SUPREME COURT OF CANADA Citation: Reference re An Act respecting First Nations, Inuit and Métis children, youth and families , 2024 SCC 5 Appeals Heard: December 7 and 8, 2022 Judgment Rendered: February 9, 2024 Docket: 40061

Between: Attorney General of Quebec Appellant and Attorney General of Canada, Assembly of First Nations Quebec-Labrador, First Nations of Quebec and Labrador Health and Social Services Commission, Makivik Corporation, Assembly of First Nations, Aseniwuche Winewak Nation of Canada and First Nations Child & Family Caring Society of Canada Respondents And Between: Attorney General of Canada Appellant and Attorney General of Quebec Respondent - and - Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Alberta, Attorney General of the Northwest Territories, First Nations Child & Family Caring Society of Canada, Aseniwuche Winewak Nation of Canada, Assembly of First Nations, Makivik Corporation, Assembly of First Nations Quebec-Labrador, First Nations of Quebec and Labrador Health and Social Services Commission, Grand Council of Treaty #3, Innu Takuaikan Uashat mak Mani-utenam, Federation of Sovereign Indigenous Nations, Peguis Child and Family Services, Native Women’s Association of Canada, Council of Yukon First Nations, Indigenous Bar Association in Canada, Chiefs of Ontario, Inuvialuit Regional Corporation, Inuit Tapiriit Kanatami, Nunatsiavut Government, Nunavut Tunngavik Incorporated, NunanuKavut Community Council, Lands Advisory Board, Métis National Council, Métis Nation — Saskatchewan, Métis Nation of Alberta, Métis Nation British Columbia, Métis Nation of Ontario, Les Femmes Michif Otipemisiwak, Listuguj Mi’gmaq Government, Congress of Aboriginal Peoples, First Nations Family Advocate Office, Assembly of Manitoba Chiefs, First Nations of the Maa-Nulth Treaty Society, Tribal Chiefs Ventures Inc., Union of British Columbia Indian Chiefs, First Nations Summit of British Columbia, British Columbia Assembly of First Nations, David Asper Centre for Constitutional Rights, Regroupement Petapan, Canadian Constitution Foundation, Carrier Sekani Family Services Society, Cheslatta Carrier Nation, Nadleh Whuten, Saik’uz First Nation, Stellat’en First Nation, Council of Atikamekw of Opitciwan, Vancouver Aboriginal Child and Family Services Society and Nishnawbe Aski Nation Interveners Official English Translation Coram: Wagner C.J. and Karakatsanis, Côté, Brown, * Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.

Reasons for Judgment : (paras. 1 to 137) The Court Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports . * Brown J. did not participate in the final disposition of the judgment. IN THE MATTER OF a Reference to the Court of Appeal for Quebec concerning the constitutionality of the Act respecting First Nations, Inuit and Métis children, youth and families , S.C. 2019, c. 24 Attorney General of Quebec Appellant v.

Attorney General of Canada, Assembly of First Nations Quebec-Labrador, First Nations of Quebec and Labrador Health and Social Services Commission, Makivik Corporation, Assembly of First Nations, Aseniwuche Winewak Nation of Canada and First Nations Child & Family Caring Society of Canada Respondents - and - Attorney General of Canada Appellant v.

Attorney General of Quebec Respondent and Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Alberta, Attorney General of the Northwest Territories, First Nations Child & Family Caring Society of Canada, Aseniwuche Winewak Nation of Canada, Assembly of First Nations, Makivik Corporation, Assembly of First Nations Quebec-Labrador, First Nations of Quebec and Labrador Health and Social Services Commission,

Grand Council of Treaty #3, Innu Takuaikan Uashat mak Mani-utenam, Federation of Sovereign Indigenous Nations, Peguis Child and Family Services, Native Women’s Association of Canada, Council of Yukon First Nations, Indigenous Bar Association in Canada, Chiefs of Ontario, Inuvialuit Regional Corporation, Inuit Tapiriit Kanatami, Nunatsiavut Government, Nunavut Tunngavik Incorporated, NunanuKavut Community Council, Lands Advisory Board, Métis National Council, Métis Nation — Saskatchewan, Métis Nation of Alberta, Métis Nation British Columbia, Métis Nation of Ontario, Les Femmes Michif Otipemisiwak, Listuguj Mi’gmaq Government, Congress of Aboriginal Peoples, First Nations Family Advocate Office, Assembly of Manitoba Chiefs, First Nations of the Maa-Nulth Treaty Society, Tribal Chiefs Ventures Inc., Union of British Columbia Indian Chiefs, First Nations Summit of British Columbia, British Columbia Assembly of First Nations, David Asper Centre for Constitutional Rights, Regroupement Petapan, Canadian Constitution Foundation, Carrier Sekani Family Services Society, Cheslatta Carrier Nation, Nadleh Whuten, Saik’uz First Nation, Stellat’en First Nation, Council of Atikamekw of Opitciwan, Vancouver Aboriginal Child and Family Services Society and Nishnawbe Aski Nation Interveners Indexed as: Reference re An Act respecting First Nations, Inuit and Métis children, youth and families 2024 SCC 5 File No.: 40061. 2022: December 7, 8; 2024: February 9.

Present: Wagner C.J. and Karakatsanis, Côté, Brown, * Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ. on appeal from the court of appeal for quebec Constitutional law — Division of powers — Aboriginal peoples — Child and family services — Parliament enacting statute establishing national standards to protect Indigenous children and affirming Indigenous peoples’ inherent right of self-government in relation to child and family services — Whether statute is ultra vires Parliament’s jurisdiction under Constitution of Canada — Constitution Act, 1867, s. 91(24) — Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 .

In keeping with its commitments relating to the United Nations Declaration on the Rights of Indigenous Peoples (“Declaration”), which has been incorporated into Canada’s domestic positive law, and in response to the calls to action made by the Truth and Reconciliation Commission of Canada, Parliament enacted the Act respecting First Nations, Inuit and Métis children, youth and families (“Act”). The Act establishes national standards and provides Indigenous peoples with effective control over their children’s welfare.

In ss. 9 to 17, it sets out national standards and principles, which establish a normative framework for the provision of culturally appropriate child and family services that applies across the country. In ss. 8(

a) and 18(1), it affirms that t he inherent right of self-government recognized and affirmed by s. 35 of the Constitution Act, 1982 includes legislative authority in relation to Indigenous child and family services . As well, the Act establishes a framework within which Indigenous groups, communities or peoples may exercise the jurisdiction affirmed in ss. 8 (

a) and 18(1) of the Act. It also specifies how its provisions and the jurisdiction it affirms will interact with other laws.

Section 21 incorporates by reference the laws made by Indigenous groups, communities or peoples and gives them the force of law as federal law, and s. 22(3) states for greater certainty that the laws of Indigenous groups, communities or peoples prevail over provincial laws to the extent of any conflict or inconsistency. Following the Act’s enactment, the Attorney General of Quebec referred the question of its constitutional validity to the Quebec Court of Appeal, asking whether the Act is ultra vires Parliament’s jurisdiction under the Constitution of Canada.

