Tansi Nîtôtemtik,
This month, the blog is discussing efforts to revitalize Indigenous laws and jurisdiction. These efforts were buoyed in 2020 when Canada brought into law Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families (the “Act”).[1] The Act is the first piece of federal legislation to recognize that Indigenous groups, communities, or peoples have the inherent right of self-government, including legislative authority in relation to child and family services, protected under section 35 of the Constitution Act, 1982.[2] Later this year, the Supreme Court of Canada (the “SCC”) will decide if this law is constitutional.[3]
In today’s blog, we examine some arguments in Alberta’s intervenor factum to the SCC on Bill C-92 and discuss how they are not in keeping with the Truth and Reconciliation Commission’s (TRC) Calls to Action.
TRC Call to Action #47 calls on provincial governments “to repudiate concepts used to justify European sovereignty over Indigenous peoples and lands, such as the Doctrine of Discovery and terra nullius, and to reform those laws, government policies, and litigation strategies that continue to rely on such concepts.”[4]
Photo Credit: https://www.firstpeopleslaw.com/public-education/blog/indigenous-jurisdiction-and-bill-c-92-at-the-supreme-court-of-canada
The importance of the TRC’s position can be seen in a recent British Columbia Supreme Court decision. In Saik’uz,[5] Justice Kent aptly noted that Canadian jurisprudence has a long history of endorsing the doctrine of discovery and terra nullius, including the SCC decision in Van der Peet.[6] Despite the SCC finding in Tsilhqot’in[7] that the doctrine of terra nullius is “legally invalid” and has never applied in Canada, Justice Kent concludes the SCC has yet to provide a convincing legal rationale for why the Crown’s unilateral assertion of sovereignty over Indigenous people and lands is justified in law.[8] He goes on to suggest the Crown’s assertion of sovereignty is little more than a “legal fiction” meant to justify the de facto seizure and control of land and resources formerly owned by Indigenous people.[9]
In its own lower court reference decision on the Act, the Quebec Court of Appeal (QCCA) dispensed with the Van der Peet test for Aboriginal rights when it recognized that section 35 contains a generic, universal right of self-government over child and family services.[10] The QCCA justified its finding on the basis that Indigenous people have always maintained a form of self-government that flows from their original sovereignty over territory and not the sovereignty of the Crown.[11] Further, that the right of self-government over child and family services is an Aboriginal right under section 35, given how intimately tied it is to the cultural continuity and survival of Indigenous peoples.[12]
Photo Credit: https://www.firstpeopleslaw.com/public-education/blog/indigenous-jurisdiction-and-bill-c-92-at-the-supreme-court-of-canada
Alberta’s intervenor factum to the SCC opposing the Act argues that the federal government cannot unilaterally affirm an inherent right of self-government in section 35.[13] Similarly, it argues the QCCA erred in failing to apply the Van der Peet test and that Canada’s jurisprudence on Aboriginal rights precludes finding a “generic” right to self-government.[14]
Alberta’s factum argues that recognition of section 35 rights must come through negotiated agreements with the Crown or at trial.[15] Trials must occur “in the context of a specific claimant community, with an examination of whether the right claimed is a [pre-European contact] practice, custom or tradition that is integral to that distinctive society” - in strict compliance with the test for Aboriginal rights in Van der Peet.[16] Alberta argues that, otherwise, rights recognition would be divorced from previous SCC jurisprudence and “decisions may be ill-considered and cause unintended mischief …”[17]
Taken to its logical conclusion, Alberta’s approach would preclude any government or court from finding a constitutionally protected “generic right” of self-government over child and family services under section 35. Instead, each community or group in Canada, conceivably numbering in the hundreds or thousands (there are 45 recognized First Nations in Alberta alone), would need to spend vast amounts of time and millions of dollars making out a claim to self-government over child welfare. It could end up imposing a high evidentiary threshold on Indigenous groups who have had their cultural, legal and political institutions decimated by colonialism, residential schools, and ongoing cultural genocide – making pre-contact evidence gathering difficult.
