2022 QCCA 185, 2022 QCCA 185

Unofficial English Translation of the Opinion of the Court Renvoi à la Cour d'appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis 2022 QCCA 185 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-028751-196 In the matter of the: Reference to the Court of Appeal of Quebec in relation with the Act respecting First Nations, Inuit and Métis children, youth and families (Order in Council No. 1288-2019) DATE: February 10, 2022 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. YVES-MARIE MORISSETTE, J.A.

MARIE-FRANCE BICH, J.A. JEAN BOUCHARD, J.A. ROBERT M. MAINVILLE, J.A. ATTORNEY GENERAL OF QUEBEC APPLICANT v. ATTORNEY GENERAL OF CANADA RESPONDENT and ASSEMBLY OF FIRST NATIONS QUEBEC-LABRADOR (AFNQL) FIRST NATIONS OF QUEBEC AND LABRADOR HEALTH AND SOCIAL SERVICES COMMISSION (FNQLHSSC) MAKIVIK CORPORATION ASSEMBLY OF FIRST NATIONS ASENIWUCHE WINEWAK NATION OF CANADA FIRST NATIONS CHILD AND FAMILY CARING SOCIETY OF CANADA INTERVENERS Table of Contents Introduction .. 4

Summary of the Opinion .. 6 (

a) Context leading to the passage of the Act 6 (

b) Content of the Act 9 (

c) Respective positions of Quebec, Canada and the interveners . 12 (

d) First part of the analysis: the constitutionality of the national standards . 13 (

e) Second part of the analysis: the right of Aboriginal self-government and the regulation of child and family services . 14

1- The context leading to the passage of the Act 19 (

a) Federal Aboriginal assimilation policies . 20 (

b) Provincial policies for the apprehension of Aboriginal children . 27 (

c) Legal proceedings related to residential schools and to the apprehension of Aboriginal children .. 29 (

d) The various commissions of inquiry and their recommendations . 32 (

e) The overrepresentation of Aboriginal children in youth protection systems and out-of-family placements . 38 (

f) Funding of Aboriginal child and family services . 42 (

g) CHRT judgments and orders on Aboriginal child and family services . 45 (

h) Jurisdictional disputes regarding child and family services and impact on Aboriginal individuals and peoples . 51 (

i) Establishment of a working group to draft proposed legislation .. 54 2- Content of the Act 57 (

a) Self-government and Aboriginal child and family services: some milestones . 57 (

b) Content of the Act 68 Overview and general principles of the Act 68 Detailed content of the Act 72 -

Preamble . 72 - Definitional and interpretative provisions . 73 - National standards . 81 - Framework for recognizing and implementing Aboriginal self-government in relation to child and family services . 85 - Other provisions . 94 (

c) Some remarks regarding the application of the Act 95 3- The respective positions of Quebec, Canada and the interveners . 101 (

a) Quebec’s position .. 101 (

b) Canada’s position .. 104 (

c) The position of each intervener 106 4- First part of the analysis: the constitutionality of the national standards . 109 (

a) Analytical framework . 109 (b) Section 91(24) of the Constitution Act, 1867 . 111 (

c) Analysis . 114 5- Second part of the analysis: the right of Aboriginal self-government and the regulation of child and family services . 120 (

a) Historical basis of the right of Aboriginal self-government 122 (

b) The state of Canadian law on the issue of Aboriginal self-government 128 (

c) Analytical framework . 150 (

d) Is the premise of the Act to the effect that the right of Aboriginal peoples to self-government is recognized and affirmed by s. 35 of the Constitution Act, 1982 and includes jurisdiction in relation to child and family services incorrect? . 155 The sovereignty of the Crown and the division of powers . 156 The right of Aboriginal self-government and the regulation of child and family services 159 Is this a generic right or a specific right? . 166 The regulation of this right 169

OPINION OF THE COURT * The UN Declaration . 171 (

e) Is the framework established by the Act for delineating the exercise of the right of Aboriginal peoples to regulate child and family services constitutionally valid? . 174 Are the limits set by the Act for the exercise of the right permitted? . 175 Can Parliament confer the force of law, as federal law, on Aboriginal legislation in relation to child and family services? . 179 Can Parliament make an Aboriginal right an absolute right in relation to provincial legislation? 182 Conclusion .. 190 APPENDIX A .. 193 APPENDIX B .. 197 Introduction [ 1 ] Aboriginal children are overrepresented in youth protection systems throughout Canada.

In addition to the suffering they must endure as a result of this situation, it has serious detrimental effects on them, their families and their communities, particularly as regards the preservation of their identity, language and culture. This reality, which was recently highlighted by a number of commissions of inquiry, is the subject of consensus and the Government of Quebec does not dispute it. [ 2 ] The Act Respecting First Nations, Inuit and Métis children, youth and families [1] (the “ Act ”) was assented to on June 21, 2019. Its provisions came into force on January 1, 2020. [ 3 ] According to its

preamble, the Act is one of the measures Parliament has taken to advance reconciliation with Aboriginal peoples. [2] Broadly speaking, it seeks to address the issue of overrepresentation of Aboriginal children in child and family services systems while recognizing that Aboriginal peoples are in the best position to identify and implement solutions to this issue. [ 4 ] The Act establishes national standards for the provision of child and family services in relation to Aboriginal children.

These standards place the best interests of Aboriginal children at the heart of decisions made in their regard and recognize the importance for these children of maintaining ongoing relationships with their families and with the communities to which they belong, while preserving their connections to their culture. The Act also emphasizes a preventive approach. [ 5 ] The Act affirms that the inherent right of Aboriginal self-government, a right recognized and affirmed by s. 35 of the Constitution Act, 1982 , [3] includes jurisdiction in relation to child and family services.

It also offers Aboriginal peoples a framework for exercising that jurisdiction, by providing for the possibility of negotiations with the federal and provincial governments and for the incorporation of Aboriginal laws into federal legislation. [ 6 ] On December 18, 2019, the Government of Quebec adopted Order in Council 1288-2019, [4] which led to the filing of a Notice of Reference to the Court of Appeal on December 20, 2019.

On February 25, 2020, the Court authorized the intervention of five Aboriginal groups. [5] [ 7 ] The question submitted to the Court in this reference is the following: [ translation ] Is the Act respecting First Nations, Inuit and Métis children, youth and families ultra vires the jurisdiction of the Parliament of Canada under the Constitution of Canada? [ 8 ] The Attorney General of Quebec contends that the question must be answered in the affirmative.

He argues that: - Sections 1 to 17 of the Act (“Part I”) are invalid because they have the effect of dictating the manner in which provinces are to provide services to Aboriginal children and families.

Section 91(24) of the Constitution Act, 1867 , [6] however, interpreted in accordance with the underlying constitutional principles, does not authorize Parliament to legislate on the manner in which provinces must provide services to children and families, whether Aboriginal or not; - Sections 8 and 18 to 26 of the Act (“Part II”) are invalid because they constitute an attempt to unilaterally amend s. 35 of the Constitution Act, 1982 , which exceeds the powers of Parliament, and because they seek to undermine the established constitutional order. [ 9 ] The Attorney General of Canada and the interveners argue, conversely, that the Act is valid both pursuant to s. 91(24) of the Constitution Act, 1867 and pursuant to s. 35 of the Constitution Act, 1982 and the Aboriginal right of self-government. [ 10 ] This opinion is divided into five chapters: (1) the context leading to the passage of the Act ; (2) analysis of the Act and the legislative context leading to its passage, and discussion of some difficulties in interpreting and applying it; (3) review of the parties’ arguments; (4) consideration of the constitutionality of the Act under s. 91(24) of the Constitution Act, 1867 ; as well as (5) under s. 35(1)

of the Constitution Act, 1982 and pursuant to the Aboriginal right of self-government.

