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The Supreme Court of Canada’s Opinion in Ref: Re Bill C-92 Makes Space For Indigenous Law

The Supreme Court of Canada unanimously upheld an Act Respecting First Nations, Metis and Inuit Children Youth and Families (Bill C-92). [1] 

In this case, the Court’s language and interweaving of perspectives acknowledges Indigenous law at the same level as state law. Recognizing that Indigenous knowledge is vital to Indigenous cultural continuity helps courts honour Indigenous, provincial, federal and international viewpoints in an intertwined way. This decision upholds Indigenous law, using legislative reconciliation to grow a more positive relationship moving forward. 

Legislative reconciliation involves using legislation to recognize and affirm pre-existing Indigenous legal orders.[2] Bill C-92 is an example of legislative reconciliation that uplifts Indigenous child welfare law to prevail over provincial laws.[3] 

The Court’s opinion notes that the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is incorporated into Canadian law.[4] It provides the framework for reconciliation which the Court reminds us, will take time.[5] 

Reconciliation happens at different scales. At the individual scale, reconciliation is about addressing present-day bad outcomes in the child welfare system. At scales like governance and self-determination, reconciliation is about getting out of the way, rebuilding and revaluing. Bill C-92 can advance reconciliation at both scales concurrently.

One principle of Bill C-92 discussed by the Court is cultural continuity.[6] Parts of Indigenous legal traditions are passed down through storytelling. Children’s Grandparents tell them stories to teach about accepted and unacceptable behaviour.  When provincial child welfare agencies can get out of the way, this clears space for things like storytelling practices that pass down legal norms to be rebuilt, or expanded to the benefit of Indigenous children, youth and families.

The work of rebuilding and rearticulating Indigenous laws is ongoing. At the time of writing, there are 173 cases on CanLii that apply Bill C-92 and only 5 engage with Indigenous law in their reasoning. As more Indigenous governing bodies rebuild and revalue their child welfare laws, this number will likely increase. But access to Indigenous law is an access to justice issue, so lawyers and courts also have a role to play. 

The Court’s finding that Bill C-92’s purpose is to promote the well being of Indigenous children and advance reconciliation invites lawyers and courts in Alberta to change their practices.[7] Previously, the Alberta Courts have declined to extend the bill C-92’s benefit to Indigenous children. in family law proceedings like adoption and spousal separation the benefit of Bill C-92.[8]

A legal system must have the capacity to promote the well-being of children in all contexts. If it can’t, what’s the point?

Until next time,

The ReconciliACTIONyeg Team

[1]  Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 <>.

[2] Ibid at para 7

[3] Ibid at para 9

[4] Ibid at para 4

[5] Ibid at para 90

[6] Ibid at para 19, 25, 68, 102 and 113

[7] Ibid at para 91

[8] SL v Alberta (Child, Youth and Family Enhancement Act, Director), 2021 ABPC 202

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