Thank you for the opportunity to speak to this particular issue.
With respect, I do not share the concerns of Professor Newman on this issue whatsoever. I think what he's primarily focused on is the fact that the federal government is purporting to create some national standards that would be paramount over provincial laws. The question is this: Can the federal government, on a matter of constitutional jurisdiction under 91(24), pass laws with respect to indigenous child welfare?
There are certainly places where the feds have already legislated over areas that were often viewed, maybe historically, as provincial. There are provisions on wills and estates in the Indian Act that tend to be viewed as provincial. There have been provisions on education. They tend to be viewed as provincial. Family disputes on reserve have also been viewed as provincial.
The way 91(24) is structured, it says “Indians” as one area and “Lands reserved for the Indians”. “Lands reserved for the Indians” refers to the territorial on-reserve Indian lands, and we can get into broader areas of land. However, we still have the jurisdiction over Indians, and that is not bounded by territoriality and that has to be kept in mind. Professor Peter Hogg has written about this.
The jurisdiction over Indians, first of all, has been found in the 2016 Daniels case to extend not just to Indians as well as to Inuit found in the Re Eskimos case of 1939. It also extends to non-status Indians and Métis, who certainly live off reserve, so it's not just that the jurisdiction doesn't extend that far.
Now to the question of whether jurisdiction can extend to areas classically viewed as provincial, Peter Hogg's argument is that “Of course it does. Why would we have 91(24) without it?” If the federal government could otherwise pass laws that overlap with provincial areas under its other jurisdictional power, it wouldn't need 91(24). That's why 91(24) is there. It allows the federal government to pass specific laws that ameliorate or are specific to the situation of indigenous peoples. There is clear jurisdiction or authority on that, at least from one of the foremost constitutional lawyers.
Sébastien Grammond, who produced a paper arguing for legislation in this area, also agrees with Professor Hogg. You can also go look at his writing, which shows that there is no problem with the federal government producing national standards. There is such a need for them.
The last point on this is that it's kind of ironic, given the history of jurisdictional neglect, that the provinces are not clamouring for jurisdiction in this area. They have never wanted it. They want you to have it. They don't want it. They have never wanted it. I don't think that you really have a massive risk of the provincial governments beating down your door, saying, “How dare you take indigenous child welfare jurisdiction away from us?”
