Bill C-92 Reference: Government Of Canada Can Affirm Indigenous Rights, But The Courts Determine Whether They Exist

On February 9, 2024, the Supreme Court of Canada ("SCC") upheld the constitutionality of the federal government's legislation, An Act respecting First Nations, Inuit and Métis children, youth and families (2024 SCC 5) (the "Act"). This Act, also referred to as "Bill C-92", was developed jointly with First Nations, Métis and Inuit, as part of the federal government's implementation of the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP").

The SCC found the Act falls within Canada's jurisdiction over "Indians, and Land reserved for the Indians" under section 91(24) of the Constitution Act, 1867. The Court also confirmed Parliament's right to recognize and affirm in legislation, Indigenous rights to self-government over children and family welfare. However, the SCC was clear that Parliament's legislative affirmation does not mean these rights are constitutionally-protected.