Beyond the Constitutional Architecture:An Act respecting First Nations, Inuit and Métis children, youth and familiesat the Supreme Court of Canada

Abstract

AbstractIn December 2022, the Supreme Court of Canada heard arguments in a reference case about the constitutionality ofAn Act respecting First Nations, Inuit and Métis children, youth and families(the Act). At issue is whether the Act infringes on provincial jurisdiction and changes the constitutional architecture by giving First Nations law governing child welfare the force of federal law. In this short Currents article, we argue that the Supreme Court's consideration of the Act marks a critical juncture in the ongoing relationship between Canadian and Indigenous law. Through an examination of the arguments made before the Supreme Court, we assert that it is essential that the Court move beyond its historical commitments to protecting the Constitution and umpiring jurisdictional disputes and toward a recognition of the failures of the constitutional framework to account for an expansive understanding of inherent rights and inherent jurisdiction, including child welfare.