Summary of the Opinion [ 11 ] This

summary forms an integral part of the reasons of the panel that heard the Reference. Nevertheless, in order to fully understand all of the details and nuances the Court considered necessary in formulating its opinion, the full text of the opinion should be read. By its very nature, the

summary, although accurate, cannot be exhaustive. (

a) Context leading to the passage of the Act [ 12 ] The Act marks a recent milestone in a process set in motion nearly two centuries ago. A general overview of the context in which it was enacted is helpful. For decades, assimilationist policies have detrimentally affected many generations of Aboriginals.

Due to overlapping constitutional jurisdictions and chronic underfunding by the federal government, to this day Aboriginal peoples continue their struggle to overcome the long-term effects of this situation. [ 13 ] Over the past forty years, several important commissions of inquiry have highlighted the drastic consequences Aboriginal peoples and their children have suffered. There was a growing need for Aboriginal peoples to take control of their own child and family services.

This led to the Act , which came into force on January 1, 2020. [ 14 ] Historically, certain policies of the 19th and early 20th centuries had as their goal to assimilate Aboriginal peoples by fully integrating them in Canada’s non-Aboriginal society. To that end, a number of measures (which are now considered discriminatory) were implemented. These initiated a process for devaluing Aboriginal cultural identity. With the arrival of Confederation, the federal government was given legislative authority over “Indians”. A number of laws were subsequently enacted to further that process.

As one government member explained to Parliament, “[t]he Indians must either be treated as minors or as white men”. Despite what may have seemed, at the time, to be a quid pro quo to “Indian” status—no taxes could be collected on a reserve—the legislation effected a direct attack on the cultural identity of Aboriginal peoples by banning certain long-standing cultural and spiritual practices. [ 15 ] As of 1883, the assimilationist policy gave rise to boarding schools, through which Aboriginal children were torn from their families.

Testifying in 1920 before a parliamentary committee, one deputy minister stated that the objective was to see to it “that there is not a single Indian in Canada that has not been absorbed into the body politic”. As of the 1940s, the residential school system became a functional but very crude approximation of provincial youth protection services. There, Aboriginal children were provided with mediocre education under conditions of great deprivation, in which the use of Aboriginal languages was repressed.

Due to the spread of illnesses such as tuberculosis, the mortality rate of the children in the system was abnormally high. Moreover, they were subjected to what would come to be described as unspeakable cruelty. [ 16 ] In 1951, Parliament amended the Indian Act so that laws of general application in a province, including laws of a social nature, became applicable to Aboriginal persons residing in the province. The scope of this amendment is the subject of controversy. [ 17 ] Over 150,000 Aboriginal children attended residential schools until the 1990s.

Thousands of them suffered physical, psychological and sexual abuse. The gradual end of the residential school system, however, did not spell the end of the forced separation of Aboriginal children from their families. The residential schools were followed by a system in which Aboriginal children were placed in non-Aboriginal foster families, in what would come to be known at the “Sixties Scoop”.

The mass adoption of Aboriginal children caused them to experience major identity and behavioural problems. [ 18 ] In 2006, the Indian Residential Schools Settlement Agreement (“ IRS Settlement Agreement ”) provided for a comprehensive settlement of numerous individual and class actions related to the residential school system.

Other framework settlements were entered into in Brown [7] and Riddle [8] in 2018. [ 19 ] Between 1991 and 2019, four separate commissions of inquiry addressed, from a number of different perspectives, the legacy of the treatment of Aboriginal peoples: the Royal Commission on Aboriginal Peoples , the Truth and Reconciliation Commission of Canada (“ Truth and Reconciliation Commission ”), the Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec: listening, reconciliation and progress (“ Viens Commission ”) and the National Inquiry into Missing and Murdered Indigenous Women and Girls .

The Royal Commission on Aboriginal Peoples , which submitted its report in 1996, indicated that the central theme of its recommendations was the idea that Aboriginal peoples must have room to exercise their autonomy and structure their own solutions. In its 2015 report, the Truth and Reconciliation Commission set out a series of measures for reducing the overrepresentation of Aboriginal children within child welfare systems.

The Viens Commission concluded, in 2019, that there is systemic discrimination against First Nations and that a youth protection system which places Aboriginal children with non-Aboriginal foster families is unsuitable.

That same year, the National Inquiry into Missing and Murdered Indigenous Women and Girls made several recommendations also aimed at placing the design and implementation of culturally appropriate child and family services in the hands of Aboriginal peoples as part of the exercise of their right to self-determination. [ 20 ] There is a consensus that the deplorable overrepresentation of Aboriginal children in youth protection systems is still very much present.

The aforementioned three most recent commissions of inquiry denounced this reality, as did the Special Commission on the Rights of the Child and Youth Protection (“ Laurent Commission ”) in 2021. This situation has numerous interrelated causes, including chronic underfunding. [ 21 ] Funding arrangements for Aboriginal child services vary markedly from one community to another, but the federal government is the principal source of funding, either directly through First Nations Child and Family Services (“FNCFS”) [9] agencies or indirectly through the services provided by the provinces.

The picture of the funding arrangements that emerges from the Court record in this reference is vague in a number of respects. That said, recent decisions of the Canadian Human Rights Tribunal (“CHRT”) have clearly highlighted the discriminatory and deficient nature of existing practices.

[ 22 ] In 2007, the First Nations Child and Family Caring Society and the Assembly of First Nations filed a complaint in that regard with the Canadian Human Rights Commission. This complaint was the basis for the 2016 ruling in First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada) , [10] in which the CHRT found in favour of the complainants, concluding that the Department of Aboriginal Affairs and Northern Development Canada discriminates in providing services to First Nations members.

The CHRT was of the view that there is a public relationship between that Department and First Nations children and families. The evidence that had been filed in the record showed the existence of serious deficiencies in the funding and structure of the FNCFS Program, whose budget does not account for the actual needs of FNCFS agencies in light of geographical and social differences. The CHRT was of the view that the resulting adverse impacts suffered by Aboriginal children and families were due solely to their race or national or ethnic origin.

The federal government accepted the decision and committed to make the necessary reforms. Several CHRT orders, particularly on the issue of compensation to victims of these discriminatory practices, have since buttressed the 2016 decision. [ 23 ] Jurisdictional disputes between the federal and provincial governments have also complicated, and even prevented, the provision of adequate services to Aboriginal peoples. To address this situation, Jordan’s Principle, which applies a child-first principle to Aboriginal children, was developed.

Having been reinforced by CHRT decisions, Jordan’s Principle is now unanimously accepted. [11] [ 24 ] Two years after the 2016 CHRT ruling, the Minister of Indigenous Services brought together provincial, territorial and Aboriginal representatives to begin an urgent reform process. Following these discussions, the federal government made a number of firm commitments. Some 2,000 organizations were consulted and a “reference group” was established to co-develop proposed legislation, leading to the tabling of Bill C-92 on February 28, 2019.

The Act received Royal Assent on June 21, 2019 and came into force on January 1, 2020. (

b) Content of the Act [ 25 ] The Act is based on two main concepts: the establishment of national standards, and recognition of the inherent right of Aboriginal self-government. The latter concept developed slowly, beginning in 1973 with the federal government’s Comprehensive Land Claims Policy , [12] followed by the coming into force of the Constitution Act, 1982 and the adoption, in 1995, of the Self-Government Policy [13] for Aboriginal peoples. That policy recognized the existence of the right and favoured tripartite negotiations (federal and provincial governments, Aboriginal peoples).

A convergence thereafter occurred between the Comprehensive Land Claims Policy and the Self-Government Policy . Between 1997 and 2017, this led to a number of agreements which, implicitly or explicitly, touched on the right to Aboriginal self-government. In addition, some federal statutes enacted during the same period occasionally referred to that right.

