The Grand Council of the Crees (Eeyou Istchee) / Cree Nation Government Welcomes the Judgement of the Supreme Court of Canada on Bill C-92

Nemaska, Eeyou Istchee (February 9, 2024) – Today the Supreme Court of Canada released a landmark, unanimous judgement upholding the constitutional validity of the Act respecting First Nations, Inuit and Métis children, youth and families (Bill C-92). Key points from the Court’s summary:

• The Act as a whole is constitutionally valid. The essential matter addressed by the Act involves protecting the well-being of Indigenous children, youth and families by promoting the delivery of culturally appropriate child and family services and, in so doing, advancing the process of reconciliation with Indigenous peoples. The Act falls squarely within Parliament’s legislative jurisdiction over “Indians, and Lands reserved for the Indians” under s. 91(24) of the Constitution Act, 1867.
• The Act represents an attempt by Parliament to implement aspects of the United Nations Declaration on the Rights of Indigenous Peoples and respond to certain Calls to Action of the Truth and Reconciliation Commission.
• The Court upholds the validity of Parliament’s affirmation in the Act that the inherent Indigenous right of self‑government under s. 35 of the Constitution Act, 1982 includes legislative authority in relation to Indigenous child and family services.
• The Act mandates national standards applicable across Canada regarding Indigenous child and family services binding on federal, provincial and Indigenous providers.
• Parliament may validly give force of law to Indigenous laws regarding child and family services, as it has done in the Act.

• Parliament may validly affirm that such Indigenous laws will prevail over other laws, including provincial laws, in the event of a conflict, although the final determination is for the courts to make.
• The Act may reasonably be expected to protect the well-being of Indigenous children, youth and families by ensuring that they will receive services that are more appropriate to their cultural realities, and so reduce the overrepresentation of Indigenous children in child and family services settings.

This judgement of the Supreme Court marks another important advance in the recognition of the inherent right of self-government of Indigenous Peoples in Canada. In this regard, the Court specifically recognizes the importance of international and domestic human rights instruments and laws in affirming the rights of Indigenous Peoples throughout Canada.

The judgement recognizes that Indigenous Peoples are best placed to ensure the welfare of our children, and to end their enormous over-representation in the non-Indigenous care system. The jurisdiction of Indigenous Peoples over our children’s welfare is fundamental to our self‑government and the recognition of our distinctiveness.

While it takes a village to raise a child, today the Indigenous villages and communities have had their right to raise that child affirmed in Canadian law. This is a landmark step toward ensuring healthier and stronger Indigenous families and communities, and it advances reconciliation with non-Indigenous people in Canada.

The judgement also validates the initiative of the Cree Nation Government and the Cree Board of Health and Social Services of James Bay to develop, in collaboration with the Government of Quebec, a distinctively Cree youth protection system adapted to our values, culture and realities and based on our special treaty rights under the James Bay and Northern Quebec Agreement.

Bill C-92 was enacted by the Parliament of Canada in 2019 and came into force on January 1, 2020. Among other things, it recognizes Indigenous jurisdiction and law-making power over “child and family services” (in Quebec, youth protection services) as part of an inherent Aboriginal right to self-government under section 35 of the Constitution Act, 1982. Bill C-92 also establishes national standards applicable to child and family services for Indigenous children.

The Government of Quebec challenged the validity of Bill C-92 as unconstitutional before the Quebec Court of Appeal. Quebec argued that (i) child and family services are a matter of exclusive provincial jurisdiction; and (ii) the federal government cannot through legislation like Bill C-92 unilaterally recognize Indigenous law-making power in this area without first obtaining the consent of the Province.

The Court of Appeal disagreed with Quebec, and held instead that the central part of Bill C-92 is constitutional, and that all Indigenous groups have an inherent right to self-government over child and family services, recognized under section 35 of the Constitution Act, 1982. This inherent and “generic” right flows from the original sovereignty and historic self-governance of Indigenous peoples and the importance of children and families to Indigenous survival and identity, not from a delegation of power by the federal or provincial government.

Quebec and Canada both appealed the judgement of the Court of Appeal to the Supreme Court of Canada

Flora Weistche, Political Attachée 

Telephone: (514) 604-3276