Government of Canada Appealing First Nations in Quebec Court Ruling on Child Care

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

The Assembly of First Nations (AFN) announced today that it stands with First Nations in Quebec and all First Nations’ jurisdiction over child and family law. In a February 10, 2022, decision, the Quebec Court of Appeal ruling confirmed that all First Nations have a generic inherent right to self-government, including jurisdiction over child protection and family law, without the burden of proving its existence on a case-by-case basis.

The Quebec Court of Appeal of Quebec shared its ruling February 10, 2022, in response to the Quebec government’s challenge to the constitutionality of the Act, which came into force January 1, 2020.  The ruling affirmed that First Nations have an inherent right to self-government, including jurisdiction over child protection and family law.  The ruling, however, struck several provisions in the Act that allowed for First Nations child and family service laws to prevail over provincial laws in the case of conflict or inconsistency. Based on those stricken provisions, the federal government has chosen to also appeal the Quebec Court of Appeal’s ruling.

“Taking the Act to the Supreme Court presents an opportunity for the full recognition and affirmation of First Nations Inherent rights, as well as the exercise of this jurisdiction, at the highest judicial levels of Canada,” said AFN Manitoba Regional Chief Cindy Woodhouse, who leads the portfolio on child and family services for the AFN Executive Committee. “The Act is the positive result of decades of advocacy to respect First Nations systems that support the best interests of our families. The decision from the Quebec Court of Appeal affirmed the First Nations Generic Inherent Right in Child and Family Services and to make laws that are protected under section 35 of the Constitution. The province of Quebec’s challenge undermines all of that progress.”

The Government of Quebec launched the constitutional reference at the Quebec Court of Appeal in December 2019, asking the Quebec Court of Appeal to rule on the constitutionality of the Act. The AFN acted as an intervenor in the reference, arguing that the Act complies with the Constitution and in support of First Nations’ inherent and treaty rights, including jurisdiction over child and family services.