In short, the concept of administrative and political autonomy for Aboriginal peoples has been percolating for over 45 years. [ 26 ] In 2018, the Department of Justice published the Principles Respecting the Government of Canada’s Relationship with Indigenous peoples . [14] The inherent right of Aboriginal self-government featured prominently in these principles. The Act is clearly in line with these 2018 Principles , through which we see the emergence of true Aboriginal governance. [ 27 ] Before delving into the Act in detail, a general overview of its content is in order.

The Act is comprehensive; it recognizes the right of self-government and no longer sets bipartite or tripartite agreements as a prerequisite for such purpose. Favouring a bottom-up approach, the Act provides Aboriginal peoples with the flexibility and functional independence to choose their own solutions. In responding to the pressing need for reconciliation, the Act is designed to address the excessive delays of the piecemeal agreement negotiating process. This legislative initiative was evidently guided by the United Nations Declaration on the Rights of Indigenous Peoples [15] (the “UN Declaration ”).

By setting out general national standards, the Act establishes a framework to ensure that Aboriginal children are provided with a minimum level of services, based on an evident concern for equality across Canada as well as respect for the differences between various groups. [ 28 ] The lengthy

preamble to the Act echoes the recommendations of the commissions of inquiry made in 1996 and 2015. The

preamble is followed by substantial definitional and interpretative provisions. These set out key concepts, such as “ Indigenous governing body”, “family” and “ Indigenous peoples”. The definition of “ Indigenous governing body” leaves it to Aboriginal peoples themselves to decide which entities will be responsible for applying the Act .

In addition to preventing certain legislative conflicts, the interpretative provisions specify the principal purposes of the Act and establish a cardinal rule: The Act must be read and applied in accordance with the best interests of the child and in a manner consistent with cultural continuity and substantive equality. Parliament’s intent is clearly to break with the past. [ 29 ]

Part I of the Act sets out the national standards alluded to above . It does so under three headings: the best interests of the Aboriginal child, the provision of child and family services, and the placement of the Aboriginal child. [ 30 ] As regards the best interests of the Aboriginal child, which the Act identifies as the paramount consideration, it sets out a series of assessment factors. Among many other factors, these include the Aboriginal child’s upbringing, the child’s relationship with his or her family members, preservation of the child’s cultural identity, and the child’s own preferences.

To the extent possible, these factors are to be construed in a manner consistent with applicable Aboriginal laws. Respecting the Aboriginal child’s culture and needs takes on particular significance when the child is placed outside his or her home community. It is important that the child’s parents, care provider and home community have a strong say in any decision involving the child.

The Act prioritizes preventive care, favours having a child continue to reside with a family member and specifies that the child’s socio-economic condition alone cannot justify the child’s apprehension. [ 31 ] Thus, placement of a child should be used only as a last resort. Placement with non-Aboriginal adults can occur only after every effort has been made to place the child (in the following order of priority) with one of the child’s parents, with a member of the child’s family, with a member of the child’s own community, or with a member of an Aboriginal group other than the one to which the child belongs.

In all cases, the child’s situation must be reassessed on an ongoing basis. Lastly, in providing services, the child’s emotional ties to each member of his or her family must be promoted. [ 32 ] The balance of the Act sets out the structure of the new scheme .

Section 18 is a declaratory provision that affirms the existence of

the right to Aboriginal self-government. It states, in particular, that the right includes legislative authority in relation to child and family services, which must be exercised in accordance with the Canadian Charter of Rights and Freedoms [16] (the “ Canadian Charter ”). In ss. 20(1) and (2), the Act establishes a procedure pursuant to which an Aboriginal governing body can choose between two courses of action. It can inform the governments concerned that it intends to exercise its authority. Alternatively, it can request that these governments enter into a coordination agreement for this purpose.

Only the second course of action gives rise to the application of ss. 21 and 22 of the Act . Pursuant to those sections, provided certain conditions are met, Aboriginal laws pertaining to child and family services have the same force of law as federal laws and prevail over any conflicting or inconsistent provision of a federal or provincial law respecting child and family services. The same does not extend to Aboriginal laws adopted without requesting a coordination agreement, such that ss. 21 and 22 do not apply to them.

From the foregoing, it appears that Parliament wishes to encourage the course of action based on negotiation. [ 33 ] Regardless of the course of action chosen by an Aboriginal people, any law adopted by that people that is contrary to the best interests of the child will be inapplicable. Lastly, one of the Act ’s provisions deals with resolving conflicts between two Aboriginal laws.

The Act also contains a few additional provisions, which are less relevant for purposes of this reference. [ 34 ] Aside from the constitutional debate arising from this reference, the Act itself contains ambiguities that raise a variety of questions, as a number of Aboriginal participants pointed out during parliamentary committee proceedings. Thus, disputes could conceivably arise as to which entities will qualify as an “ Indigenous governing body”.

Other potential sources of difficulty relate to the tangible capacity of Aboriginal peoples themselves to provide the services contemplated in the Act , or they relate to the manner in which the dispute resolution mechanisms will operate. The issue of funding for child and family services remains critical and largely unresolved, despite the reference to “fiscal arrangements” in the list of matters that may be covered by coordination agreements entered into under s. 20(2). Several public statements by Aboriginal spokespersons have been a stark reminder of this. These aspects of the Act could lead to litigation.

That said, there is no need to say more here given the specific question raised in this reference. (

c) Respective positions of Quebec, Canada and the interveners [ 35 ] The attorneys general presented a two-pronged argument: one based on s. 91(24) of the Constitution Act, 1867 and the other on s. 35 of the Constitution Act, 1982 . The Attorney General of Quebec argues that the Act intrudes in a provincial area of jurisdiction and unilaterally modifies the scope of s. 35 . He therefore asks the Court to answer the reference question in the affirmative.

The Attorney General of Canada, who contests the foregoing, is of the view that the reference calls for a negative answer, but one limited in scope. [ 36 ] The Attorney General of Quebec relies first on the general jurisdiction that the province, as a rule, holds over child welfare. The Act dictates how such services are to be provided to Aboriginal persons, which, he argues, exceeds the federal powers under s. 91(24) and jeopardizes the architecture of the Constitution. In his view, the Act also impairs the province’s authority over its public service.

Moreover, by affirming the existence of the inherent right of Aboriginal self-government,

Part II of the Act usurps the role of the courts and unilaterally creates a third level of government in Canada. This can only be achieved through a constitutional amendment or by means of treaties protected by s. 35 . It therefore follows that

Part I of the Act is invalid under the first prong of the argument, and

Part II is invalid under the second prong of the argument. These conclusions are sufficient and the Court need not opine on the scope of s. 35 . [ 37 ] After reviewing the services offered by the federal government, the Attorney General of Canada identifies the pith and substance of the Act , which is to protect Aboriginal children and families by reducing the number of Aboriginal children in existing child welfare systems.

He is of the view that this matter undoubtedly falls within the broad powers of s. 91(24) and that the federal government’s exercise of those powers in the present case does not interfere in any manner whatsoever with provincial powers. Moreover, as for the provisions relating to the right of Aboriginal self-government, nothing in the Act would preclude a court challenge to the validity of Aboriginal laws. Nonetheless, the

interpretation of s. 35 conveyed in the Act is consistent with the case law. [ 38 ] The Assembly of First Nations is of the view that the pith and substance of the Act is to remedy the consequences of the federal government’s colonial policies. The

interpretation the Act offers as to the inherent right of Aboriginal self-government is consistent with legal developments, with what the honour of the Crown requires and with relevant international standards. [ 39 ] The Assembly of First Nations Quebec-Labrador and the First Nations of Quebec and Labrador Health and Social Services Commission are of the view that the Act ’s pith and substance, in addition to what the Attorney General of Canada states, is to sustain the continuity of Aboriginal culture and facilitate the exercise of the inherent right of Aboriginal self-government.