Requiring each community or group to go through the Van der Peet test forces upon them the indignity of complying with a test that is rooted in the racist doctrine of discovery and terra nullius,[18] something the TRC asks provinces to avoid. This, in an age where many believe that Indigenous communities have a human right to self-government under international law.[19]
It is respectfully submitted here that a litigation strategy more in line with the TRC’s call to action #47 would involve Alberta taking a “wait and see” approach. Instead of standing as a barrier to self-government and human rights, Alberta could choose to challenge Indigenous laws it believes are not in the best interest of the child or cause “unintended mischief.” This would allow Alberta to challenge groups who may not be legitimate rights holders or who pass laws that are otherwise unconstitutional or illegal (for now). In this way, the human and Aboriginal rights of Indigenous communities would be further advanced, while Alberta’s duties to advance reconciliation, protect children, and uphold the constitution remain intact.
Until next time,
The Reconcili-ACTION YEG Team
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[1] An Act respecting First Nations, Inuit and Métis Children, youth and families, SC 2019, c.24 [Act].
[2] Ibid at s 18(1); Constitution Act, 1982, being Schedule B to the Canada Act 1982, (U.K.), 1982, c.11 [Constitution Act, 1982].
[3] Olivia Stefanovich, “2023 will be a pivotal year for Indigenous child welfare on both sides of the border”, CBC (2 January 2023), online: <www.cbc.ca> [https://perma.cc/29MC-ZEA5].
[4] Truth and Reconciliation Commission of Canada, “Truth and Reconciliation Commission of Canada: Calls to Action” (2015) at 5, online(pdf): National Centre for Truth and Reconciliation <www.nctr.ca> [https://perma.cc/K38W-UGKZ] [TRC].
[5] Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc., 2022 BCSC 15 at para 193 [Saik’uz].
[6] R v Van der Peet, 1996 CanLII 216 (SCC), [1996] 2 SCR 507 at paras 35-36 [Van der Peet].
[7] Tsilhqot’in Nation v British Columbia, 2014 SCC 44 at para 69 [Tsilhqot’in].
[8] Saik’uz, supra note 5 at paras 190, 197.
[9] Ibid at paras 190, 194-204.
[10] Renvoi à la Cour d’appel du Québec relative à la Loi concernant les enfants, les jeune et les famille des Premières Nations, des Inuit et des Métis, 2022 QCCA 185 at paras 49-58 [Ref Re Loi des Jeune]; See also Reference re Renvoi à la Cour d’appel du Québec relative à la Loi concernant les enfants, les jeune et les famille des Premières Nations, des Inuit et des Métis, 2022 QCCA 185 (Factum of the Intervenor, Government of Alberta, at paras 3, 5, 11-15), online (pdf): Supreme Court of Canada <www.scc-csc.ca> [https://perma.cc/LMZ6-7JTA] [Factum].
[11] Ref Re Loi des Jeune, supra note 10 at paras 49 - 58.
[12] Ibid at paras 58 - 59.
[13] Factum, supra note 10 at para 3.
[14] Ibid at paras 4, 11-16.
[15] Ibid at paras 5, 7, 8.
[16] Ibid at paras 5, 7, 8, 11.
[17] Ibid at paras 8, 12.
[18] See Larry Chartrand, “The Story in Aboriginal Law and Aboriginal Law in the Story: A Metis Professor’s Journey”, (2010) 50 Supreme Court Law Review 89; see also Larry Chartrand, “We Rise Again:” Métis Traditional Governance and the Claim to Métis Self-Government, in Yale Belanger ed., Aboriginal Self-Government in Canada, 3rd ed. (Saskatoon: Purich Publishing, 2008) at 146.
[19] See Indigenous Bar Association, Brenda Gunn, “Understanding and Implementing the UNDRIP: An Introductory Handbook” (2011), online (pdf): Indigenous Bar Association <indigenousbar.ca> [https://perma.cc/M3PV-U2MC].
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