Reference to the Court of Appeal of Quebec in relation with the Act respecting First Nations, Inuit and Métis children, youth and families, Quebec CA 2022 QCCA 185

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In this reference, the Attorney General of Quebec challenged the constitutionality of the federal Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24, which came into force on 1 January 2020. This statute acknowledges that the Aboriginal peoples of Canada have an inherent right of self-government, which includes jurisdiction over child and family services, that is recognized and affirmed by section 35(1) of the Constitution Act, 1982. The Court of Appeal rejected Quebec's contention that this federal statute is beyond the jurisdiction of Parliament. The Act's pith and substance, the court said, is to ensure the well-being of Indigenous children, and this is clearly within Parliament's jurisdiction over "Indians" in section 91(24) of the Constitution Act, 1867. The Court also decided that the Act does not amend the Constitution by acknowledging the inherent right of self-government because that right is already an Aboriginal right within section 35(1). Moreover, at least in relation to child and family services, this right is generic. The constitutional validity of the Act was therefore upheld, with the exception of two provisions. Section 21, which provides that legislation in relation to child and family services enacted by an Indigenous governing body has "the force of law as federal law", was held to be unconstitutional because it purports to apply the doctrine of federal paramountcy to Indigenous laws enacted under the inherent right of self-government. Likewise, subsection 22(3), which also attempts to give Indigenous laws in relation child and family services absolute priority over provincial laws, is ultra vires and therefore invalid. However, for provincial laws to override Indigenous child and family services laws, the province would have to justify this under the Sparrow (1990) test because it would amount to an infringement of the Indigenous right of self-government that is protected by section 35(1). This means that, in the absence of justifiable infringement, the constitutional status of this right makes Indigenous laws paramount over provincial laws relating to child and family services. It would appear to follow from this that Indigenous laws in other areas as well could also be paramount to provincial laws. This decision is on appeal to the Supreme Court.