The Court of Appeal held that the Act is constitutionally valid except for ss. 21 and 22(3), provisions that give the laws of Indigenous groups, communities or peoples priority over provincial laws. In its view, these provisions exceed Parliament’s jurisdiction because they impermissibly alter Canada’s constitutional architecture. The Attorney General of Quebec and the Attorney General of Canada appeal from the opinion given by the Court of Appeal. Held : The appeal of the Attorney General of Quebec should be dismissed, and the appeal of the Attorney General of Canada should be allowed.

The Act as a whole is constitutionally valid. The essential matter addressed by the Act involves protecting the well-being of Indigenous children, youth and families by promoting the delivery of culturally appropriate child and family services and, in so doing, advancing the process of reconciliation with Indigenous peoples. The Act falls squarely within Parliament’s legislative jurisdiction over “Indians, and Lands reserved for the Indians” under s. 91(24) of the Constitution Act, 1867 . Parliament embarked on a process of legislative reconciliation by means of an innovative statute.

Under this statute, Indigenous governing bodies and the Government of Canada will work together to remedy the harms of the past and create a solid foundation for a renewed nation-to-nation relationship in the area of child and family services, binding the Crown in its dealings with the country’s Indigenous peoples.

In this way, Parliament not only immediately meets the commitment made by Canada to implement the Declaration and respond to the call to action of the Truth and Reconciliation Commission of Canada, but also avoids the uncertainties of constitutional negotiations, the slowness of treaty settlements and the inevitable conflicts associated with court settlements . There are two stages in determining the constitutional validity of a law.

At the first stage of the analysis, which involves characterizing the law, a court identifies the purpose and effects of the law in order to determine its main thrust or dominant characteristic. In looking at the purpose of the law, the court considers both intrinsic evidence, such as the law’s

preamble, provisions and title, and extrinsic evidence, such as parliamentary debates. In looking at effects, the court must be concerned with legal effects, which flow directly from the provisions of the law itself, and practical effects, which are the side effects flowing from the law’s application. Next, at the second stage of the analysis, the court classifies the law by reference to the heads of power listed in ss. 91 and 92 of the Constitution Act, 1867 .

Given that the question referred to the Court of Appeal in this case did not relate to any specific provision of the Act, it is the Act in its entirety that must be first characterized and then classified. To begin with, the pith and substance of the Act flows from an examination of its aims and effects. The pith and substance of the Act, taken in its entirety, is to protect the well-being of Indigenous children, youth and families by promoting the delivery of culturally appropriate child and family services and, in so doing, to advance the process of reconciliation with Indigenous peoples.

First, the intrinsic evidence taken as a whole suggests that the Act’s overarching purpose is to protect the well-being of Indigenous children, youth and families in three interwoven ways: affirming Indigenous communities’ jurisdiction in relation to child and family services; establishing national standards applicable across Canada; and implementing aspects of the Declaration in Canadian law . Second, the purpose identified from the intrinsic evidence is confirmed by the extrinsic evidence.

Excerpts from the debates point to the seriousness of the problem of overrepresentation of Indigenous children in child and family services systems. They also clarify how the Act’s fundamental purpose is closely linked to the three aims identified from the intrinsic evidence. Affirming the legislative authority of Indigenous groups, communities and peoples and adopting national standards were viewed as an integral part of implementing aspects of the Declaration.

Similarly, the affirmation of legislative authority was also seen to sit comfortably alongside the national standards articulated by Parliament, because Indigenous communities had been participants in formulating the standards and were expected to be participants in implementing them thereafter. The three elements are aims that are mutually reinforcing to protect the well-being of Indigenous children, youth and families.

The legal effect of the Act is to establish a uniform scheme for protecting the well-being of Indigenous children, youth and families through the affirmation of Indigenous legislative authority, through national standards and through concrete implementation measures . Practically speaking, the Act may reasonably be expected to protect the well-being of Indigenous children, youth and families and to advance reconciliation with Indigenous peoples.

It is reasonable to expect that Indigenous children and families will receive services that are more appropriate to their cultural realities, which will reduce the overrepresentation of Indigenous children in child and family services settings. It is also reasonable to think that the Act will help avoid the waste of time and resources involved in prolonged litigation or negotiations over whether and, if so, to what extent a particular Indigenous group, community or people has jurisdiction in relation to child and family services.

The effects of the three interrelated categories of provisions are along the same lines. The provisions affirming the right of self-government have substantive legal effects because of the relationship that exists between legislation and government. The logical corollary of parliamentary sovereignty is that Parliament and the legislatures may bind the Crown through legislation. In conjunction with s. 7 of the Act, which expressly makes the Act binding on the Crown in right of

Canada or of a province, Parliament’s binding affirmation about the scope of s. 35 of the Constitution Act, 1982 binds the federalgovernment to the position it has affirmed as a matter of statutory positive law. Parliament undertakes to act as though Indigenouspeoples enjoy an inherent right of self-government in relation to child and family services and ensures that the Crown also undertakes toact in accordance with its position by expressly binding the Crown through s. 7.

Insofar as the affirmation in s. 18(1) of the Act is foundin a law that is constitutionally valid under s. 91(24) of the Constitution Act, 1867, Parliament’s affirmation and the Crown’s corollaryundertaking have effect. The combined operation of ss. 7, 8(

a) and 18(1) of the Act could also have other legal effects by requiring theCrown to act as though the principle of the honour of the Crown is engaged. With regard to practical effects, the affirmation performsthe pedagogical or educational function of the law. It may in part be viewed as a step toward changing or adjusting the culture underlyingthe actions of the federal and provincial governments and may help to inculcate new attitudes or approaches that will further promote aculture of respect for and reconciliation with Indigenous peoples in Canada.

The provisions setting out national standards establish a normative framework for the provision of culturally appropriatechild and family services that applies across the country. Some of these principles guide the courts’

interpretation of the Act and theadministration of the Act by governments. This normative framework is binding on federal and provincial providers of such services, aswell as on Indigenous providers in certain cases. Pending the full realization of Indigenous jurisdiction as recognized, many of thenational standards laid down may, on a practical level, operate to ensure that the child and family services provided in relation toIndigenous children are culturally appropriate for them and are in their best interests.

It may reasonably be expected that the standardsthat are preventive will lessen the historical propensity of child welfare systems to apprehend Indigenous children and thus that they willhelp such children remain, where possible, in the environment they are from. As for the standards that come into play after a decision hasbeen made to place a child, they are likely capable of reducing the disproportionate mass placement of Indigenous children outside theirfamilies and their communities. Addressing overrepresentation protects the well-being of Indigenous children, youth and families.

