In February 2024, the Supreme Court of Canada decided Bill C-92, which allows Indigenous communities to exercise control over child and family services, is constitutional in its entirety.
Reconciliation is the responsibility of every Canadian. The Supreme Court of Canada (SCC) decision on Bill C-92 is significant in furthering reconciliation with Indigenous peoples.
Bill C-92: An Act respecting First Nations, Inuit and Métis children, youth, and families went through a years’ long court battle that ended in February 2024. The Quebec Court of Appeal found parts of the Bill outside of federal authority. However, the SCC held that the Bill is constitutional in its entirety.
The Need for Bill C-92
Many factors led to the creation of Bill C-92. Overrepresentation of Indigenous children in the child welfare system was one. According to the 2021 census, 53.8% of children under 14 in the foster care system were Indigenous. In contrast, Indigenous children make up only 7.7% of all children under 14 in Canada. The Truth and Reconciliation Commission compared this overrepresentation to the residential school system. By removing Indigenous children from their communities and cultures, the child welfare system continues the process of colonization and assimilation.
A Canadian Human Rights Tribunal (CHRT) decision also influenced the creation of Bill C-92. The CHRT found that the federal government discriminated against First Nations children. There was a lack of funding for child welfare agencies on reserve. While the federal government was aware of this, they did nothing to correct it. Due to low funding, families did not get the chance to stay together. Families also were unable to reunite in an appropriate time. This resulted in more First Nations children entering the child welfare system.
The TRC’s Calls to Action and UNDRIP also influenced the creation of Bill C-92.
The Bill was created by Indigenous partners and the Canadian government. One of the main purposes of the Bill is to keep Indigenous children out of the child welfare system. By doing this, Indigenous children can stay connected to their communities and cultures. To achieve this, Bill C-92 recognizes that part of the Aboriginal right to self-governance includes child welfare. Any child and family services laws that Indigenous communities create are above provincial law.
By having Indigenous communities exercise control over child and family services, the decisions made will reflect the specific needs and circumstances of the community. While Bill C-92 does have its issues, it is an important step in the reconciliation process.
Bill C-92 became law on January 1, 2020.
The Quebec Challenge
Child welfare is within the authority of the provinces. This was the foundation of the court battles around Bill C-92.
Back in 2021, Quebec challenged the Bill to their Court of Appeal. They argued the Bill was unconstitutional because the federal government overstepped its authority. If the Court found that the Bill was unconstitutional, they could strike down specific sections or the entire Bill.
In February 2022, the Quebec Court of Appeal found that Bill C-92 itself was constitutional. Parts of it were not though. The Court decided sections 21 and 22(3) were unconstitutional, as they stepped on provincial authority. Section 21 says that laws made by Indigenous communities are equal to federal law. Section 22(3) says that if there is a conflict between a provincial law and an Indigenous law, the Indigenous law prevails.
Bill C-92 and the SCC
Both Canada and Quebec appealed the Quebec Court of Appeal decision to the Supreme Court of Canada. Lawyers for Quebec argued again that Bill C-92 in its entirety was unconstitutional. They focused on the fact that the Bill stepped on a province’s exclusive authority over child and family services. The Bill affects how provinces run those agencies as well.
Another argument was that Bill C-92 changes the Constitution. Lawyers said the Bill lets the federal government change the Constitution on their own. Normally, changing the Constitution needs to include the provinces. The general procedure requires that at least seven provinces agree with the change. Those seven provinces need to have at least 50% of the total population of the provinces.
Federal government lawyers focused on Bill C-92 as a key step towards reconciliation in their arguments. They argued that “Indians, and lands reserved for the Indians,” fell into federal authority. Since the Bill deals with Indigenous families and the connection to their cultures, lawyers argued it was constitutional.
The SCC decided Bill C-92 is constitutional. Its purpose is to protect Indigenous children and families. This clearly falls into federal authority. There is no attempt to change the Constitution because the right to Aboriginal self-government is already in it. All Bill C-92 does is recognize that right in child welfare.
This decision is monumental. It confirms, after many years, that Indigenous communities have authority over child and family services. The laws Indigenous communities make are valid. Provincial laws cannot override these laws, which would contradict the purpose of Bill C-92. While there is still much to do in terms of reconciliation, this decision is a key step.
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
About Nadia Sadiq
