Indigenous Peoples in Canadian Law
Owing to Canada's complex social and constitutional history, the special legal rights of Canada's First peoples vary from one part of the country to another and in their application to different groups.
Owing to Canada's complex social and constitutional history, the special legal rights of Canada's First peoples vary from one part of the country to another and in their application to different groups. Today there are no longer special disabilities attached to Aboriginal status. Earlier rules (eg, those preventing Aboriginal people from voting or leaving their reserves without permission) have been repealed; other discriminatory laws are unlikely to be enforced (eg, the Drybones case). The one thing Aboriginal people cannot legally do is bargain away their Aboriginal rights, treaty rights or reserved lands to anyone other than the Crown in right of Canada. Generally, Aboriginal people have the same legal rights as other Canadians and may be able to claim special rights by virtue of their Aboriginal status, which is a complex issue.
Section 35 of the Constitution Act of 1982 defines "the aboriginal peoples of Canada" as the Indian, Inuit and Métis peoples. Historical and legal differences of the past, however, complicate the question of definition.
In early times people who followed the Aboriginal way of life were accepted as Aboriginal people. Not until 1850 was a bloodline requirement prescribed in Lower Canada to define who could occupy Aboriginal reserve lands. Since Confederation, federal law has created an elaborate system of status and band membership for Aboriginal people. Amendments to the Indian Act in 1985 dramatically changed these historic rules, which had been widely criticized.
The federal government determines Indian status under its own rules, which no longer exclude women marrying non-Indians. Status is neither gained nor lost through marriage, and band councils can now enact residency bylaws. The old pattern of determining status, band membership and residency rights by the same set of rules is now subject to variation across the country.
The courts have held that Parliament's power in relation to "Indians" includes legislative control over Inuit, but there is no "Inuit Act," possibly because there have not been "Inuit reserves" to regulate. Inuit status is likely to be defined legally as Land Claims are negotiated and the question of "beneficiaries" is addressed. For northern Québec Inuit this process was accomplished by an initial enrolment of beneficiaries with future additions on the basis of descent, marriage or adoption.
Métis, however, is a term of uncertain application, used variously to describe everyone of mixed Aboriginal/non-Aboriginal ancestry, or those who took land scrip rather than treaty (see Aboriginal Treaties); those entitled to Métis lands under the Manitoba Act, 1870; those registered under the Alberta Métis Betterment Act; or the francophone segment of the mixed-blood communities of the Northwest. Depending on which definition is used and through how many generations it is extended, estimates of the Métis population range from 100 000 to one million. In the constitutional discussions in 1984, federal government representatives took the position that Métis, unlike Indians and Inuit, were not under federal legislative jurisdiction. However, on 14 April 2016, the Supreme Court ruled unanimously that the legal definition of “Indian” — as laid out in the Constitution — now includes the Métis and non-status Indians. This ruling will facilitate possible negotiations over traditional land rights, access to education and health programs, and other government services.
Land Rights of Aboriginal People
Parliament also has the power to make laws in relation to "lands reserved for the Indians," and the federal government has the power to bargain with Aboriginal groups for the release of Aboriginal land rights. Under Canadian constitutional law, once such a release is given those lands are subject to the general provincial ownership of crown lands and natural resources and the federal government loses all rights to deal with such lands on behalf of the Aboriginal people. Even the clear provisions of the Indian Act dealing with federal management of surrendered Aboriginal reserve lands cannot operate unless there is a federal-provincial agreement in place concerning the status of the surrendered lands.
Such agreements have been made with Nova Scotia, New Brunswick, Ontario and British Columbia, and by the Statute of Westminster of 1931, which affects Alberta, Saskatchewan and Manitoba. There are no special arrangements with Québec, Prince Edward Island or Newfoundland and Labrador; none are required for the territories which are under federal jurisdiction.
The land rights of Aboriginal peoples are largely undefined, but they have been described as "usufructuary," referring to a Roman law right to use land owned by another; in this case it is the Aboriginal person's right to use lands technically owned by the Crown. Aboriginal people's rights to land as defined by the Indian Act are communal in nature, belonging to the group rather than the individual member, and cannot be bargained away except by the group to the Crown in right of Canada (see Reserves).
Laws of General Application
Aboriginal people are subject to the general law of the land, together with other Canadians, unless there is some Aboriginal treaty or other provision affording special protection. If a law conflicts with Aboriginal lifestyle or culture, and there is no special protection, the courts will apply that law to Aboriginal people.
Laws of general application can be provincial laws or federal statutes such as the Criminal Code or the Fisheries Act. Under s88 of the Indian Act, however, the term refers only to provincial laws. All laws are, however, subject to the constitution and s35 affords general protection of Aboriginal and treaty rights from encroachment by federal or provincial laws. Sparrow (1990) held that federal laws can regulate the exercise of these rights if any infringement can be justified for conservation or public safety reasons.
Hunting and Fishing Rights
In those areas where these harvesting rights are not assured by treaty, Aboriginal peoples can rely upon constitutional protection for their rights to hunt and fish. In the Prairie provinces, in order to consolidate treaty promises, the Constitution Act of 1930, guaranteed Aboriginal people the right to hunt and fish for food, free of provincial regulation, on unoccupied crown lands and other lands to which they have a right of access. Métis have generally failed in their attempts to claim these rights. Inuit harvesting has rarely been regulated.
It remains unclear to what extent the harvesting by Aboriginal people can be engaged in for commercial purposes. Agawa (1988) and Jones (1993) affirmed treaty rights to fish commercially while Horseman (1990) held that commercial harvesting rights in the Prairie provinces, while previously confirmed by treaty, were extinguished by the Constitution Act of 1930. The extent of Aboriginal (non-treaty) rights to harvest for sale or barter is an issue that, in 1996, is expected to be determined by the Supreme Court of Canada in a number of fishing cases on appeal from BC.