The provisions setting out concrete implementation measures facilitate the adoption by Indigenous groups, communities orpeoples of legislative measures in relation to child and family services. An anticipated practical effect of the Act is to make Canadian lawmore consistent with the Declaration. The Act also puts in place mechanisms to facilitate and encourage, from a forward-lookingperspective, the negotiation of agreements between the Crown and Indigenous communities.

It may also be anticipated that the Act’sprovisions will advance reconciliation with Indigenous peoples and accelerate certain aspects of this process of reconciliation. It may beexpected that Canada will move closer to the goal of establishing and maintaining a mutually respectful relationship between Indigenousand non-Indigenous peoples. With regard to the second stage of the analysis, which involves classifying the Act, Parliament’s jurisdiction under s. 91(24)of the Constitution Act, 1867 is a sound basis for its enactment.

Binding the federal government to the affirmation set out in s. 18(1),establishing national standards and facilitating the implementation of the laws of Indigenous groups, communities or peoples are allmeasures that are within Parliament’s powers under s. 91(24). The Act does not alter Canada’s constitutional architecture. First of all, the incidental effects of the national standards on the provinces’ exercise of their powers, including on the workof their public servants, have no impact on the Act’s constitutional validity.

The national standards are within federal jurisdiction and canaccordingly be binding on the provincial governments. The double aspect doctrine allows for the concurrent application of both federaland provincial legislation in relation to the same fact situation. Moreover, nothing prevents Parliament from affirming that Indigenous peoples’ inherent right of self-governmentrecognized and affirmed by s. 35 of the Constitution Act, 1982 includes legislative authority in relation to child and family services. Indoing so, Parliament is not unilaterally amending s. 35 of the Constitution Act, 1982.

Rather, it is stating in the Act, through affirmationsthat are binding on the Crown, its position on the content of this constitutional provision, which the division of powers and theseparation of powers do not prevent it from doing. The correctness of its position does not have to be determined to answer the referencequestion, and the classification of the affirmation under one of the heads of power in the Constitution Act, 1867 must, in the context ofthis question, be determined by the classification of the Act as a whole.

It is also constitutionally open to Parliament to use anticipatory incorporation by reference of provisions adopted by otherentities as a legislative drafting technique if Parliament has the legislative jurisdiction required to enact the law it seeks to referentiallyincorporate. Here, through s. 21, Parliament has validly incorporated by reference the laws, as amended from time to time, of Indigenousgroups, communities or peoples in relation to child and family services.

Parliament has independent legislative authority to enact suchlaws pursuant to its jurisdiction over Indians and lands reserved for the Indians under s. 91(24) of the Constitution Act, 1867. Therefore,s. 21 of the Act, which is simply an incorporation by reference provision, does not alter the architecture of the Constitution either. Lastly, it is equally open to Parliament to affirm that the laws of Indigenous groups, communities or peoples will prevailover other laws in the event of a conflict.

Section 22(3) of the Act is simply a legislative restatement of the doctrine of federalparamountcy, under which the provisions of a valid federal law prevail over conflicting or inconsistent provisions of a provincial law.Although paramountcy is a judicial doctrine whose scope and application are matters for the courts rather than Parliament or thelegislatures, this does not prevent Parliament from declaring its understanding of federal paramountcy. It is ultimately for the courts toadjudicate any alleged conflict between federal law and provincial law and to make any necessary declaration of paramountcy.

Therefore,the s. 22(3) paramountcy provision does not alter the architecture of the Constitution. Cases Cited Referred to: Canada (Attorney General) v. Thouin, 2017 SCC 46, [2017] 2 S.C.R. 184; R. v. Van der Peet, (SCC), [1996] 2 S.C.R. 507; Murray-Hall v. Quebec (Attorney General), 2023 SCC 10; Reference re Genetic Non-DiscriminationAct, 2020 SCC 17, [2020] 2 S.C.R. 283; References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11; Desgagnés Transport Inc.v. Wärtsilä Canada Inc., 2019 SCC 58, [2019] 4 S.C.R. 228; Kitkatla Band v.

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APPEALS from a judgment of the Quebec Court of Appeal (Thibault, Morissette, Bich, Bouchard and Mainville JJ.A.), 2022 QCCA 185 , [2022] AZ-51828978, [2022] J.Q. n o 727 (Lexis), 2022 CarswellQue 6265 (WL), in the matter of a reference concerning the constitutionality of the Act respecting First Nations, Inuit and Métis children, youth and families . The appeal of the Attorney General of Quebec is dismissed and the appeal of the Attorney General of Canada is allowed. Samuel Chayer , Francis Demers , Tania Clercq and Hubert Noreau-Simpson , for the Attorney General of Quebec.

Bernard Letarte , François Joyal , Andréane Joanette-Laflamme and Lindy Rouillard-Labbé , for the Attorney General of Canada. Franklin S. Gertler , Hadrien Burlone , Leila Ben Messaoud and Mira Levasseur Moreau , for the Assembly of First Nations Quebec-Labrador and the First Nations of Quebec and Labrador Health and Social Services Commission. Kathryn Tucker , Nuri G. Frame and Robin Campbell , for the Makivik Corporation. Stuart Wuttke and Adam Williamson , for the Assembly of First Nations. Claire Truesdale , for the Aseniwuche Winewak Nation of Canada. Naiomi W. Metallic , David P.

Taylor and Alyssa Holland , for the First Nations Child & Family Caring Society of Canada. Heather Leonoff , K.C. , and Kathryn Hart , for the intervener the Attorney General of Manitoba. Leah Greathead and Heather Cochran , for the intervener the Attorney General of British Columbia. Nicholas Parker , Matthew Parent and Angela Croteau , for the intervener the Attorney General of Alberta. Trisha Paradis , Sandra Jungles and John C. T. Inglis , for the intervener the Attorney General of the Northwest Territories. Robert Janes , K.C. , and Naomi Moses , for the intervener the Grand Council of Treaty #3.

Marie-Claude André-Grégoire , James A. O’Reilly , Michelle Corbu and Vincent Carney , for the intervener Innu Takuaikan Uashat mak Mani-utenam. Michael Seed , Nicholas Dodd and Rosa Victoria Adams , for the intervener the Federation of Sovereign Indigenous Nations. Earl C. Stevenson and Hafeez Khan , for the intervener the Peguis Child and Family Services. Sarah Niman and Kira Poirier , for the intervener the Native Women’s Association of Canada. Tammy Shoranick , James M. Coady , K.C. , and Daryn Leas , for the intervener the Council of Yukon First Nations.

