Supreme Court of Canada Upholds Constitutional Validity of Bill C-92
Today the Supreme Court of Canada (the “SCC”) in a unanimous decision, upheld the constitutional validity of federal law called An act respecting First Nations, Inuit, Metis children, youth and families (“Bill C-92” or the “Act”). Quebec’s challenge of Bill C-92 was dismissed. The SCC upheld Canada’s law in its entirety. Peguis Child and Family Services (“Peguis CFS” or the “Agency”) intervened in support of the Act.
Bill C-92 came into force on January 1, 2020. Through sections 8(a) and 18(1) the Act acknowledges First Nations inherent right to self-government over child and family services. Bill C-92 operates on the premise that the inherent right to self-government exists, the Act is not the source of that right. The affirmation of First Nations jurisdiction over child and family services is an important step on the path to reconciliation.
Peguis First Nation, Peguis CFS, Canada and Manitoba concluded a Coordination Agreement and companion Fiscal Agreement on January 31, 2023 in accordance with section 20(1) of the Act for the implementation of Peguis law, Honouring our Children, Families and Nation Act that has been in force as federal law since January 21, 2022.
The SCC decision confirms and affirms the process undertaken to create and implement The Honouring our Children, Families and Nation Act. Quebec attempted to challenge the whole of the Act – but at the Quebec Court of Appeal it determined that the Act was constitutional except for sections 21 (provides for Indigenous laws the force of federal law) and 22(3) (which allows for Indigenous laws to prevail over provincial law). The SCC confirmed that these two provisions are constitutionally valid along with the rest of the Act.
The Agency has been making positive strides in the implementation of The Honouring our Children, Families and Nation Act since coming into force. The SCC further confirms that the implementation process undertaken has been a valid exercise of inherent rights. Of importance to note is that the SCC commented on the honour of Crown in relation to negotiating coordination agreements – and that the honour of the Crown is always at play in such negotiations. We can take from this that the honour of the Crown would require predictable, stable, sustainable, needs-based and consistent funding with the principle of substantive equality in order to secure long-term positive outcomes for Indigenous children, families and communities. First Nations across Canada will benefit from this and the Agency’s implementation of our law.
The ongoing implementation of The Honouring our Children, Families and Nation Act is secure as a result of this decision.
For further information on the Peguis law, Honouring our Children, Families and Nation Act, please watch our video “Our Journey to Implementation” on our website at peguiscfs.ca.