Provincial laws apply to Aboriginal child and family services only by virtue of s. 88 of the Indian Act . The Act is the current expression of the federal government’s responsibilities under s. 91(24).

In this reference, the Court is called upon to rule on the inherent right of Aboriginal self- government. [ 40 ] Makivik Corporation, which did not participate in the oral arguments, notes in its memorandum that, since a 1939 reference to the Supreme Court, the federal government has always had responsibility for providing services to Nunavik Inuit. [ 41 ] The intervener Aseniwuche Winewak Nation of Canada takes a position only on

Part I of the Act and argues that it can improve the situation of Aboriginal children who are non-status Indians or who are not members of a First Nation. (

d) First part of the analysis: the constitutionality of the national standards [ 42 ] Sections 91 and 92 of the Constitution Act, 1867 allocate legislative authority among the federal and provincial governments. An issue regarding the constitutionality of a statute, based on the division of powers, must be decided in a two-step process. The first step is to identify the purpose and the pith and substance of the statute. This characterization stage is followed by a classification process: to which head or heads of power listed in those sections can the statute be connected?

When a statute has two or more aspects, some of which appear to be connected to s. 91 and others which appear to be connected to s. 92 , the court must take into account the context in which the statute was enacted as well as its practical and legal effects. In addition to identifying the dominant aspect of a statute, the double aspect doctrine can be applied to validate similar provisions in concurrent and valid federal and provincial legislation. The

doctrine of interjurisdictional immunity protects the unassailable content of a power of one level of government against impairment by a statute enacted by the other level of government. [ 43 ] Section 91(24) encompasses all Aboriginal peoples in Canada, including the Métis and the Inuit. It is a broad power conferring legislative authority over all aspects of “Indianness”. The essence of this federal head of power also includes the well-being of Aboriginal persons as well as their inter-personal relationships, such as family relationships, adoptions or testamentary matters.

This plenary power implies that the federal government will occasionally encroach on matters falling under s. 92 , but that does not mean it can thereby invade areas of provincial jurisdiction: the two-step analysis is still required and, where possible, courts will favour the ordinary operation of statutes enacted by both levels of government. [ 44 ] In the present case, the Attorney General of Quebec argues that, by virtue of its pith and substance, the Act dictates how provinces must provide child and family services in an Aboriginal context.

In the Court’s opinion, a full analysis of the Act , of the context in which it was adopted and of its effects reveals something entirely different. The pith and substance of the Act is to ensure the well-being of Aboriginal children, by fostering culturally appropriate services to reduce their overrepresentation in provincial child welfare systems. This is established by the extensive extrinsic evidence filed in the record. [ 45 ] The Attorney General of Quebec’s argument that the effects of the Act severely impair the province’s authority over its public service does not withstand analysis.

The national standards are stated in the Act in general terms and not as operational requirements imposed on provincial public servants for the provision of child and family services. These standards are compatible with Quebec’s child welfare legislation.

The possible effects of the Act on the work of provincial public servants are incidental and do not change its pith and substance. [ 46 ] Lastly, the Court also rejects the propositions that the Act offends the principles of federalism and democracy which underlie the Constitution and that, based on the doctrine of interjurisdictional immunity, the Act is inapplicable to provincial public servants. Such principles cannot prevail over legislative provisions validly enacted under s. 91(24) .

As for the doctrine of interjurisdictional immunity, which is of limited application, it presupposes impairment of the core of a legislative power, which the Attorney General of Quebec has not shown in the present case. (

e) Second part of the analysis: the right of Aboriginal self-government and the regulation of child and family services [ 47 ] The Attorney General of Quebec argues that Aboriginal governance can result only from delegations of legislative powers, agreements between governments and Aboriginal peoples, or a constitutional amendment. He is of the view that s. 35 of the Constitution Act, 1982 does not recognize a right to Aboriginal self-government. If, however, the Court were to conclude otherwise, only the judiciary —and not Parliament—could decide the matter.

By adopting the Act , Parliament is adding to s. 35 and, in so doing, is usurping the role of the courts. [ 48 ] The reference, therefore, pertains to the scope of s. 35 and raises the question as to whether a right to Aboriginal self-government in relation to child and family services, if it does exist, is “generic” or, instead, specific to each of the Aboriginal peoples and can vary from one people to another. [ 49 ] Based on the approach adopted in one line of cases, the sovereignty exercised by the Crown [17] in Canada is constitutionally incompatible with such an Aboriginal right, as is the division of legislative powers between the federal and provincial governments.

Under this approach, while Aboriginal governance may be politically desirable, it must result from a legislative choice. The opposing approach posits that Aboriginal peoples have always maintained a form of self-government that flows from their original sovereignty over the territory. This Aboriginal right is now enshrined in s. 35 . [ 50 ] For the reasons that follow, and subject to the important nuances set out in the full reasons, the second approach ought now to be adopted.

This conclusion, which flows from the history of the relationship between the Crown and Aboriginal peoples, is also grounded in the jurisprudence interpreted in light of history. [ 51 ] It is now common ground that the de facto , indeed de jure , autonomy of Aboriginal peoples was recognized until sometime in the 19th century. This crucial fact had already been reflected in the Royal Proclamation of 1763.

Based in part on the latter, between 1823 and 1832, the United States Supreme Court developed two doctrines with respect to the situation of Aboriginal peoples (the doctrine of domestic dependent nation and that of residual aboriginal sovereignty) in three decisions often cited in Canadian jurisprudence. These doctrines flow from a historical right of self-governance and they postulate the benevolence of the sovereign, two concepts enshrined in the common law.

The long history of independence of Aboriginal peoples and the many treaties made with them, both before and after 1763, attest to a similar reality in Canada. It was only relatively recently that a policy of displacement, settlement and assimilation of Aboriginal peoples supplanted this initial state of affairs, resulting in the devastation subsequently decried by several commissions of inquiry.

Yet, entire swaths of Aboriginal customary law remained intact, such as in matters of marriage or adoption. [ 52 ] A review of Canadian jurisprudence addressing Aboriginal self-government must begin with Calder [18] (1973), which dealt with the origin of Aboriginal title. This decision led to the Comprehensive Land Claims Policy mentioned earlier and to resulting agreements which recognized certain powers of Aboriginal peoples in managing their traditional territories.

These were followed by the reform brought about by the Constitution Act, 1982 and, in its wake, attempts to define the Aboriginal rights set out in s. 35 at constitutional conferences which were ultimately unsuccessful. [ 53 ] The ruling in Sparrow [19] (1990) firmly rejected the argument that s. 35 was merely a

preamble to future constitutional negotiations. It set out what could constitute an “existing” and “aboriginal” right, and the conditions under which a government could legitimately regulate that right. Borrowing from three judgments rendered by the United States Supreme Court between 1823 and 1832 and referred to above, Van der Peet [20] (1996) examined the legal framework for recognizing an Aboriginal right. The framework entails reconciling the pre-existence of Aboriginal societies with the sovereignty of the Crown by applying the test and the factors set out

by the Supreme Court of Canada. Further clarification was provided in Pamajewon [21] (1996). [ 54 ] Delgamuukw , [22] a case that came before the Supreme Court of Canada in 1997, simultaneously raised the issues of Aboriginal title and of Aboriginal self-government. The British Columbia Court of Appeal, sitting as a panel of five judges, had ruled on the subject in highly instructive reasons. Three of the justices had rejected the claims relating to Aboriginal title and to Aboriginal self-government. The two others had dissented, recognizing the existence of an inherent right to Aboriginal self-government.

In the Supreme Court, the debate bifurcated: on the issue of Aboriginal title, the decision significantly adapted the analysis set out in Van der Peet , but the Court declined to rule on the issue of the right of self-government because it deemed the trial record was insufficient to do so. There are other reference points in the jurisprudence, but the issue of self-government has not yet been judicially settled.