Paul Seaman and Cam Cameron , for the intervener the Indigenous Bar Association in Canada. Maggie Wente , Krista Nerland and Jesse Abell , for the intervener the Chiefs of Ontario. Katherine Hensel , Kristie Tsang and Todd Orvitz , for the intervener the Inuvialuit Regional Corporation. Alyssa Flaherty-Spence , Brian A. Crane , K.C. , Graham Ragan and Kate Darling , for the interveners Inuit Tapiriit Kanatami,

the Nunatsiavut Government and Nunavut Tunngavik Incorporated. Jason T. Cooke and Ashley Hamp-Gonsalves , for the intervener the NunanuKavut Community Council. William B. Henderson , for the intervener the Lands Advisory Board. Jason T. Madden , Alexander DeParde and Emilie N. Lahaie , for the interveners the Métis National Council, the Métis Nation — Saskatchewan, the Métis Nation of Alberta, the Métis Nation British Columbia, the Métis Nation of Ontario and Les Femmes Michif Otipemisiwak. Zachary Davis and Ryland N. Weyman , for the intervener the Listuguj Mi’gmaq Government.

Andrew Lokan and Glynnis Hawe , for the intervener the Congress of Aboriginal Peoples. Joëlle Pastora Sala and Allison Fenske , for the intervener the First Nations Family Advocate Office. David Outerbridge , Craig Gilchrist and Rebecca Amoah , for the intervener the Assembly of Manitoba Chiefs. Maegen M. Giltrow , K.C. , Lisa C. Glowacki and Natalia Sudeyko , for the intervener the First Nations of the Maa-Nulth Treaty Society. Aaron Christoff and Brent Murphy , for the intervener Tribal Chiefs Ventures Inc.

Gib van Ert and Fraser Harland , for the interveners the Union of British Columbia Indian Chiefs, the First Nations Summit of British Columbia and the British Columbia Assembly of First Nations. Jessica Orkin , Natai Shelsen and Cheryl Milne , for the intervener the David Asper Centre for Constitutional Rights. François G. Tremblay , Christina Caron , Benoît Amyot and Thomas Dougherty , for the intervener Regroupement Petapan. Jesse Hartery , Simon Bouthillier and Allison Spiegel , for the intervener the Canadian Constitution Foundation. Scott A.

Smith , for the interveners the Carrier Sekani Family Services Society, the Cheslatta Carrier Nation, Nadleh Whuten, the Saik’uz First Nation and the Stellat’en First Nation. Frédéric Boily , Keven Ajmo , Stéphanie Ajmo and Jean-François Delisle , for the intervener the Council of Atikamekw of Opitciwan. Keith Brown and Maxime Faille , for the intervener the Vancouver Aboriginal Child and Family Services Society. Julian N. Falconer , Christopher Rapson and Mitchell Goldenberg , for the intervener the Nishnawbe Aski Nation. English version of the judgment delivered by The Court — I.

Introduction [ 1 ] In an order in council made on December 18, 2019, the Government of Quebec gave the province’s Attorney General a mandate to challenge, through a reference to the Court of Appeal, the constitutionality of the Act respecting First Nations, Inuit and Métis children, youth and families , S.C. 2019, c. 24 (“ Act ”), on the ground that it exceeds the jurisdiction of the Parliament of Canada.

Stating that the federal statute [ translation ] “raises fundamental constitutional issues with regard particularly to the division of legislative powers and the constitutional architecture of Canada”, the government referred the following constitutional question to the Quebec Court of Appeal: [ 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? (Order in council 1288-2019, (2020) 152 G.O.

II, 154, at p. 155) In answer to this question, the Court of Appeal held that the Act is constitutionally valid except for ss. 21 and 22(3), provisions that give the laws of Indigenous groups, communities or peoples priority over provincial laws and, as a result, exceed Parliament’s jurisdiction. [ 2 ] With the same question before it, this Court is of the opinion that the Act as a whole is constitutionally valid. It falls within Parliament’s legislative jurisdiction over “Indians, and Lands reserved for the Indians” under s. 91(24) of the Constitution Act, 1867 .

Since it concerns relationships within Indigenous families and the control exercised by Indigenous communities over Indigenous children, the impugned Act relates first and foremost to what is called Indigeneity or “Indianness”, that is, Indigenous peoples as Indigenous peoples, which requires its classification under s. 91(24) of the Constitution Act, 1867 . [ 3 ] The Act is part of a broader legislative program introduced by Parliament to achieve reconciliation with First Nations, the Inuit and the Métis “through renewed nation-to-nation, government-to-government and Inuit-Crown relationships based on recognition of rights, respect, cooperation and partnership” (preamble).

The framework serving as the foundation for this reconciliation initiative by Parliament is the United Nations Declaration on the Rights of Indigenous Peoples , G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (“Declaration” or “UNDRIP”), adopted by the United Nations General Assembly in 2007. That international instrument provides that “Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in

matters relating to their internal and local affairs” (art. 4). Among the matters dealt with in the Declaration, the provisions setting out“the right of indigenous families and communities to retain shared responsibility for the upbringing . . . and well-being of their children,consistent with the rights of the child” (preamble; see also art. 14) are of particular relevance to this reference.

The Declaration also refersto the right of Indigenous peoples to transmit their histories, languages and cultures to future generations (art. 13(1)), in addition toemphasizing the right not to be subjected to any act of violence, including “forcibly removing children of the group to another group”(art. 7(2)). [4] While the Declaration is not binding as a treaty in Canada, it nonetheless provides that, for the purposes of itsimplementation, states have an obligation to take, “in consultation and cooperation with indigenous peoples, . . . the appropriatemeasures, including legislative measures, to achieve the ends” of the Declaration (art. 38).

Recognized by Parliament as “a universalinternational human rights instrument with application in Canadian law”, the Declaration has been incorporated into the country’spositive law by the United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14 (“UNDRIP Act”), s. 4(a). Thisstatute recognizes that the Declaration “provides a framework for reconciliation” (preamble); s. 5 of the same statute requires theGovernment of Canada, in consultation and cooperation with Indigenous peoples, to take “all measures necessary to ensure that the lawsof Canada are consistent with the Declaration”.

The statute’s

preamble expressly provides that the implementation of the Declaration inCanada “must include concrete measures to address injustices” facing, among others, Indigenous youth and children. [5] The Act challenged in this reference is therefore directly in keeping with Canada’s commitment to “implementingthe United Nations Declaration on the Rights of Indigenous Peoples”, as the first recital of its

preamble confirms. The

preamble to theAct also refers to the calls to action of the Truth and Reconciliation Commission of Canada asking governments to “implement theUnited Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation” (Honouring the Truth, Reconcilingfor the Future:

Summary of the Final Report of the Truth and Reconciliation Commission of Canada (2015), at p. 191, call to actionNo. 43). This echoes one of the calls for justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls (seeReclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls(2019), vol. 1b, at pp. 167-218). At the centre of this process of reconciliation, the Act specifically addresses the harm caused toIndigenous children and their families. Its

preamble states that “Parliament recognizes the legacy of residential schools and the harm,including intergenerational trauma, caused to Indigenous peoples by colonial policies and practices”. In the

preamble, Parliament alsorecognizes the “disruption” that Indigenous women and girls have experienced in their lives in relation to child services and “theimportance of reuniting Indigenous children with their families and communities from whom they were separated in the context of theprovision of child and family services”.

