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Evidence - Intrinsic

. Reference re An Act respecting First Nations, Inuit and Métis children, youth and families

In Reference re An Act respecting First Nations, Inuit and Métis children, youth and families (SCC, 2023) the Supreme Court of Canada considers 'intrinsic evidence', here in the course of determining the pith and substance of the FNIMCYFA for assessing it's constitutional validity [under s.91(24), Constitution Act, 1867 - 'Indians, and Lands reserved for the Indians']:
(i) Intrinsic Evidence

[42] A law’s preamble and purpose clauses can be considered to determine the purpose of the law in question (Greenhouse Gas References, at paras. 51 and 59). Here, s. 8 sets out the three elements of the Act’s purpose, which the Act’s preamble assists in interpreting.

[43] First, the Act’s purpose is to “affirm the inherent right of self‑government, which includes jurisdiction in relation to child and family services” (s. 8(a)). The preamble places this purpose in a broader context, stating that “Parliament affirms the right to self‑determination of Indigenous peoples, including the inherent right of self‑government, which includes jurisdiction in relation to child and family services”. This affirmation is repeated in the substantive provisions of the Act (s. 18(1)) and grounds Parliament’s recognition of the laws of Indigenous groups, communities or peoples. To this end, the Act seeks “to achiev[e] reconciliation with First Nations, the Inuit and the Métis through renewed nation‑to‑nation, government‑to‑government and Inuit‑Crown relationships based on recognition of rights, respect, cooperation and partnership” (preamble).

[44] Second, the Act’s purpose is to set out national standards for the provision of child and family services in the Indigenous context (s. 8(b) and preamble) in order to ensure respect for the dignity of Indigenous children. The preamble indeed emphasizes the importance of this step, noting that “the Truth and Reconciliation Commission of Canada’s Calls to Action calls for the federal, provincial and Indigenous governments to work together with respect to the welfare of Indigenous children and calls for the enactment of federal legislation that establishes national standards for the welfare of Indigenous children”. The preamble’s reference to call to action No. 4 suggests that Parliament’s intention with respect to the national standards was not to impose them unilaterally, without regard for the perspective of Indigenous groups, communities or peoples. Indeed, the preamble sets out the Government of Canada’s commitment to “engaging with Indigenous peoples and provincial governments to support a comprehensive reform of child and family services that are provided in relation to Indigenous children”. The Act therefore supports the view that the intention is for the national standards to be developed collaboratively and applied across the country to “help ensure that there are no gaps in the services that are provided in relation to [Indigenous children], whether they reside on a reserve or not” (preamble).

[45] Third, the Act’s purpose is to “contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples” (s. 8(c)). Parliament chose to give particular importance to this aim by beginning the Act’s preamble with a reference to the Government of Canada’s commitment to implementing aspects of the UNDRIP. The text of the Act also suggests that Parliament intended the Act as a whole to be a concrete legislative measure to implement the UNDRIP in Canadian law.

[46] Moreover, this Court has stated that “[a] law’s title . . . is an important form of intrinsic evidence” (Reference re Genetic Non‑Discrimination Act, at para. 35; see also Greenhouse Gas References, at para. 58). In this case, the title “An Act respecting First Nations, Inuit and Métis children, youth and families” confirms that Indigenous children, youth and families are the Act’s main concern. The preamble sets out a large number of aims with respect to these persons: to “reunit[e] Indigenous children with their families and communities”, to “address [their] needs” in order to ensure that “there are no gaps in the services that are provided in relation to them”, to “eliminate [their] over‑representation . . . in child and family services systems”, and to “support [their] dignity and well‑being . . . as well as the achievement of their full potential”. These aims all reflect the Act’s fundamental purpose, which is to promote the well‑being of Indigenous children, youth and families.

[47] Taken as a whole, the intrinsic evidence suggests that the purpose of the Act is to protect the well‑being of Indigenous children, youth and families. This overarching purpose has three elements: affirming Indigenous communities’ jurisdiction in relation to child and family services; establishing national standards applicable across Canada; and implementing aspects of the UNDRIP in Canadian law. As the extrinsic evidence of Parliament’s intention makes plain, however, these three elements are interwoven.



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Last modified: 12-02-24
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