That said, the adaptations made to the Van der Peet test suggests that the existence of a generic right to self-government is a viable approach. [ 55 ] The right to Aboriginal self-government has also been the subject of significant political initiatives. For example, the 1992 Charlottetown Accord participants as a whole recognized the existence of such a right. The failure of that Accord was followed in 1995 by the federal government’s Self-Government Policy , which, while recognizing that right, favoured a negotiating model.

At the international level, the 2007 UN Declaration on the rights of Indigenous peoples affirms the existence of the right to self-determination of Indigenous peoples. In addition, the vast majority of doctrinal writers in Canada have expressed the opinion that s. 35 confirms the existence of a right of self-government. [ 56 ] The Attorney General of Quebec is correct in stating that

Part II of the Act is based on the premise that s. 35 recognizes the right to Aboriginal self-government. He is mistaken, however, in arguing that, in the instant case, Parliament has added to the content of s. 35 , that without a constitutional amendment the Act is invalid and that, in any event, it is sufficient for the Court to ascertain the unconstitutionality of this part of the Act without having to rule on whether or not s. 35 does indeed confirm the existence of the right in question.

Parliament can legislate based on what is set out in the Constitution, without first having to proceed by way of a court reference each time. Ultimately, however, it is for the courts to determine the constitutional validity of Parliament’s legislative choice. This necessarily implies that in ruling on the validity of the Act , the Court must consider the scope of s. 35 Aboriginal rights. If these do not include a right of self-government in relation to child and family services, that part of the Act must be declared ultra vires .

If the right falls within s. 35, the Court must then decide whether the framework established by the Act for circumscribing its exercise is itself constitutionally valid. [ 57 ] Is the Act incompatible with the notion of Canadian sovereignty or with the notion that the distribution of legislative powers between federal and provincial governments is exhaustive? As to the first point, we know that after 1763, Aboriginal peoples continued to live in organized and distinct societies with their own social and political structures.

Admittedly, before s. 35 came into force, the Crown and Parliament could, by different means, extinguish an Aboriginal right. This, however, required clear and unambiguous action on their part, but the record contains no pre- or post-Confederation statute to that effect. As to the second point, the Constitution Act, 1867 did not give Parliament and the provincial legislatures exclusive jurisdiction over the entirety of the law applicable in Canada: this is evidenced by the continued existence in Canada of Imperial statutes, the royal prerogative and British common law.

This non- exhaustive division of powers cannot have extinguished the right of Aboriginal peoples to govern themselves insofar as that right was an Aboriginal right and remained intact. [ 58 ] For the specific purposes of this reference, the question of whether or not there exists an Aboriginal right of self-government arises only in relation to the particular field of child and family services.

The central purpose of s. 35 is to effect reconciliation and preserve a constitutional space for Aboriginal peoples so as to allow them to live as peoples—with their own identities, cultures and values—within the Canadian framework. As a normative system, Aboriginal customary law relating to children and families forms part of those values. Moreover, the evidence filed in the record by the Attorney General of Canada shows that, together, children and families are the main channel for conveying the markers of Aboriginal identity.

Regulation of child and family services by Aboriginal peoples themselves cannot be dissociated from their Aboriginal identity and cultural development. [ 59 ] This right of self-government falls within s. 35 because it is a form of Aboriginal right. It is a generic right that extends to all Aboriginal peoples, because it is intimately tied to their cultural continuity and survival. In the past, significant barriers, such as residential schools, impeded the exercise of that right.

These situations, however, were never endorsed by Parliament, which never indicated, through clear and unambiguous legislation, its intention to extinguish the right. [ 60 ] Sparrow explained the conditions under which the government can regulate an Aboriginal right. These are stringent conditions.

When an aspect of government regulation is inconsistent with an Aboriginal right, that right prevails, unless the government can show that it is pursuing a compelling public objective, that the legislation is in keeping with the principles of minimal impairment and proportionality and, moreover, that it upholds the honour of the Crown. [ 61 ] It should be noted that this

interpretation of s. 35 with respect to the right of self-government seems entirely consistent with the principles set out in the UN Declaration . [ 62 ] Lastly, the Court must determine whether the framework established by the Act for circumscribing the exercise of the Aboriginal right at issue here is itself constitutionally valid.

This raises three questions pertaining to: (1) the constraints the Act imposes on the exercise of the Aboriginal right, (2) the potential status of Aboriginal laws as federal legislation, and (3) the legislated primacy of Aboriginal laws over provincial legislation. [ 63 ] The constraints imposed by the Act stem from the priority given to the best interests of the child, the requirement to comply with the national standards set out in the Act itself and the further requirement to respect the fundamental rights of individuals.

These appear to be compelling and substantial objectives that minimally restrict the exercise of the right of self-government, albeit challenges may arise on a case-by-case basis. The Act also specifies that the Canadian Charter applies to a governing body in the exercise of the right of self-government on behalf of an Aboriginal people.

However, read in light of the jurisprudence on s. 32 of the Canadian Charter , and given s. 25 of said Charter , it is difficult to see why this constraint would be unconstitutional. [ 64 ] When an Aboriginal governing body attempts to enter into a coordination agreement with a government and, in accordance with

the Act , enacts legislation in relation to child and family services, s. 21 of the Act specifies that the legislation has “the force of law as federal law”. The aim of this provision is to render the doctrine of federal paramountcy applicable to Aboriginal legislation. In this regard, the provision alters the fundamental architecture of the Constitution and is ultra vires . The doctrine of federal paramountcy, which is used to resolve irreconcilable conflicts between federal and provincial laws under certain conditions, pertains only to federal laws validly enacted under s. 91 of the Constitution Act, 1867 .

The legislative texts in question here, however, are not enactments of the federal government, but rather enactments of Aboriginal governing bodies exercising the s. 35 Aboriginal right of self-government of their peoples. Only s. 35, as interpreted by the courts, could confer precedence on such legislative texts. [ 65 ] The same is true of s. 22(3) of the Act , which provides that Aboriginal laws contemplated by s. 21 , of which s. 22(3) is the counterpart, prevail over any conflicting or inconsistent provisions of provincial legislation.

In exercising the powers conferred by s. 91(24) of the Constitution Act, 1867 , Parliament can certainly regulate an Aboriginal right recognized under s. 35 of the Constitution Act, 1982 , but it cannot thereby confer absolute priority on that right. Section 91(24) does not authorize Parliament to dictate every aspect of the provinces’ dealings with Aboriginal peoples, nor can Parliament completely disregard the provinces. The Canadian constitutional architecture is built on the basis of coordinated—not subordinated—governments, with the aim of guaranteeing each government autonomy in pursuing its objectives.

By giving absolute priority to the Aboriginal regulation of child and family services and setting aside the reconciliation test specific to s. 35 of the Constitution Act, 1982 , s. 22(3) violates this principle. [ 66 ] Recent Supreme Court of Canada jurisprudence confirms that provincial regulation of general application can apply to Aboriginal title to land. This is only possible, however, if the infringement resulting from such regulation can be justified under the existing s. 35 analytical framework.

The same approach applies to the right of self-government in relation to child and family services: it is the only approach that is consistent with the constitutional paradigm based on objectives of mutual respect and reconciliation between Aboriginal peoples, the Crown and Canadian society as a whole.

Consequently, although provincial child and family services schemes apply ex proprio vigore to Aboriginal persons on the territory of a given province, they cannot prevail over Aboriginal legislation enacted pursuant to the Aboriginal right of self-government and they cannot displace that legislation, in whole or in part, unless such provincial schemes satisfy the s. 35 impairment and reconciliation test. [ 67 ] The answer to the reference question, therefore, is as follows: The Act is constitutional, except for ss. 21 and 22(3) , which are not. 1- The context leading to the passage of the Act [ 68 ] Context provides an opportunity to set out the circumstances having given rise to an event.