To achieve these aims, Parliament affirms the need “to respect the diversity of all Indigenouspeoples, including the diversity of their laws”, and “to eliminate the over-representation of Indigenous children in child and familyservices systems”. [6] Parliament embarked on this process of legislative reconciliation in favour of Indigenous children by taking an[translation] “unusual” approach, as the Court of Appeal put it (2022 QCCA 185, at para. 515 ).

Section 8 sets out the threeelements of the Act’s purpose, which are all distinct legal avenues that are combined into an organic whole and have the samereconciliatory purpose: the affirmation for Canada, made by Parliament and binding on the Crown, of the vitality of Indigenous peoples’legislative authority in relation to child and family services, and the provision of such services on the basis of national standards. First,the Act’s purpose is to “affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services”(s. 8(a)).

This affirmation relates to what the Act calls the “laws” of Indigenous groups, communities or peoples, and it expresses the ideathat these would be the most appropriate laws to govern the situation of Indigenous children and families. Second — and somewhat incounterpoint to the first purpose mentioned — the Act sets out “principles applicable, on a national level, to the provision of child andfamily services in relation to Indigenous children” (s. 8(b)).

The development by Parliament of national legislative standards to protectIndigenous children is a direct response to the fourth call to action made by the Truth and Reconciliation Commission.

Third, the Act’spurpose is also to “contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples” (s. 8(c)).Again, this purpose responds to the Truth and Reconciliation Commission’s call for the Government of Canada to develop an action planand other concrete measures to achieve the objectives of the Declaration. [7] The three elements of the purpose set out in s. 8 reflect Parliament’s openness to using three different types of legalnorms that will be interwoven in this framework for reconciliation to ensure the well-being of Indigenous children: the legislativeauthority of Indigenous peoples in relation to child and family services, the legislative provisions enacted by Parliament to establishnational standards, and the international standards referred to in the Declaration.

The metaphor of “braiding” together these three types ofnorms has been helpfully proposed to explain how the Declaration should be implemented in Canada, so as to “work out how state lawand Indigenous law could be interwoven, with guidance from international law, to form a single, strong rope” (G. Christie, “IndigenousLegal Orders, Canadian Law and UNDRIP”, in UNDRIP Implementation: Braiding International, Domestic and Indigenous Laws(2017), 48, at p. 48; see also O. Fitzgerald and R.

Schwartz, “Introduction”, ibid., 1, at p. 3). [8] Announced in s. 8 and carried out by the Act as a whole, Parliament’s effort to braid this “rope” with three strandsconstitutes the specific framework for reconciliation when it comes to Indigenous child and family services, in the spirit of theDeclaration.

Canada’s commitment to implementing the Declaration and responding to the Truth and Reconciliation Commission’s callto action is thus met immediately; this avoids the uncertainties of constitutional negotiations, the slowness of treaty settlements enteredinto on a piecemeal basis by the Crown and each of the various Indigenous communities concerned, and the inevitable conflictsassociated with court settlements (on this point, see the explanations given by K. Wilkins, “Strategizing UNDRIP Implementation: SomeFundamentals”, in J.

Borrows et al., eds., Braiding Legal Orders: Implementing the United Nations Declaration on the Rights ofIndigenous Peoples (2019), 177). [9] Nothing prevents Parliament from affirming, as it does in s. 18(1) of the Act, that Indigenous peoples havejurisdiction to make laws in relation to child and family services.

This “affirmation”, through which Parliament declares that the inherentright of self-government recognized and affirmed by s. 35 of the Constitution Act, 1982 includes “legislative authority” in relation toIndigenous child and family services, certainly represents a legislative commitment that Parliament must honour in its conduct towardIndigenous peoples. Furthermore, nothing prevents Parliament from declaring, as it does in s. 7, that this commitment, like the othersmade toward Indigenous peoples in the Act for the protection of children, “is binding” on His Majesty.

This is of signal importance,because no enactment is binding on His Majesty or affects His Majesty or His Majesty’s rights or prerogatives in any manner, except as

mentioned or referred to in the enactment, as is the case with s. 7 (see

Interpretation Act , R.S.C. 1985, c. I-21, s. 17 ; Wilkins, at p. 184, citing Canada (Attorney General) v. Thouin , 2017 SCC 46 , [2017] 2 S.C.R. 184, at paras. 1 and 19-21 ). It is equally open to Parliament to affirm that the laws of Indigenous groups, communities or peoples will prevail over other laws in the event of a conflict. Moreover, it is clear that issues relating to the scope of s. 35 of the Constitution Act, 1982 and to the application of the doctrine of federal paramountcy are ultimately matters for the courts under Canadian law, not the legislative branch, since they raise questions of constitutional

interpretation. Plainly, Parliament may not, by enacting an ordinary statute, amend the Constitution, including the rights protected by s. 35 of the Constitution Act, 1982 , or alter the division of powers in the Constitution Act, 1867 . That being said, Parliament’s jurisdiction under s. 91(24) of the Constitution Act, 1867 is a sound basis for enacting federal legislation that contains such affirmations and imposes such obligations on His Majesty, just as it is a sound basis for imposing national standards for child and family services for Indigenous children (s. 8b)).

Contrary to what the Attorney General of Quebec argues, this in no way undermines the “constitutional architecture” of Canada. II. Context [ 10 ] For most of Canada’s history, lawmakers have wrongly employed a policy of assimilation aimed at “lifting [Indigenous peoples] out of [their] condition of tutelage and dependence, and . . . prepar[ing] [them] for a higher civilization” ( Annual Report of the Department of the Interior for the Year Ended 30th June, 1876 , reproduced in Sessional Papers , vol.

X, No. 7, 4th Sess., 3rd Parl., 1877, No. 11, at p. xiv, quoted in Report of the Royal Commission on Aboriginal Peoples , vol. 1, Looking Forward, Looking Back (1996), at p. 277; see also The Final Report of the Truth and Reconciliation Commission of Canada , vol. 1, Canada’s Residential Schools: The History,

Part 1 — Origins to 1939 (2015), at pp. 107-9). This history, which includes the residential schools policy, the “Sixties Scoop” and the harm and intergenerational trauma that resulted therefrom, is detailed in several reports published in recent decades (see, e.g., The Final Report of the Truth and Reconciliation Commission of Canada , vol. 1, Canada’s Residential Schools: The History,

Part 1 — Origins to 1939 and The History,

Part 2 — 1939 to 2000 (2015); Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (2019), vol. 1a). [ 11 ] The effects of these government policies are still being felt today. “In tandem with the residential school system, the child welfare system . . . became a site of assimilation and colonization by forcibly removing children from their homes and placing them with non-Indigenous families” ( Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls , vol. 1a, at p. 282).

The statistics on the overrepresentation of Indigenous children in child welfare systems are quite simply staggering. According to 2016 census data, about 7.7 percent of children under the age of 15 in Canada are Indigenous, but they represent 52.2 percent of children in foster care in private homes (Indigenous Services Canada, The Government of Canada announces the coming into force of

an Act respecting First Nations, Inuit and Métis children, youth and families , September 10, 2019 (online)). [ 12 ] Over time, Canada has abandoned its policy of assimilation in favour of a policy of reconciliation.

