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Indigenous child welfare law largely upheld after Quebec court challenge

BY Ben Powless Apr 25, 2022

First Nations leaders are applauding a Quebec Court of Appeal decision that maintained key parts of a federal law on First Nations child welfare in effect since January 1, 2020, against a challenge by the Quebec government. The law, An Act respecting First Nations, Inuit, and Métis children, youth and families, recognizes First Nations’ authority over child and family services. 

The Quebec government argued that the federal legislation was unconstitutional because it undermined provincial jurisdiction. The February 10 Quebec Court of Appeal ruling upheld much of the law but did invalidate elements it said infringed provincial rights. 

According to the Assembly of First Nations (AFN), the ruling “affirmed that First Nations have an inherent right to self-government, including jurisdiction over child protection and family law.” 

“The Government of Quebec’s decision to challenge the Court’s ruling is deeply disappointing,” AFN National Chief RoseAnne Archibald said in the statement. “Advancing First Nations priorities requires recognizing First Nations law-making powers affirmed by section 35 of the Constitution Act. Walking the healing path forward means respecting First Nations inherent rights regardless of where rights holders reside.”

“The process towards the application of our right to self-determination is already well underway,” said Quebec and Labrador AFN Chief Ghislain Picard. “We are in the best position to ensure the wellness of our people and more particularly, our children. The province of Quebec will have to understand that this political desire will not go away, and that any interference will be strongly denounced.”

The AFN intervened in the court case on the side of the federal government, arguing that the law was needed to uphold First Nations’ rights to oversee their own child welfare laws and policies. 

The court said that Quebec’s argument that their authority over public services would be impaired by the law did not hold up, and that the law was in fact compatible with Quebec’s own child welfare legislation. 

The court also denounced the “deplorable overrepresentation of Aboriginal children in youth protection.” It included a reference to the 2019 Viens Commission in Quebec which found systemic discrimination against Indigenous Peoples and said that Indigenous children placed with non-Indigenous families is “unsuitable.” 

Isabelle Boily, a spokesperson for Quebec’s Attorney General, said the case will be appealed to the Supreme Court. “The Attorney General of Quebec will indeed be present to defend Quebec’s jurisdictions, as has always been the case in this case. The Government of Quebec remains of the opinion that federal law exceeds the jurisdiction of the Parliament of Canada under the Canadian Constitution.”

Boily added, “The Government of Quebec agrees with the objective of promoting the exercise by Aboriginal people of greater autonomy in the area of ​​youth protection. However, it must not be imposed unilaterally by the federal government, without the contribution of Quebec, as was done with Bill C-92.”

by Ben Powless, Local Journalism Initiative Reporter

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Ben Powless is a Kanien'kehá:ka and Anishnabek writer and photographer, currently living in Ottawa. He has a degree in Human Rights, Indigenous and Environmental Studies from Carleton University.