In the instant case, the passage of the Act —which establishes principles and criteria for child and family services tailored to Aboriginal realities and cultures and which recognizes the right of Aboriginal peoples to enact legislative rules to implement those principles and criteria—represents a new stage in a lengthy process set in motion nearly two centuries ago.

The parties filed voluminous evidence whose broad strokes it is useful to set out because it forms the basis of many of their arguments and has not been dealt with in a previous judgment, the matter having come before the Court directly under a Notice of Reference. [ 69 ] The Act ’s passage follows a series of federal policies for the assimilation of Aboriginal persons implemented since Canada was colonized by European powers, more specifically since Confederation, as well as provincial policies for the apprehension of Aboriginal children which resulted in their removal from their communities. [ 70 ] These policies, which have been characterized as cultural genocide, [23] left tangible and painful traces affecting several generations of Aboriginal peoples.

There have been legal proceedings in relation to attendance at residential schools and to the mass placement of Aboriginal children outside their communities. [ 71 ] The situation evolved and some Aboriginal communities, through various agencies, began to provide child welfare services within the legislative framework in place in each of the provinces. Due to systemic constraints resulting from these legislative frameworks and from significant and chronic underfunding, the results were less than convincing.

The federal government’s funding method for services to Aboriginal children and families is completely inadequate and insufficient and does not allow Aboriginal children and families to obtain the services to which they are entitled in the same manner as the rest of the Canadian population.

The jurisdictional overlap between the two levels of government has also had perverse effects on the provision of these services. [ 72 ] Over the years, a number of commissions of inquiry ( Royal Commission on Aboriginal Peoples , Truth and Reconciliation Commission , Viens Commission and the National Inquiry into Missing and Murdered Indigenous Women and Girls ) have exposed the vagaries of the treatment of Aboriginal children and the devastating effects on them, their families and their communities, effects that linger to this day.

Aboriginal children are overrepresented in youth protection systems and continue to be placed with people outside their families at significantly higher rates than non-Aboriginal children. The commissions made a number of recommendations. All of them point to the need to let Aboriginal peoples take control of their child and family services. [ 73 ] It is in this context that the federal government created a working group to draft Bill C-92, which received Royal Assent on June 21, 2019 and came into force on January 1, 2020. (

a) Federal Aboriginal assimilation policies [ 74 ] While the following does not claim to be an exhaustive survey of the laws of the 19th and early 20th centuries, a review of some of those laws as well as the statements of politicians and state actors of the time lead to the conclusion that the purpose of Canada’s “Indian” policy was to assimilate Aboriginal peoples until they ceased to exist. These laws are complex and form part of the delicate relationship between Aboriginal peoples and the Crown. The intention here is not to provide a complete description nor a detailed analysis of those laws.

[ 75 ] The Act to encourage the gradual Civilization of the Indian Tribes [24] in this Province, and to amend the Laws respecting Indians [25] was enacted in 1857. This statute represents a milestone in the evolution of Canada’s Aboriginal policy. It starts from the principle that eliminating all legal distinctions between Aboriginal and non-Aboriginal persons through the process of enfranchisement will make it possible to fully integrate them in Canadian society.

Enfranchisement, the process through which Aboriginal persons free themselves from the protections associated with their status, was presented as a privilege, because it allowed them to become citizens and obtain the right to own property and to vote. Subject to specific requirements, only men could ask to be enfranchised and they had to satisfy certain conditions: be more than 21 years of age, be able to speak, read and write English or French, be relatively well educated, have no debts and be of “good moral character”, as determined by a committee of non-Aboriginal examiners.

To encourage them to abandon their status, enfranchised Aboriginal men received a piece of land not exceeding 50 acres in the reserve as well as their individual share of the treaty annuities and other revenues of the band. The wife and children of an enfranchised Aboriginal man automatically lost their status. [26] [ 76 ] As just mentioned, this statute evidenced a shift in Canada’s Aboriginal policy, since it could lead to the elimination of Aboriginal communities via enfranchisement.

The statute stripped reserve lands of the state’s protection, because in exchange for enfranchisement, those lands could gradually be given away, without the band’s consent. In addition to being sexist, the statute was also a step towards government control of the Aboriginal status, because it extended the enfranchisement mechanism to other individuals, depriving them of their status and band membership.

Lastly, by affirming the superiority of colonial culture and values, the statute heralded the beginning of a process of devaluing Aboriginal cultural identity. [ 77 ] At Confederation, pursuant to s. 91(24) of the British North America Act , [27] Parliament was given the power to make laws in relation to “Indians and Lands reserved for the Indians”.

Aboriginal peoples were not expressly recognized as stakeholders in this new tripartite structure comprised of the United Kingdom, the federal government and the provinces. [ 78 ] The Act providing for the organisation of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands [28] was enacted in 1868. The Secretary of State became the Superintendent General of Indian affairs and, in this capacity, had control and management of Aboriginal lands and property. The statute contained a definition of who was to be considered an Aboriginal person.

This definition excluded non-Aboriginal men who married Aboriginal women, but included non-Aboriginal women who married Aboriginal men. [29] [ 79 ] Two years after Confederation, the Act for the Gradual Enfranchisement of Indians [in French, Sauvages ] , the Better Management of Indian Affairs, and to Extend the Provisions of the Act 31st Victoria,

Chapter 42 [30] reiterated the previous provisions on the voluntary enfranchisement of Aboriginal men and established more drastic measures for accelerating the integration of Aboriginal persons in Canadian society. The statute went further and allowed the state to interfere in the exercise of Aboriginal self-government.

To justify this measure, government officials pointed to the opposition of traditional Aboriginal governments as the key impediment to achieving their goals of civilizing and enfranchising Aboriginal peoples. [31] [ 80 ] In 1876, the Act to amend and consolidate the laws respecting Indians [32] [in French, Sauvages ] was enacted. It is considered to be the first Indian Act . It codified and added significantly to prior laws pertaining to Aboriginal persons. Government policy was premised on the idea that Aboriginal persons were inferior to the rest of society.

The annual report of the department of the interior for the year 1876 expressed as follows the prevailing philosophy that Aboriginal persons were children of the state: Our Indian legislation [in French, au sujet des Sauvages ] generally rests on the principle, that the aborigines are to be kept in a condition of tutelage and treated as wards or children of the State. [...] The true interests of the aborigines and of the State alike require that every effort should be made to aid the Red man in lifting himself out of his condition of tutelage and dependence, and that is clearly our wisdom and our duty, through education and every other means, to prepare him for a higher civilization by encouraging him to assume the privileges and responsibilities of full citizenship. [33] [ 81 ] The 1876 statute established a legislative framework whose broad strokes have remained unchanged to this day.

Parliament treats Aboriginal peoples like children by taking control of their political structures, their land holding patterns, and their resource and economic development. The government’s policy on Aboriginal peoples is clear. The alternative set out by the Minister of the Interior, David Laird, when the bill was introduced in Parliament, expressed the policy transparently: “The Indians [in French, Sauvages ] must either be treated as minors or as white men”. [34] [ 82 ] While the 1876 statute did not add anything genuinely new, it was more complex and detailed.

