This Cannot be How the Constitution Works. Or Can It?
This week, we’ve explored the potential of An Act respecting First Nations, Inuit and Metis children, youth and families (the Act). The potential to meet the fourth Call to Action; the potential to end the perpetuation of cultural genocide via the child welfare system; and the potential to broadly recognize and reinvigorate Indigenous law. The Act is an innovative response to the desperate need for reform in child welfare and, if properly funded and supported, a watershed moment in reconciliation.
And yet – just before the Act came into force, Quebec’s provincial government launched a reference case at its Court of Appeal challenging the Act’s constitutionality.
Quebec advanced two concerns. The first claims that the Act is invalid because s. 91(24) of the Constitution Act, 1867, which establishes the federal government’s authority over “Indians and Lands reserved for Indians,” does not allow the federal government to impose standards on provincial programs such as child intervention services. The second concern claims that the Act amounts to a unilateral constitutional amendment to s. 35 of the Constitution Act, 1982 by recognizing the inherent right of Indigenous communities to self-governance. 
The irony abounds.
Jurisdictional “hot-potato” has been the hallmark of Indigenous child welfare for decades.  Neither provincial nor federal governments have embraced the responsibility for these essential services. As we’ve seen, the Caring Society has been fighting for years to ensure that Indigenous children get the services they need when they need them, and in an equitable fashion.
Now, Quebec is jealously guarding its control over child welfare programs, claiming that “since governments took a role in this work, it has been the provinces who have legislated, organized and been the principal funders of child and family services in Canada.”  The province recognizes that s. 91(24) gives the federal government jurisdiction to oversee service delivery to Indigenous peoples. Quebec describes their child intervention system as holistic in that it engages, among others, social, health, education and police services. As such, they claim the Act impacts a wide range of provincial programs and the provincial employees who deliver them.
Quebec summarizes its fundamental problem with the Act in a brutally colonial fashion, suggesting that “the law violates one of the fundamental pieces of Canadian constitutional architecture – the complimentary, and not subordinate, nature of the orders of government” (ie - provincial and federal). Thereby, yet again, ignoring, the existence, persistence, and legitimacy of Indigenous governance.
The Canadian jurisprudence on Indigenous self-governance does not offer clarity on the scope of the right of self-governance, but it does acknowledge that the right exists.  Additionally, the courts have expressed a preference for negotiated agreements on jurisdiction between federal, provincial and Indigenous governments. Litigation is costly and lengthy and does not provide a comprehensive resolution to the issue of jurisdiction. As such, the federal government has adopted the following position:
“The Government of Canada recognizes the inherent right of self-government as an existing Aboriginal right under section 35 of the Constitution Act, 1982. It recognizes, as well, that the inherent right may find expression in treaties, and in the context of the Crown's relationship with treaty First Nations. Recognition of the inherent right is based on the view that the Aboriginal peoples of Canada have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and their resources.” 
Quebec paints this recognition as the federal government doing via policy and legislation what it was unable to do by constitutional amendment in the failed Charlottetown Accords. They seem to be particularly concerned that the right isn’t linked to a defined territory or an identified Indigenous governing body.
In its intervener factum, the Caring Society describes the Act’s approach to Aboriginal rights as one that “attempts to turn the page on Canada’s history of infringement and instead use federal jurisdiction as a mechanism for recognition.” Meanwhile, Quebec is attempting to use provincial jurisdiction to prevent the expression of the Indigenous right to self-governance - at a moment when the country is finally reckoning with the destructive impact colonialism has had on generations of children, families, and communities.
In the words of the Caring Society, “this cannot be how Canada’s constitution operates.”  But the fact that a province has even tried to use its constitutional powers to preempt meaningful recognition of Indigenous powers speaks volumes about where Canada is at on the road to reconciliation.
Until next time,
 Reference re: The Act Respecting First Nations, Inuit and Metis Children, Youth and Families (heard September 14-16 2021), Montreal Docket 1288-2019 (Qc CA) (Factum of the Attorney General of Quebec at paras 8 and 9) [FAGQ].
 Christiane Guay, Naiomi Metallic & Hadley Friedland, “Quebec’s Misguided Challenge to Federal Indigenous Child Welfare Law: (23 January 2020), online (blog): Dalhousie Law Journal <https://blogs.dal.ca/dlj/2020/01/23/quebecs-misguided-challenge-to-federal-indigenous-child-welfare-law/>.
 FAGQ, supra note 1 at para 10 (translated).
 Ibid at paras 34, 59, 74 and 80.
 Ibid at para 66 (translated).
 See eg. R v Pamajewon,  2 SCR 821, 138 DLR (4th) 204; Delgamuukw v British Columbia,  3 S.C.R. 1010, 153 DLR (4th) 193; Campbell et al v British Columbia (Attorney General), 2000 BCSC 1123.
 See eg. R v Marshall,  3 S.C.R. 456, 177 DLR (4th) 513
 Government of Canada, “The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government” (15 Aug 2010), online: Department of Crown Indigenous Relations and Northern Affairs Canada <https://www.rcaanc-cirnac.gc.ca/eng/1100100031843/1539869205136#inhrsg>.
 FAGQ, supra note 1 at para 88.
 Reference re: The Act Respecting First Nations, Inuit and Metis Children, Youth and Families (heard September 14-16 2021), Montreal Docket 1288-2019 (Qc CA) (Factum of the Intervener, First Nations Child and Family Caring Society of Canada at para 49).
 Ibid at para 52.