As mentioned, my name is Dwight Newman. I'm a Professor of Law and Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan. I have done writing on various topics in indigenous rights law. I also write on general constitutional law topics. With regard to the latter writing, I'm an author of the Halsbury's Laws of Canada volume on the Charter of Rights, and along with Ottawa practitioner Guy Régimbald, a co-author of a thousand-page constitutional treatise, The Law of the Canadian Constitution, published by LexisNexis and now in its second edition.
Although we're discussing a bill profoundly important to addressing ongoing harms against indigenous children and indigenous communities, my comments today will be on more general constitutional considerations related to the bill. In short, I think that there are some issues with the constitutionality of significant parts of the bill and that the committee should be adducing further evidence on these matters and quite possibly amending parts of the bill.
While the minister tabled the now standard charter statement on the bill in the House of Commons on April 29, there are constitutional considerations going beyond the charter that deserve further attention here, obviously in addition to the section 35 issues. In particular, the bill involves an extremely muscular assertion of federal jurisdiction in areas that have traditionally been under provincial jurisdiction. In my view, it appears to do so in ways that go beyond the scope of federal jurisdiction, at least in parts of the bill.
Let me be clear from the outset. Everyone knows that jurisdictional quagmires have been problematic in getting to good ways forward in this area, and we need to find ways past those. The references by earlier witnesses to the jurisdictional hot potatoes are a horrible Canadian legacy. We could talk about the horrible funding disputes that gave rise to the need for Jordan's principle and that give rise to ongoing problems. There's every reason why the division of powers between the federal and provincial governments isn't necessarily what people want to think about when trying to come up with solutions, other than to find ways past that.
At the same time, federal legislation still can't unilaterally operate in ways that set out to legislate in areas of provincial jurisdiction. The Supreme Court of Canada has identified federalism as one of the four key constitutional principles defining the structure of the Canadian constitution. Canada is a federation, not a unitary state, and it's vital to maintain respect for federalism pursuant to the established powers in the constitution.
Clause 7 of the bill sets matters off on a problematic track, stating:
7 This Act is binding on Her Majesty in right of Canada or of a province.
From the outset, we see a claim to legislate concerning the activities of the executive arms of the provincial governments that's inconsistent with the principles of federalism.
I feel like I'm offering an 8:30 a.m. division of powers seminar there and a 6:30 a.m. division of powers seminar here via video, which is not a popular option with students or with anyone else, but I want to quickly set out the pertinent claims to jurisdiction as they apply to the rest of the bill. Under the section 92 powers in the Constitution Act, 1867, the provinces, in 92(13) and 92(16), have wide powers over matters of private law and matters of local concern that have always grounded, in general, a provincial jurisdiction to deal with child welfare matters.
That was extended to on-reserve jurisdiction, the application of provincial jurisdiction on reserve, by section 88 of the federal government's Indian Act, which gives power for provincial legislative provisions to apply even on reserve.
The federal government has in 91(24) of the Constitution Act, 1867 a power—which I emphasize is in the language of 1867 and which I always put it in quotes—over “Indians, and Lands reserved for the Indians”. Subsequent case law has made clear that this power extends in relation to fundamental governmental relationships with all aboriginal peoples of Canada—first nations, Métis and Inuit—as in section 35 of the Constitution Act, 1982.
One challenging dimension is that 91(24) and the scope of federal power haven't been well defined in case law in general, leave aside the child welfare context. The case law has seen 91(24) invoked more to say what provinces can't do than what the federal government can.
There are real questions on how far 91(24) extends, but it has to be understood in the context of the rest of the powers in sections 91 and 92. The scope of the federal 91(24) power would, in my view, certainly extend to matters of governmental relations with indigenous governing authorities. I would see it as having lots of potential to support provisions in the bill, like clauses 20 through 24, that essentially recognize the legal power of indigenous groups, communities, governments and governing authorities.
Even there, though, I might flag subclause 22(3) as warranting some discussion on whether the federal government can cause every law of an indigenous group to prevail over provincial law in every instance. It's one of these paramountcy or conflict clauses, and I agree entirely with the point made earlier that there needs to be certainty in the law. The context is the front-line social worker, who needs to know what the law is, obviously. There needs to be a law that fits with the division of powers, and I think there may be some issues with subclause 22(3).
Even more significantly, clauses 10 through 17 give rise to some significant questions on divisions of power. As set out in the bill in its present form, they would seem to be framed in a way that applies to even provincial child welfare decisions off reserve and outside of the scope of any indigenous governing authority, as soon as an indigenous child is involved. They simply regulate concerning every indigenous child in more far-reaching ways.
They contain many good principles. The spirit and aims of the bill are all very important, but there are serious questions on whether the federal government has the constitutional authority to unilaterally enact some of these parts of the bill.
If the bill continues in something like its present form, I would recommend amending clause 7 to make it binding on only the federal Crown, and I would recommend further review of questions on divisions of powers with regard to clauses 10 through 17, as well as subclause 22(3). There may be others, but those are some that I would highlight.
I would suggest seeking further advice from Justice Canada on these matters while subjecting their views to critical scrutiny to see if there's a solid 91(24) basis for these provisions.
I would, quite possibly, recommend amending the application of clauses 10 through 17 to be triggered by agreement with each province. I would hope there would be goodwill with the provinces to develop good implementation here. If there is a division of powers issue there, the unilateral assertion of federal jurisdiction isn't going to further co-operation with the provinces, and it may subject the bill to ongoing constitutional challenges that could mire the bill rather than moving it forward in supporting the futures of indigenous children and in supporting reconciliation.
There are tough matters here. Unfortunately, there aren't easy answers and there aren't easy ways forward, but those would be a few reflections on some things to think about further in the bill, along with the excellent comments that we heard from other witnesses this morning.