Parliament established the Truth and Reconciliation Commission of Canada and gave it a dual mandate to “reveal to Canadians the complex truth about the history and the ongoing legacy of the church-run residential schools” and to “guide and inspire a process of truth and healing, leading toward reconciliation within Aboriginal families, and between Aboriginal peoples and non-Aboriginal communities, churches, governments, and Canadians generally” ( Honouring the Truth, Reconciling for the Future , at p. 23). [ 13 ] The Truth and Reconciliation Commission of Canada issued several calls to action relating to the welfare of Indigenous children.

Notably, in call to action No. 4, the Commission call[s] upon the federal government to enact Aboriginal child-welfare legislation that establishes national standards for Aboriginal child apprehension and custody cases and includes principles that: i. Affirm the right of Aboriginal governments to establish and maintain their own child-welfare agencies. ii. Require all child-welfare agencies and courts to take the residential school legacy into account in their decision making. iii.

Establish, as an important priority, a requirement that placements of Aboriginal children into temporary and permanent care be culturally appropriate. ( Honouring the Truth, Reconciling for the Future , at pp. 143-44) The Commission also called upon governments to adopt and implement the UNDRIP in its entirety as a “framework for reconciliation” ( Honouring the Truth, Reconciling for the Future , at pp. 187-91, calls to action Nos. 43-44). [ 14 ] In 2016, Canada made a commitment internationally to support the UNDRIP “without qualification” and to implement it (C.

Bennett, Speech delivered at the United Nations Permanent Forum on Indigenous Issues, New York, May 10, 2016 (online)). The UNDRIP gives particular recognition to “the right of indigenous families and communities to retain shared responsibility for the upbringing, training, education and well-being of their children, consistent with the rights of the child” (preamble).

It states in arts. 3 and 4, respectively, that Indigenous peoples have the right to “freely determine their political status and freely pursue their economic, social and cultural development”, as well as the right, in exercising their right to self-determination, “to autonomy or self-government in matters relating to their internal and local affairs”.

Article 7(2) of the UNDRIP states that “Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.” Article 13(1) of the UNDRIP recognizes that Indigenous peoples have “the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures”, a right that is reinforced by the correlative duty of states to take measures to ensure that it is protected (art. 13(2)).

Further, art. 38 of the UNDRIP provides that “States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of th[e] Declaration.” [ 15 ] In 2021, Parliament enacted the UNDRIP Act , s. 4(

a) of which affirms the Declaration “as a universal international

human rights instrument with application in Canadian law”. It is therefore through this Act of Parliament that the Declaration is incorporated into the country’s domestic positive law. In s. 4(b), the statute states that its purpose is also to “provide a framework for the Government of Canada’s implementation of the Declaration”. In s. 5, it provides that the “Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration”. Further, s. 6(2)(

b) provides that the minister responsible for the statute must prepare and implement an action plan, which must include “measures related to monitoring, oversight, recourse or remedy or other accountability measures with respect to the implementation of the Declaration”. More generally, in the

preamble to this statute, Parliament emphasized the Government of Canada’s commitment to “taking effective measures — including legislative, policy and administrative measures — at the national and international level, in consultation and cooperation with Indigenous peoples, to achieve the objectives of the Declaration”. Parliament also referred in the

preamble to the call for it to implement the UNDRIP made by the Truth and Reconciliation Commission in its calls to action and by the National Inquiry into Missing and Murdered Indigenous Women and Girls in its calls for justice. [ 16 ] The call for lawmakers to pass legislation affirming self-government for Indigenous peoples and facilitating the exercise of these rights has been echoed in other contexts.

Internationally, for example, the importance of such measures has been repeatedly pointed out (see, e.g., UNDRIP, art. 38; United Nations, General Assembly, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, S. James Anaya , U.N. Doc.

A/HRC/9/9, August 11, 2008; United Nations, Office of the High Commissioner for Human Rights, Statement upon conclusion of the visit to Canada by the United Nations Special Rapporteur on the rights of indigenous peoples, James Anaya , October 15, 2013 (online)). [ 17 ] Taking legislative measures of this kind has been described as being part of a process that some have termed “legislative reconciliation”, that is, the enactment of legislation “to respect, promote, protect, and accommodate inherent rights through mechanisms or frameworks elaborated upon within the statute” (see N. S. W.

Metallic, “Aboriginal Rights, Legislative Reconciliation, and Constitutionalism” (2023), 27:2 Rev. Const. Stud. 1, at p. 5). In other words, legislation of this kind does not purport to be the source of the rights in question, but rather proceeds on the premise that these rights exist. Similar initiatives have also been described as “recognition legislation”, including in the Report of the Royal Commission on Aboriginal Peoples , vol. 2, Restructuring the Relationship (1996), at p. 314 (see also S. Grammond, “Recognizing Indigenous Law: A Conceptual Framework” (2022), 100 Can.

Bar Rev. 1, at pp. 20-21). [ 18 ] Certain legislative initiatives predicated on the recognition of Indigenous rights have been adopted. For instance, the Indigenous Languages Act , S.C. 2019, c. 23 , begins by stating in its

preamble that “the recognition and implementation of rights related to Indigenous languages are at the core of reconciliation with Indigenous peoples and are fundamental to shaping the country, particularly in light of the Truth and Reconciliation Commission of Canada’s Calls to Action”. III. Overview of the Act [ 19 ] In keeping with its commitments relating to the UNDRIP, Parliament decided to enact innovative legislation that establishes national standards and provides Indigenous peoples with effective control over their children’s welfare. From the outset, Parliament recognizes in the Act ’s

preamble itself that a comprehensive reform of Indigenous child and family services is needed to address the overrepresentation of children in family services systems. This reform, which includes an affirmation of Indigenous peoples’ jurisdiction in relation to such services, will be an important step on the path to reconciliation. The purpose of the Act includes affirming the inherent right of self-government (s. 8(a)) and, as s. 9(2) specifies, the Act is to be interpreted in accordance with the principle of “cultural continuity” for Indigenous peoples.

Parliament places the child at the centre of this idea of cultural continuity for obvious reasons: ensuring that Indigenous peoples themselves exercise control over child services will help to avoid the intergenerational trauma and assimilation policies of the past (see the

preamble). The fact that a child resides with members of his or her family and community strengthens the transmission of Indigenous culture and often promotes the child’s best interests (s. 9(2)). Of course, a legislative affirmation regarding the

interpretation to be given to a constitutional norm is not binding on the courts. [ 20 ] The collaboration between Indigenous peoples and government bodies that led to the enactment of the Act , which contains express declaratory provisions, highlights Parliament’s firm commitment to establishing a new legislative structure for reconciliation.