It covered a number of important aspects of the lives of Aboriginal persons living on reserves. To facilitate the job of separating Aboriginal persons from those not entitled to the protection of the Aboriginal status attributed by the statute and band membership, it introduced new

definitions such as “band” and “reserve”, drawing on the policies described above. The statute defined an Aboriginal person as a male of Aboriginal blood or, in the case of mixed marriages, a non-Aboriginal woman married to such an Aboriginal male. Aboriginal women who married non-Aboriginal men lost their status. Moreover, Aboriginal women were excluded from taking

part in band land surrender decisions. [35] [ 83 ] Most of the protective features of earlier legislation were brought forward and made clear: no one other than an Aboriginal person who was a member of the band could live on or use reserve lands without a licence from the Superintendent General; no federal or provincial taxation on real and personal property was permitted on a reserve; and no liens under provincial law could be placed on “Indian” property, nor could such property be seized for debts. [36] [ 84 ] In the years that followed, the Canadian government amended the Indian Act , thereby directly attacking the cultural identity of Aboriginal peoples by banning certain cultural and spiritual practices. [37] [ 85 ] In extending its assimilation policies, Canada also adopted a policy to separate Aboriginal children from their parents.

In 1883, Canadian Prime Minister John A. Macdonald stated in the House of Commons that this measure was required in order to break the connection of those children with their culture and identity: When the school is on the reserve the child lives with its parents, who are savages; he is surrounded by savages, and though he may learn to read and write his habits, and training and mode of thought are Indian. He is simply a savage who can read and write. It has been

strongly pressed on myself, as the head of the Department, that Indian children should be withdrawn as much as possible from the parental influence, and the only way to do that would be to put them in central training industrial schools where they will acquire the habits and modes of thought of white men. [38] [ 86 ] Pursuant to amendments made to the Indian Act in 1894, [39] the federal government adopted regulations on residential school attendance. [40] In principle, such attendance was voluntary. At that time, however, there were no formal child welfare services.

Thus, if an “Indian” agent or a justice of the peace thought that an Aboriginal child was not being properly cared for or educated, he could issue an order to place the child in an industrial or boarding school. Ultimately, no child could be discharged from a school without departmental approval, even if the parents had enrolled the child voluntarily.

This policy, which had no legislative basis, relied on the admission form that parents were required to sign, as of 1892, when enrolling their children in residential schools. [41] [ 87 ] As early as 1883, the federal government established the first residential schools for Aboriginal children. Over the years that followed, the system grew considerably (nearly 140 residential schools).

As of the 1940s, residential schools, while not designed as such, [42] served as de facto provincial child welfare services and apprehended many children whose living conditions were considered unsatisfactory. [43] The Catholic, Anglican, United, Methodist and Presbyterian churches were involved in the administration of residential schools. This partnership between the government and religious communities ended in 1969.

Most of the schools closed in the 1980s, although a few remained open until the end of the 1990s. [44] [ 88 ] In 1920, the federal government amended the Indian Act [45] to give it the power to strip individuals of their status against their will. [46] The other major element of the amendments to the Indian Act was the power to compel parents to send their children to residential schools.

In presenting this amendment to a parliamentary committee, Indian Affairs Deputy Minister Duncan Campbell Scott did not hide the fact that he was working towards the disappearance of Aboriginal peoples: Our object is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic, and there is no Indian question, and no Indian Department. [47] [ 89 ] Life for children in residential schools was dire.

Due to a lack of resources and infrastructure to provide for their care, they were neglected and abused and “grew up unloved”. [48] Torn from their homes and families, they felt like they had been captured and locked away. They were stripped of their personal belongings and clothing. These were replaced with so-called civilized clothing, makeshift clothing that was worn out and inadequate. [49] They were separated from their siblings and lived in isolation.

To identify them, they were attributed a number which could change over the years. [50] Not only was the education Aboriginal children received mediocre, but it was undermined by the amount of work they were required to perform for the school because of the self-sufficiency requirements imposed on residential schools.

They were expected to grow and prepare the food they ate, make and mend much of their clothing and maintain the schools. [51] The government adopted a hostile approach to Aboriginal languages, and their use was harshly suppressed. [52] The food served in residential schools was inadequate and the children suffered from malnutrition. [53] Living conditions in residential schools were also alarming. [54] The number of deaths cannot be accurately tallied because files were destroyed or are incomplete, but we know that the situation was tragic: A January 2015 statistical analysis of the Named Register for the period from 1867 to 2000 identified 2,040 deaths.

The same analysis of a combination of the Named and Unnamed registers identified 3,201 reported deaths. The greatest number of these deaths (1,328 on the Named Register and 2,434 on the Named and Unnamed registers) took place prior to 1940. […] […] The death rates for Aboriginal children in the residential schools were far higher than those experienced by members of the general Canadian population. […] [55] [ 90 ] The buildings housing Aboriginal children constituted serious fire hazards due to their bad construction, poor maintenance and the deplorable condition of the firefighting equipment.

They also had inadequate ventilation. Rampant overcrowding led to the spread of infectious diseases, including tuberculosis. [56] Dr. Peter Bryce, the chief medical officer for Indian Affairs, decried this situation in his 1907 annual report. The death toll for the 1,537 children in his survey of 15 schools was 24%, and this figure might have risen to 42% if the children who returned to their reserves had been tracked. [57] [ 91 ] In addition to these inhumane conditions under which Aboriginal children lived, there were other unspeakably cruel rules.

They lived almost military lives, where no exceptions were allowed. Breaking the rules meant punishments ranging from insults to harsher forms of discipline such as slaps with a ruler or strap, or even extremely severe punishments such as being forced to kneel for hours on end, being confined to a shower, being locked in a closet or room, sometimes for days at a time, being deprived of meals, being forced to eat soap, etc. [58] This reign of terror had other tragic consequences: children attempted suicide, died after running away, etc.

In addition to this violence, children in residential schools were subjected to sexual abuse that filled them with shame, plunged them into depression and created serious and lasting harm. [59] [ 92 ] The federal government gradually realized that the residential schools had disastrous effects on Aboriginal children and that it was unable to care for them [60] and, as of 1947, it began to encourage the provinces to provide Aboriginal persons with the social services they were already offering to the non-Aboriginal population, including child welfare services. [61] In 1951, Parliament enacted s. 87 (now s. 88 ) of the Indian Act [62] which, with some exceptions mentioned in that provision, prescribed that laws of general application in a province were applicable to Aboriginal persons in that province.

This provision opened the door to the application of the various child welfare regimes to Aboriginal children. As we will see, the situation of Aboriginal children and families did not really improve. (

b) Provincial policies for the apprehension of Aboriginal children [ 93 ] For nearly one century, the federal government applied a policy for the assimilation of Aboriginal peoples. In order to achieve this objective, it deliberately chose to separate Aboriginal children from their parents and natural environment and have them attend residential schools.

[ 94 ] The end of the residential school system, however, did not spell the end of the forced separation of Aboriginal children from their families. Provincial child welfare services effectively took over from the residential schools when, following the adoption of s. 88 of the Indian Act , provincial governments began to offer child welfare services to Aboriginal populations on reserves. For Aboriginal families and communities, the impact of this new situation was just as devastating. Some children were simply moved from residential schools to foster families within the provincial system.

Furthermore, some provinces, being of the view that the federal government should bear the costs of services offered to Aboriginal families and children, did not immediately take on the duties transferred to them, and some were only inclined to intervene when there was a danger of death. [63] [ 95 ] When provincial governments began to intervene on a more regular basis, pursuant to funding agreements with the federal government, [64] they effectively perpetuated the assimilative policy embodied in the residential school system.

Thousands of children were removed from their natural environment and adopted out to non-Aboriginal families: The provincial social workers assigned to reserves assessed child safety and welfare by mainstream cultural standards. They received little or no training in Aboriginal culture. They were not trained to recognize problems rooted in generations of trauma related to the residential schools. Instead, they passed judgment on what they considered bad or neglectful parenting. As a result, beginning in the 1960s, provincial child welfare workers removed thousands of children from Aboriginal communities.

It has been called the “Sixties Scoop.” Aboriginal children were placed in non-Aboriginal homes across Canada, in the United States, and even overseas, with no attempt to preserve their culture and identity. The mass adoptions continued between 1960 and 1990 . The Sixties Scoop children suffered much the same effects as children who were placed in residential schools. Aboriginal children adopted or placed with white foster parents were sometimes abused. They suffered from identity confusion, low self-esteem, addictions, lower levels of educational achievement, and unemployment.

