincial authority over child and family services generally. The federal government is free to impose national standards within its area of authority, and the double aspect doctrine allows for “concurrent application” of federal and provincial legislation in relation to specific policies and facts (para. 98). In fact, the Court found the federal law consistent with the need for cooperative efforts between both levels of government to advance reconciliation and ensure child welfare in the Indigenous context (para. 99). The law does not eliminate or remove the provincial role, even with respect to Indigenous children, let alone its own inherent jurisdiction. But the national standards do apply to the provinces.

The Court also rejected the claim by Quebec that the legislation illegitimately sought to establish a new Indigenous right under section 35. (Here, I appreciated the Court’s statement that “Only s. 44 provides for the possibility of unilateral amendments [to the Constitution of Canada] by Parliament” - implicitly affirming that provinces cannot unilaterally amend the national constitution; please, someone challenge Quebec’s Bill 96 and Bill 4!). And of course, it found that that’s not what the federal law does; it simply affirms - in an ordinary statute, not a purported constitutional amendment - its understanding of section 35 and the right to self-government (para. 107-110).

Finally, the Court also rejected the argument that the federal incorporation of Indigenous laws somehow constituted an alteration to the constitutional architecture. Instead, the Court pointed out that this sort of incorporation by reference is relatively common and a valid practice. Federal paramountcy applies where such valid laws come into conflict with otherwise valid provincial law.

It is difficult to overstate the importance of this decision. If the federal government had lost, it would not only have been a serious blow to an important aspect of of Indigenous self-government and rights, it would have also been a serious blow to the broader effort at reconciliation.

This is because in the absence of our ability to enact major constitutional reform, this sort of federal legislative “devolution” of authority and jurisdiction to Indigenous governments is likely the best path forward to upholding and protecting a sphere of meaningful sovereignty for Indigenous peoples. It is consistent with an approach to ‘treaty federalism’ that would finally, over time, remove the colonial imposition of federal oversight and recognize Indigenous laws over wide spheres of policy, from family law to land use to education, etc.

The Court recognized that legislative reconciliation was a valid and possibly more efficient path than the more complex, expensive, and dramatically slower options of modern treaty negotiations or constitutional litigation. But it is also an (imperfect) alternative to formal amendment to recognize Indigenous sovereignty or, perhaps eventually, an ‘Aboriginal order of government’.

The Quebec challenge, if successful, would have introduced a dramatic barrier to an efficient model for advancing reconciliation. And there was a valid reason to worry that the Court might have opted for a more “cooperative federalism” approach that prevents this sort of positive federal action (action, which followed, it is worth noting, consultation with Indigenous communities), by asserting that provinces needed to approve or also legislate in order to recognize Indigenous self-government over child welfare. Thankfully, the Court instead recognized federal authority to effectively devolve its own jurisdiction in a more direct and efficient manner.

The rejection of the ‘constitutional architecture’ arguments were also beneficial for hopefully dampening future attempts at recourse to that nebulous concept for challenging legislative acts. It is, as I have written at length, an ambiguous and largely unhelpful concept for constitutional adjudication.

In short, the Court offered a definitive, clear, coherent, and straightforward statement on the division of powers and reconciliation that should be applauded for both its logic and the ultimate outcome. A good day for the Court indeed.