Reference Re an Act respecting First Nations, Inuit and Métis Children Youth and Families 2024 SCC 5

What does the Supreme Court decision mean for Métis government and citizens in Saskatchewan?

Recently, the Supreme Court of Canada released its decision in [Translated] Reference Re an Act respecting First Nations, Inuit and Métis Children Youth and Families 2024 SCC 5 (“the Decision”). The Court was tasked with answering the question: “is the Act respecting First Nations, Inuit and Métis children, Youth and Families (the “Act”) ultra vires (beyond the power of) the jurisdiction of the Parliament of Canada under the Constitution of Canada?

Departing from the conclusion of the Quebec Court of Appeal, which held that the reference question was constitutional, except for ss. 21 and 22(3), which were not, the Supreme Court concluded that the Act as a whole fall within Parliament’s exclusive legislative authority for First Nations, Inuit and Métis under section 91(24) of the Constitution Act, 1867.

Further, the Court found that the Act codified Parliament’s affirmation that section 35 of the Constitution Act, 1982 includes a right of self-government in relation to child, youth and family services setting out Parliament’s understanding of specific section 35 rights. While the affirmations are not final determinations on the scope of section 35, they do have legal effect and bind the Crown’s future conduct. The Crown can no longer deny the existence of this right.

What does that mean for Canada?

The outcome of the Decision is an affirmation of what Canada committed to in 2016 when its government made a commitment internationally to support and implement the United Nations Declaration on the Rights of Indigenous People (“UNDRIP”) “without qualification”. The Court provided its most substantive discussion on UNDRIP to date, which bodes well for future judicial consideration of UNDRIP to inform the interpretation of section 35 and the implementation of its Articles.

The Court strongly endorsed the Act as a form of “legislative reconciliation”, referring to how the Act weaves the affirmation of inherent rights, mechanisms for the exercise of FIRST Nations, Inuit and Métis legislative authority, federal minimum national standards, and international minimum standards together. Importantly, the Decision also identified the Act does not purport to be the source of these rights but proceeds on the premise that these rights exist independently.

What does the Decision mean for the Métis Nation-Saskatchewan (“MN-S”)?

Saskatchewan will be impacted largely the same as every province or territory in the country. The federal government has recognized the MN-S as the Indigenous Governing Body (“IGB”) for the purposes of the Act for Saskatchewan. MN-S and its citizens will determine what their child welfare law, governance structure, policy and service systems will be – including how they will be developed and implemented. This includes what the pace, scope, and implementation of services will be over time.

In sum, the Decision will assist in providing agency to Indigenous, Inuit, and Métis people to control Child and Family Services for their communities. For Saskatchewan, MN-S assumes jurisdiction over their registered citizens and may seek to expand their role into other areas of justice in the future.