They sometimes experienced disparagement and almost always suffered from dislocation and denial of their Aboriginal identity. [65] [Emphasis added] [ 96 ] The impact of the mass removal of Aboriginal children as of the 1960s has been described as “horrendous, destructive, devastating and tragic” [66] and was found to have been as damaging as attendance at residential schools where Aboriginal children were with their peers: Residential schools incarcerated children for 10 months of the year, but at least the children stayed in an Aboriginal peer group; they always knew their First Nation of origin and who their parents were and they knew that eventually they would be going home.

In the foster and adoptive system, Aboriginal children vanished with scarcely a trace, the vast majority of them placed until they were adults in non-Aboriginal homes where their cultural identity and legal Indian status, their knowledge of their own First Nation and even their birth names were erased, often forever. [67] [ 97 ] The devastating effect of what is referred to as the “Sixties Scoop”—which resulted in the mass adoption of Aboriginal children —is at the root of major identity and behavioural issues.

In her expert report, Christiane Guay discusses studies that have shown the negative impacts of these adoptions.

Some children had difficulty identifying with the culture of their foster family, while others suffered from racism and from the stereotyping of their native culture. [68] In many cases, the fact that they were trapped between two cultures caused [ translation ] “these children to suffer from a negative self-image and drove many of them to seek comfort in alcohol and drugs to escape their suffering. […] Commentators have also shown that these problems also led to suicidal thoughts or a greater propensity for crime […]”. [69] [ 98 ] Faced with this wave of systematic “abductions”, several communities established agencies so as to provide certain child welfare services themselves. [70] These agencies, however, must comply with provincial laws and applicable criteria, [71] which do not necessarily reflect Aboriginal cultures or reality.

This problem is compounded by the chronic and significant underfunding of services, as we will see. (

c) Legal proceedings related to residential schools and to the apprehension of Aboriginal children [ 99 ] Until the 1990s, over 150,000 Aboriginal children attended residential schools run by religious organizations and funded by the Government of Canada.

Thousands of these children suffered physical, psychological and sexual abuse during their stay in these schools. [ 100 ] As documented in the report of the Truth and Reconciliation Commission and that of the Viens Commission , among others, the legacy of the tragic history of residential schools and of the Government of Canada’s assimilation policies can be seen in the significant disparities noted between Aboriginal and non-Aboriginal populations in terms of education, income, health and social life. It is also reflected in the racism and the systemic discrimination Aboriginal individuals face.

This is a proven fact that only those who lack awareness of the facts and the law would question. [72] Most Aboriginal languages are in danger of disappearing because the children were denied the right to use them. The disproportionate number of incarcerated Aboriginal persons and the disproportionate number of Aboriginal children apprehended by provincial child welfare services are attributable in part to the abuse suffered in the residential schools and to the fact that the children who attended them were deprived of role models and a relationship with their families.

The legacy of the abuse and of the consequences suffered by the children who attended residential schools also affects their spouses, children and grandchildren, their extended families and their communities. [73] According to the expert report of Christiane Guay, in most instances, attendance at residential schools is associated [ translation ] “with identity issues, addiction, increased psychological distress and a greater probability of experiencing other trauma (sexual assault, physical assault, domestic violence, etc.)”. [74] [ 101 ] Former residential school students instituted numerous individual and class actions.

In 2006, the IRS Settlement Agreement was signed, [75] and, subject to the approval orders, the parties agreed to amend and merge all of the existing proposed class action

statements of claim to assert a common series of class actions for the purposes of settlement. [ 102 ] The IRS Settlement Agreement settles all of these class actions. It is designed to provide fair and comprehensive compensation for the effects of residential schools on those who attended them and to promote healing, education, truth, reconciliation and commemoration, particularly by financially compensating former residential school students.

The IRS Settlement Agreement has five central elements: (1) a common experience payment; (2) a payment for personal injury, determined through an independent assessment process; (3) support, including funds for the Aboriginal Healing Foundation; (4) support for residential school commemoration; and (5) the establishment of the Truth and Reconciliation Commission . [ 103 ] Former residential school students can therefore receive two forms of financial compensation: the common experience payment provides eligible individuals with financial compensation based on the duration of their attendance at a residential school and the personal experience payment provides compensation for abuses and wrongful acts that resulted in serious psychological and physical consequences. [ 104 ] In June 2008, following the negotiation of the IRS Settlement Agreement , Prime Minister Stephen Harper apologized to the students on behalf of Canada.

In his statement, he acknowledged that the goal of these schools was to separate Aboriginal children from their homes and families in order to better assimilate them: […] These objectives were based on the assumption Aboriginal cultures and spiritual beliefs were inferior and unequal.

Indeed, some sought, as it was infamously said, “to kill the Indian in the child.” Today, we recognize that this policy of assimilation was wrong, has caused great harm, and has no place in our country. [76] [ 105 ] Aboriginal individuals swept up in the Sixties Scoop instituted 23 class actions against the Government of Canada in provincial superior courts and in the Federal Court. [77] [ 106 ] In one of these proceedings, Brown v.

Canada (Attorney General) , [78] a 2017 case—excerpted above—in which the Ontario Superior Court of Justice ruled on the certified common issue after eight years of litigation, the Government of Canada was held liable for having failed in its common law duty towards children apprehended as part of the Sixties Scoop. [ 107 ] This judgment led to an overall settlement covering all of the class actions. This settlement was approved by the Federal Court in Riddle v. Canada [79] and by the Ontario Superior Court of Justice in Brown v. Canada (Attorney General) . [80] (

d) The various commissions of inquiry and their recommendations [ 108 ] Countless studies, reports and surveys on various aspects of the situation of Aboriginal peoples have denounced the discrimination and the systematic and abusive apprehension experienced by Aboriginal children and have suggested avenues for reform. [ 109 ] Of these, four merit particular attention: the Royal Commission on Aboriginal Peoples , the Truth and Reconciliation Commission , the Viens Commission and the National Inquiry into Missing and Murdered Indigenous Women and Girls. [ 110 ] The Royal Commission on Aboriginal Peoples , which was established on August 26, 1991, [81] was given comprehensive terms of reference.

It was tasked with investigating the evolution of the relationship among Aboriginal peoples, the Canadian government, and Canadian society as a whole. It was expected to propose specific solutions, informed by domestic and international experience, to the problems which have plagued those relationships and which confront Aboriginal peoples today. The Commission was to examine all issues it deemed relevant to any or all of the Aboriginal peoples of Canada. [82] [ 111 ] The Commission submitted its report in October 1996.

To redress the wrongs associated with the residential schools, it recommended concerted action on a number of fronts, including: (1) the creation of an Aboriginal university and the recommendation that the federal government fund the establishment and operation of a national Aboriginal archive and library to house records concerning residential schools; [83] (2) access to appropriate methods of healing for all individuals suffering the effects of physical, sexual or emotional abuse experienced in the residential schools; [84] and (3) the need for further inquiry and investigation into the profound cruelty inflicted on Aboriginal persons by residential school policies. [85] [ 112 ] The Commission’s general recommendations were based on a renewed relationship emphasizing recognition of the fact that Aboriginal peoples are peoples and have a right of self-government: IN THIS REPORT WE HAVE made recommendations affecting virtually every aspect of Aboriginal people’s lives.

We have sought to grapple with entrenched economic and social problems in Aboriginal communities while also seeking to transform the relationship between Aboriginal nations and Canadian governments. Each problem addressed would be difficult to resolve on its own; the problems are rendered more challenging by their interdependence. The scale and complexity of the task is daunting. Implementation will be much easier,

[…]