An Act respecting First Nations, Inuit and Métis children, youth and families is constitutionally valid in its entirety.[1]
In 2019, federal Parliament adopted the Act, then referred to commonly as “Bill C-92” to address the overrepresentation of Indigenous youth in child and family services, advance reconciliation with Indigenous peoples, and practically implement Canada’s adoption of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”). The Act itself has two main elements. First, the Act creates national standards for the culturally appropriate provision of any child and family service in relation to Indigenous children. Particularly, the Act provides that primary consideration must be given to the child’s best interest and the child’s cultural ties. Moreover, child and family services provided in relation to an Indigenous child must be guided by Indigenous cultural continuity, and a mandatory order of priority to preserve cultural ties is established for the placement of Indigenous children.
Second, the Act recognizes and affirms an “inherent right of [Indigenous] self-government”. The Act further recognizes and affirms that this right is entrenched in section 35 of theConstitution Act, 1982and that it includes Indigenous jurisdiction in relation to child and family services. The Act then provides a framework for the exercise of this jurisdiction and allows Indigenous governing bodies to make and amend their own legislation with respect to child and family services. Where this right is exercised (through an Indigenous governing body), the Act states that the Indigenous legislation prevails over any conflicting or inconsistent federal or provincial law (except theCanadian Human Rights Actand sections 10 to 15 of the Act), and has the force of federal law.