Under this framework created by the Act , Indigenous governing bodies and the Government of Canada will work together to remedy the harms of the past and create a solid foundation for a renewed nation-to-nation relationship in the area of child and family services, binding the Crown in its dealings with the country’s Indigenous peoples. [ 21 ] The Act therefore represents one more step toward reconciliation. Indeed, its

preamble expressly acknowledges much of the context set out above. It states that the Act is intended to “implemen[t] the United Nations Declaration on the Rights of Indigenous Peoples”, to recognize “the legacy of residential schools and the harm, including intergenerational trauma, caused to Indigenous peoples by colonial policies and practices”, and to respond to the calls to action made by the Truth and Reconciliation Commission of Canada. [ 22 ]

Section 8 states that the purpose of the Act is to (

a) affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services; (

b) set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children; and (

c) contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples. These three interwoven elements of the purpose can be found in various places in the Act , which “is binding on Her Majesty in right of Canada or of a province” (s. 7). [ 23 ] For instance, the affirmation of the inherent right of self-government made in s. 8(

a) also appears in s. 18(1) : Affirmation

(1) The inherent right of self-government recognized and affirmed by

section 35 of the Constitution Act, 1982 includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority. [ 24 ] This affirmation is also reflected in s. 2 of the Act , which requires that the Act be interpreted in a way that upholds all rights under s. 35 of the Constitution Act, 1982 . Indeed, Parliament states in s. 2 that the Act “is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by

section 35 of the Constitution Act, 1982 , and not as abrogating or derogating from them”. [ 25 ] Further, the “principles applicable, on a national level,” referenced in s. 8(

b) find expression in ss. 9 to 17 , which establish national standards for the provision of child and family services in relation to Indigenous children.

Section 9 states that the Act “is to be interpreted and administered in accordance with the principle of the best interests of the child” and emphasizes the principles of cultural continuity and substantive equality. Section 10(3) sets out the factors to be considered in determining the best interests of an Indigenous child.

Section 11 provides that child and family services are to be provided in a manner that takes into account a child’s needs and culture, allows the child to know his or her family origins, and promotes substantive equality. Section 12(1) requires a service provider to give notice to a child’s parent and the relevant Indigenous governing body before taking any significant measure in relation to the child.

Section 13 establishes the right of the parents, the care provider and the Indigenous governing body to make representations in the context “of a civil proceeding in respect of the provision of child and family services in relation to an Indigenous child”.

Section 14 prioritizes preventive care, including prenatal services.

Section 15 prohibits apprehending an Indigenous child “solely on the basis of his or her socio-economic conditions”. Sections 16 and 17 establish an order of priority for the placement of a child, “to the extent that it is consistent with the best interests of the child”. [ 26 ] As well, the Act establishes a framework within which Indigenous groups, communities or peoples may exercise the jurisdiction affirmed in ss. 8(

a) and 18(1) . The Act provides that Indigenous governing bodies intending to exercise such jurisdiction may give notice to and request to enter into coordination agreements with the responsible federal minister and the provincial governments concerned (s. 20(1) and (2)). When they enter into such an agreement, or when they make reasonable efforts to do so during a period of one year after their request, their “law, as amended from time to time . . . also has, during the period that the law is in force, the force of law as federal law” (s. 21(1)).

The provisions respecting child and family services in the laws made by Indigenous groups, communities or peoples apply “in relation to an Indigenous child except if the application of the provision[s] would be contrary to the best interests of the child” (s. 23). [ 27 ] The Act also specifies how its provisions and the jurisdiction it affirms will interact with other laws.

First, s. 19 states that “[t]he Canadian Charter of Rights and Freedoms applies to an Indigenous governing body in the exercise of jurisdiction in relation to child and family services on behalf of an Indigenous group, community or people.” Second, s. 3 stipulates that the provisions of existing treaties or self-government agreements that contain provisions respecting child and family services prevail over the Act ’s provisions to the extent of any conflict or inconsistency.

Third, ss. 21(3) and 22(1) state that the only federal legislative provisions that prevail over the laws of Indigenous groups, communities or peoples made as a result of entering into a coordination agreement or after a year of reasonable efforts to enter into such an agreement are ss. 10 to 15 of the Act and the provisions of the Canadian Human Rights Act , R.S.C. 1985, c. H-6 .

Fourth, with respect to provincial laws, s. 22(3) states, “[f]or greater certainty”, that the laws of Indigenous groups, communities or peoples made pursuant to a coordination agreement or after a year of reasonable efforts to enter into such an agreement prevail over provincial laws to the extent of any conflict or inconsistency. Where there is no conflict or inconsistency, however, the Act provides that nothing in it affects the application of any provincial statute or regulation (s. 4).

Finally, s. 24(1) of the Act sets out how to resolve cases in which there is a conflict or inconsistency, in relation to an Indigenous child, between the laws of two Indigenous groups, communities or peoples. IV.

The Reference Question [ 28 ] Following the Act’s enactment, the Attorney General of Quebec referred the following question to the Quebec Court of Appeal: 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? [ 29 ] This question involves determining whether Parliament had jurisdiction to enact the Act . To answer this question, we must also address the objections raised to the effect that the Act alters Canada’s constitutional architecture.

One of the recitals in the order in council concerning the reference mentions this specific aspect: [ translation ] Whereas this federal statute raises fundamental constitutional issues with regard particularly to the division of legislative powers and the constitutional architecture of Canada; (Order in council 1288-2019, at p. 154) V.

Opinion of the Quebec Court of Appeal ( 2022 QCCA 185 ) [ 30 ] In answer to the question of whether the Act is ultra vires Parliament, the Court of Appeal found that it is not, except for ss. 21 and 22(3) of the Act , which impermissibly alter Canada’s constitutional architecture. [ 31 ] In its analysis, the Court of Appeal divided the Act into two parts: [ translation ] “Part I”, including the establishment of national standards, and “Part II”, including the affirmation of jurisdiction and the provisions relating to incorporation by reference and paramountcy. [ 32 ] The Court of Appeal began by observing that [ translation ] “[t]his legislative initiative was evidently guided by the [UNDRIP]” (para. 27).

In light of this relationship along with the purpose and effects of the Act , the court concluded that the pith and substance of the Act is [ translation ] “to protect and ensure the well-being of Aboriginal children, families and peoples by promoting

culturally appropriate child services, with the aim of putting an end to the overrepresentation of Aboriginal children in child servicessystems” (para. 333).

As a result, the Act [translation] “is a valid exercise of federal jurisdiction over Aboriginal peoples” (para. 355).This is so despite the Act’s potential incidental effects on the work of provincial public servants and despite the provinces’ previouslegislative initiatives in this area (paras. 347-49). [33] The Court of Appeal held that Parliament [translation] “can regulate and delineate Aboriginal rights” and “define thescope of those rights” (para. 448) and that this does not amount to amending the Constitution, because it is the courts that will have thelast word in this regard.

