The Recent SCC Decision as a Critical Step in Recognizing the Inherent Jurisdiction of SIIA’s Member Nations
In a historic move, the Supreme Court of Canada (SCC) recently delivered a monumental decision affirming the constitutional validity of Bill C-92, An Act respecting First Nations, Inuit and Metis children, youth and families (“the Federal Act”). This decision has important implications for Indigenous communities, including for SIIA’s Member Nations, empowering them to exercise legislative authority over child and family services in a manner that aligns with their cultural values and Indigenous laws.
On February 9, 2024, the SCC upheld the constitutionality of the Federal Act, recognizing the right of Indigenous self-governance in the area of child and family services. The Federal Act imposes standards applicable to provinces and Indigenous Governing Bodies (IGBs) and provides a mechanism for Indigenous laws to have the force of federal law, superseding conflicting provincial legislation.
Our joint SIIA-CIRCLE Gathering on Indigenous Jurisdiction over Child Welfare
The SCC decision is particularly significant for SIIA, as it affirms that the legislation we are creating will take precedence over provincial laws, such as the Child, Family and Community Services Act (CFCSA). Sections of the CFCSA, such as section 4.4(1), which limits the application of Indigenous laws on provincial social workers, may be challenged in light of this decision.
The assertion that Indigenous laws have the force of federal law affirms the power of IGBs to establish dispute resolution mechanisms and bypass the provincial court system. In line with this, SIIA’s draft legislation includes a dispute resolution body, demonstrating a proactive approach to addressing conflicts and ensuring effective self-governance.
The SCC decision is also significant for the SIIA Member Nations because it sets a precedent for the judicial recognition of Indigenous jurisdiction in areas beyond child and family services. Additionally, the decision emphasizes the role of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in guiding federal actions and articulates broad principles that give rise to Crown obligations with respect to upholding Indigenous rights.
While celebrating this landmark decision, SIIA acknowledges that the Federal Act still represents a colonial recognition of narrow Indigenous jurisdiction rather than an exercise of the inherent rights of the Member Nations over their lands and peoples. However, it is also important to highlight that the Federal Act was crafted with extensive input from Indigenous communities, showcasing a collaborative effort to create legislation that truly reflects the diverse voices and legal traditions of Indigenous nations across Canada.
While recognizing the decision’s limitations in fully acknowledging inherent Indigenous jurisdiction, it is exciting to note the broader trend within the judiciary to recognize and grapple with Indigenous laws. Ultimately, this decision marks a significant step toward the recognition of Indigenous rights within the Canadian legal landscape, offering hope for continued progress and collaboration in the pursuit of Indigenous self-determination.
