Transcript
Speaker: Hello and welcome to today's episode of Red Eye. I'm Jane Williams. In this episode, Laurentianism speaks with lawyer Bruce McIver about the troubling colonial legal principle behind the Supreme Court ruling on the Trudeau government's indigenous child welfare law.
Speaker: Indigenous children are dramatically overrepresented in child welfare cases, 17 times more than non -Indigenous kids. This month, the Supreme Court of Canada dismissed a challenge by the province of Quebec to the Canadian government's Indigenous child welfare law. This decision reverses a Quebec Court of Appeal decision to declare the 2019 federal law partly unconstitutional.
Speaker: The Canadian law gives First Nations, Métis, and Inuit governments some authority over child welfare for their communities and the current decision was widely celebrated by First Nations, Inuit, and Métis leaders.
Speaker: Yet the court's decision also has a troubling assumption at its core, according to lawyer Bruce McIver. He says the decision is grounded in a longstanding colonial legal principle. Bruce McIver is a member of the Manitoba Métis Federation and is a founding partner at First Peoples Law. He's the author of Standoff, Why Reconciliation Fails Indigenous People and How to Fix It. Hello, Bruce.
Speaker: Good afternoon. This is a complicated issue and I really appreciate you joining us to help understand its impact. Well, thanks for inviting me on the show. It is really important to talk about the effect of the decision and also what the underlying principles are.
Speaker: Well, can we start with the federal legislation itself, Bill C -92, an act respecting First Nations, Métis, and Inuit children, youth, and families, and how it's intended to benefit Indigenous children and communities?
Speaker: Sure, it goes some way to address the historic and ongoing wrong that's done to Indigenous people when they aren't able to apply their own laws to safeguard their children's welfare.
Speaker: The purpose of the Act is to provide a space for Indigenous people to draft their own laws around child welfare, family laws, and then to apply them to protect their children and ensure they're safe. This is to address a very serious
Speaker: ongoing wrong that's been done to indigenous people where other people's laws, federal or provincial, would apply and that would end up in serious, serious harms being done to indigenous people. So the purpose of the act is to recognize indigenous people have a self -government right to pass laws applying to their children
Speaker: and their children's welfare and to allow them a space to do that. Now, before we dive into what's troublesome about this decision, let's look at the positive. You say it is a significant victory in terms of its practical effect. What impact could it have there? So what it allows Indigenous people to do is exercise their own laws. They know best how to take care of their children.
Speaker: And so they'll be able to write, pass, and then enforce, this is really important, enforce their laws around children's welfare. So that's a very important step forward. Instead of a remote colonial government, federal or provincial writing laws that affect
Speaker: indigenous children. Instead, indigenous peoples themselves will be able to enforce their own laws to protect their children. What does it mean when the court says that indigenous laws could apply as if the federal government had written them? So this really goes to the nub of the issue. We operate in Canada rule of law.
Speaker: The question is whose laws? And the status quo in Canada for a very long time has been those would be laws written either by the provincial or federal governments. So under the Constitution lays out which of those levels of government, federal or provincial, can pass laws about different subjects.
Speaker: And that's the status quo. That's the way most lawyers are usually and still taught, I think, how the law works. All laws need to be traced back to somewhere in the Constitution. And is it a federal?
Speaker: authority to pass and enforce that law, or is it a provincial authority to pass and enforce that law? So the issue here is, what about indigenous people and their own laws? They had laws long before the colonizers showed up.
Speaker: laws before Captain Cook sailed into Nutka Sound, they still have those laws. They still have, in principle, the right to exercise those laws. So the question here was, how do you put them to effect? And the Quebec Court of Appeals said, it looks like Canada is trying to put them to effect by changing the constitution.
Speaker: by saying that there's a self -government right under Section 35 of the Constitution. And what the Supreme Court said importantly was, no, it's not changing the Constitution. What it is, it's the federal government saying, we're going to enforce these laws written by indigenous people as if they were a federal law.
Speaker: So they will go into effect as if the federal government had written it itself. So they get exercised not because of indigenous people's own inherent lawmaking authority. Instead, the Supreme Court said they will be enforced based on the federal government's lawmaking authority.
