Attorney General of Québec, et al. v. Attorney General of Canada, et al.
(Quebec) (Civil) (As of Right)
Constitutional law - Division of powers, Aboriginal peoples (s. 35), Aboriginal rights, Self-government - Constitutional law — Division of powers — Pith and substance — Aboriginal peoples — Aboriginal rights — Self government — Child and family services — Whether An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24, is ultra vires Parliament of Canada under Constitution of Canada — Constitution Act, 1867, s. 91(24) — Constitution Act, 1982, s. 35.
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By Order in Council 1288 2019 of December 18, 2019, the Quebec government submitted the following question to the Quebec Court of Appeal:
Is An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24, ultra vires the Parliament of Canada under the Constitution of Canada?
The Court of Appeal answered that the Act, which came into force on January 1, 2020, is constitutional, except for ss. 21 and 22(3), which are not. It found that the pith and substance of the Act is to ensure the well being of Indigenous children by fostering culturally appropriate services that will reduce their over representation in provincial child welfare systems. The well being of Indigenous persons is part of the essence of the federal head of power set out in s. 91(24) of the Constitution Act, 1867, and the national principles stated in general terms in the Act are compatible with Quebec’s child welfare legislation. The Court of Appeal also held that the right of self government in relation to child and family services falls within s. 35 of the Constitution Act, 1982. Examining the framework established by the Act for circumscribing the exercise of this generic Aboriginal right, the court found that the aim of s. 21 is to make the doctrine of federal paramountcy applicable to Indigenous laws. Because this alters the fundamental architecture of the Constitution, s. 21 is ultra vires. The same is true of s. 22(3), which provides that Indigenous laws prevail over any conflicting or inconsistent provisions of provincial legislation. Section 91(24) of the Constitution Act, 1867 does not authorize Parliament to give absolute priority to an Aboriginal right.
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