In its view, all of what it called “Part II” would be invalid if the affirmation in s. 18(1) were incorrect. This part[translation] “is based solely on the premise that s. 35 recognizes and affirms the right to Aboriginal self-government” (para. 437).[translation] “If s. 35 does not include this right, then

Part II of the Act must be declared unconstitutional as a whole, because the premiseon which it is based is invalid” (para. 453). The Court of Appeal therefore found that it had to consider whether the right ofself-government in relation to child and family services is an Aboriginal right recognized and affirmed by s. 35 of the Constitution Act,1982. [34] The Court of Appeal stated that the test from R. v. Van der Peet, (SCC), [1996] 2 S.C.R. 507,should be adapted in the context of a claimed generic right of self-government.

It reasoned that the claimed Aboriginal right ofself-government includes at least the right of self-regulation in relation to child and family services (paras. 486-94). [translation] “[I]t is ageneric right that extends to all Aboriginal peoples” (para. 494). [35] The Court of Appeal then held that ss. 21 and 22(3) were invalid because they would have the effect of unilaterallyamending the Constitution by giving the laws of Indigenous groups, communities or peoples priority over provincial laws (paras. 538,541 and 543-44).

The court explained that laws made in reliance on the s. 35 right of self-government [translation] “are not federal lawsenacted under s. 91 and subject to the doctrine of federal paramountcy, but rather Aboriginal laws that serve Aboriginal imperatives”(para. 540). VI. Appeals [36] The Attorney General of Quebec and the Attorney General of Canada appeal from the opinion given by the QuebecCourt of Appeal.

The Attorney General of Quebec argues that the entire Act is ultra vires Parliament because it impermissibly intrudeson certain areas of exclusive provincial jurisdiction, especially the province’s power to direct its own agencies, and because the Actrepresents an attempt to unilaterally amend the Constitution. The Attorney General of Canada counters that the Act constitutes a validexercise of Parliament’s legislative authority under s. 91(24) of the Constitution Act, 1867.

He also submits that the incorporation byreference and paramountcy provisions are not problematic because incorporation by reference is a long-accepted legislative techniqueand the paramountcy provision merely states for greater certainty what constitutional law already provides. VII. Analysis [37] There are two stages in determining the constitutional validity of a law: identifying its pith and substance and thenclassifying it by reference to the heads of power listed in ss. 91 and 92 of the Constitution Act, 1867 (Murray-Hall v.

Quebec (AttorneyGeneral), 2023 SCC 10, at para. 22, citing Reference re Genetic Non-Discrimination Act, 2020 SCC 17, [2020] 2 S.C.R. 283, atpara. 26). [38] The following analysis concerns the Act as a whole. This means that, in determining the Act’s constitutionalvalidity, we are not distinguishing between what the attorneys general have called

Part I (ss. 1 to 17, except s. 8(a)) and

Part II (ss. 8(a)and 18 to 26). Given that the question referred to the Quebec Court of Appeal did not relate to any specific provision of the Act, it istherefore the Act in its entirety that must be first characterized and then classified. A. Characterization: What Is the Pith and Substance of the Act?

(1) Analytical Framework [39] At the first stage of the analysis, which involves characterizing the law, a court identifies the purpose and effects ofthe law in order to determine its main thrust or dominant characteristic (References re Greenhouse Gas Pollution Pricing Act, 2021 SCC11 (“Greenhouse Gas References”), at para. 51, citing Desgagnés Transport Inc. v. Wärtsilä Canada Inc., 2019 SCC 58, [2019] 4 S.C.R.228, at para. 31). In looking at the purpose of the law, the court considers both intrinsic evidence, such as the law’s

preamble andprovisions, and extrinsic evidence, such as Hansard and the minutes of parliamentary committees (Greenhouse Gas References, atpara. 51, citing Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R.146, at para. 53, and Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at para. 27).

In looking at effects, the court isconcerned with legal effects, which flow directly from the provisions of the law itself, and practical effects, which are the “side” effectsflowing from the law’s application (Greenhouse Gas References, at para. 51, citing Kitkatla, at para. 54, and R. v. Morgentaler, (SCC), [1993] 3 S.C.R. 463, at p. 480). [40] While it is helpful to consider the context in which the law was enacted, the law itself must remain at the centre ofthe characterization exercise.

As Kasirer J. noted in Reference re Genetic Non-Discrimination Act, “the court’s inquiry into pith andsubstance must be anchored in the text of the impugned legislation” (para. 165). Moreover, “the pith and substance of a challengedstatute or provision should capture the law’s essential character in terms that are as precise as the law will allow” (Greenhouse GasReferences, at para. 52, citing Reference re Genetic Non-Discrimination Act, at para. 32).

(2) Pith and Substance of the Act [41] In our view, the Act protects the well-being of Indigenous children, youth and families by promoting the delivery ofculturally appropriate child and family services and, in so doing, advances the process of reconciliation with Indigenous peoples. This isthe Act’s pith and substance, which flows from the purpose and effects of this legislation.

(

a) Purpose of the Act (

i) Intrinsic Evidence [ 42 ] A law’s

preamble and purpose clauses can be considered to determine the purpose of the law in question (Greenhouse Gas References, at paras. 51 and 59). Here, s. 8 sets out the three elements of the Act ’s purpose, which the Act ’s

preamble assists in interpreting. [ 43 ] First, the Act ’s purpose is to “affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services” (s. 8(a)). The

preamble places this purpose in a broader context, stating that “Parliament affirms the right to self-determination of Indigenous peoples, including the inherent right of self-government, which includes jurisdiction in relation to child and family services”. This affirmation is repeated in the substantive provisions of the Act ( s. 18(1) ) and grounds Parliament’s recognition of the laws of Indigenous groups, communities or peoples.

To this end, the Act seeks “to achiev[e] reconciliation with First Nations, the Inuit and the Métis through renewed nation-to-nation, government-to-government and Inuit-Crown relationships based on recognition of rights, respect, cooperation and partnership” (preamble). [ 44 ] Second, the Act ’s purpose is to set out national standards for the provision of child and family services in the Indigenous context (s. 8(

b) and

preamble) in order to ensure respect for the dignity of Indigenous children. The

preamble indeed emphasizes the importance of this step, noting that “the Truth and Reconciliation Commission of Canada’s Calls to Action calls for the federal, provincial and Indigenous governments to work together with respect to the welfare of Indigenous children and calls for the enactment of federal legislation that establishes national standards for the welfare of Indigenous children”. The

preamble’s reference to call to action No. 4 suggests that Parliament’s intention with respect to the national standards was not to impose them unilaterally, without regard for the perspective of Indigenous groups, communities or peoples. Indeed, the

preamble sets out the Government of Canada’s commitment to “engaging with Indigenous peoples and provincial governments to support a comprehensive reform of child and family services that are provided in relation to Indigenous children”. The Act therefore supports the view that the intention is for the national standards to be developed collaboratively and applied across the country to “help ensure that there are no gaps in the services that are provided in relation to

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