Speaker: Well, let's move to your concern over the principles at the heart of the Supreme Court's reasoning. What is the problem you see with their reasoning? I mean, it seems like what they're saying is sort of at the pleasure of the federal government, we will apply these laws as opposed to this is an inherent indigenous right. Have I got that by the right? That's not what the court says, but that is a fair characterization.
Speaker: that this is being done, one way to describe it, through the benevolence of the federal government. And the federal government, this federal government, this parliament has chosen to exercise lawmaking authority to do it. That could always change.
Speaker: A new parliament could amend that legislation. A new parliament could repeal that legislation. So it is being done based on the federal government allowing it to occur. What indigenous people argued at the Supreme Court was that they have their own lawmaking authority separate from the federal and provincial governments.
Speaker: And these laws should be enforced based on that inherent lawmaking authority. The Supreme Court said, that may be the case, but we aren't deciding that now. We don't have to decide that. It's important that the federal government recognizes that you have this self -government lawmaking authority.
Speaker: But worry as the Supreme Court or the final arbiters of that question, we might decide it at a future instance. Right now, it's fine for your laws to be exercised through the powers of the federal government. But as you say, that doesn't give a stable, inherent right to Indigenous people.
Speaker: Yeah, so there's two main concerns that I have. Well, maybe three. Why I wrote the piece that you're referring to is that I saw a lot out in the media, I thought misrepresenting what the decision was about. The practical effect is hugely important.
Speaker: But I think the legal principles are also important. And so I wrote the piece you're referring to because I thought it was important to tell people that the Supreme Court is not recognizing inherent right to self -government as a constitutionally protected right.
Speaker: That's not what they did. So that's important. Instead, it's exercised through the federal government. Second, and really, I think, upsetting for me personally as a father and with Métis children, is that the reasoning the court gave was that the federal government has had since the
Speaker: Constitution Act, 1867, they've had the legal authority to make laws about the very essence of being an indigenous person, laws that go to the very core of being indigenous. And child and family laws are at that core, and the federal government has the power to legislate.
Speaker: That's the same power that the federal government's used to oppress indigenous people. That's the same lawmaking power that the federal government has used to force indigenous kids to go to residential schools. That's the same power they have used in the past to ban the potlatch, to ban the Sundance, and go on and on and on. It's that same power.
Speaker: And so it's really upsetting for me as a father thinking about this and that how the Supreme Court is confirming the federal government's authority to make laws over my children as Métis children. And so I think the practical effect is positive. I think the principle is very concerning.
Speaker: Bruce, if both provincial governments and the federal government were both working towards true reconciliation on this issue of indigenous children's welfare, what could we imagine that to look like? The law that indigenous people might pass may end up being the same, but it's a fundamental question about
Speaker: what is the authority based on? And I think if we were moving to real recognition, we'd start with the recognition of the inherent right of Indigenous people to make their own laws. The inherent right to make those laws and for them to be enforced. Instead,
Speaker: This decision from last week perpetuates the fundamental lie that's at the corner of so much of Canadian society, and that's the doctrine of discovery, because it rests on this lie that colonizers can show up and displace indigenous people's lawmaking authority.
Speaker: Instead, all lawmaking authority rests in the hands of the colonizers, either the federal or provincial governments, the hands of the crown. And until the court governments find a way to move beyond that, I think we're still going to be wrestling with that fundamental injustice
Speaker: And at a practical level, this decision and the federal government's legislation goes a significant way to address it. But unfortunately, the Supreme Court didn't take that further and didn't confirm that these laws can apply on their own that they don't have to rely on the federal government.
Speaker: I really, really appreciate the way that you've kind of explained this and the clarity that you've brought to it, at least for me. Thank you. Thank you. It's great talking with you today. Same. Bye.
Speaker: I've been speaking with Bruce McIver. He is a member of the Manitoba Métis Federation and a founding partner at First Peoples Law. He writes Indigenous Law in one minute and blogs at firstpeopleslaw .com. He's the author of Standoff, Why Reconciliation Fails Indigenous People and How to Fix It. You can find an interview with Bruce about his excellent book on our podcast.
Speaker: The Red Eye Collective is based in Vancouver. You can check us out at coopradio .org slash redeye.