Legal Status of Aboriginal Communities
While Aboriginal rights are regarded as communal, the formal legal status even of Aboriginal bands is not clearly defined in Canadian law: bands may not be able to sue or be sued in their own names or limit financial liability for debts to communal assets. Some groups avoid this by incorporation, a legal procedure to acquire certain rights and immunities; others avoid incorporation because it entails the loss of tax exemptions relating to Indian status.
Inuit and Métis groups have incorporated political and development associations (see Aboriginal People: Political Organization and Activism) and formed co-operatives (see Inuit Co-operatives). Aboriginal bands and band councils are given limited powers under the Indian Act. One of the goals of Aboriginal self-government is to enhance and to recognize constitutionally the legal rights and powers of bands.
Customary and Cultural Practices
Canadian law has recognized certain Aboriginal traditions. One example is the early recognition courts gave to customary marriages, although without a parallel recognition of customary divorce. The Indian Act refers to "customary adoptions," without explanation, and the courts have recognized these adoptions not only in Aboriginal, but also in Inuit communities, on the basis of recognition of Indigenous customary law. Similarly, because the election provisions of the Indian Act are not mandatory, band leadership chosen by customary means can exercise the statutory powers of a chief and council. In many communities, conflicts between customary and elected councils have endured for decades; in others such disputes are proliferating as traditional elements seek to assert their ancestral authority or elected councils come to be seen as pawns of the federal government. Amendments to the Indian Act in 1985 have also given rise to cases such as Corbière (1993),where some members of an Aboriginal band, many of whom had just gained status and membership, challenged the Indian Act provisions which would deny them voting rights because they did not ordinary reside on reserve.
It is likely that the catalogue of legally recognized customary practices will increase in future. The Canadian Charter of Rights and Freedoms, for example, refers to customary language rights, and these rights may apply to Aboriginal languages.
Under the Indian Act the interest of an Aboriginal person or a band in reserve lands and the personal property of Aboriginal people or bands situated on a reserve are exempt from taxation. Complex questions have arisen in applying this provision to sales and income taxes. Williams (1992) held that income taxes are not payable by Aboriginal people if their income is sufficiently connected to a reserve to be deemed property situated on-reserve. Subsequent changes to Revenue Canada's collection procedures remain controversial. Generally, the same principles are applied in respect to goods or services otherwise subject to the GST, a federal tax. Although some provinces recognize specific exemptions for reserve residents or for on-reserve purchases by Aboriginal people, the limits of provincial powers to tax Aboriginal people are circumscribed, constitutionally, by the ascendant federal restrictions set out in the Indian Act.
There is no special exemption from customs and excise duties, notwithstanding provision in Jay’s Treaty (1794) and the Treaty of Ghent (1814) that Aboriginal people could cross the Canada-US border freely with their goods. In the Francis Case (1956) the Supreme Court of Canada held that these were not Aboriginal treaties and that, while they were international treaties, they had not been given legislative force within Canada.
Aboriginal groups can be expected to advocate extended tax exemptions in the course of constitutional and land-claims negotiations. In the 1996 agreement to settle the Nisga'a claim, however, the Aboriginal claimants agreed to limit and eventually eliminate some of their protection from provincial taxation. BC is expected to make the same demand of other claimants in the context of the treaty process in that province.
Equality Before the Law
Democratic theories of majority rule and equality before the law often give insufficient regard to minority rights, and this inherent tension has found its way into Aboriginal cases. The 1960 Canadian Bill of Rights affirmed the right to equality before the law and, in the Drybones case, the Supreme Court of Canada held that an Aboriginal person had been unfairly discriminated against on the basis of race by being convicted under an Indian Act provision that made it an offence for an Aboriginal person to be intoxicated off-reserve. The Indian Act provision, which imposed slightly heavier penalties than comparable territorial law, was struck down since it denied the accused equality before the law.
In a later case, the court did not apply the Canadian Bill of Rights. Its decision in the Lavell case (1973) was based on reasoning that if the court struck down a discriminatory membership provision of the Act, it might effectively repeal the whole statute that discriminates on the basis of race. The court's decision in Lavell was widely criticized. This potential conflict between minority rights and equality before the law is apparent in the Canadian Charter of Rights and Freedoms, where specific provision is made that none of the guarantees, including that of equality before the law, shall be construed so as to diminish Aboriginal or treaty rights under the Royal Proclamation of 1763.
Aboriginal Justice Systems
The Royal Commission on Aboriginal People (RCAP) has taken up the challenge of finding a way to reconcile many residual conflicts between Aboriginal custom and non-Aboriginal legal regimes. Particularly in the area of criminal justice, it notes in an interim report the historic discrimination Aboriginal people have suffered at the hands of an essentially European legal system, the disproportionate numbers of Aboriginal people incarcerated, and recommends the creation or recognition of Aboriginal justice systems to deal with offences and rehabilitation in culturally appropriate ways. Diversion programs and sentencing circles are used in many centres now, including urban centres.
Aboriginal groups see justice systems as an integral part of their right to self-determination. While such systems cannot be expected to deal with all disputes or to reconcile all differences, they may well prove to be the touchstone of governments' intentions to recognize and defer to Aboriginal jurisdiction over their own peoples.
On 2 October 2016, the Akwesasne band council (Mohawk) announced that it had introduced a legal system that operates outside a federal framework. It is considered to be the first Indigenous legal system of its kind in Canada. This new court law, which mixes elements of Mohawk and Canadian law, covers a variety of civil matters, including sanitation, tobacco regulations and wildlife conservation. Discussions are underway between the federal government and the governments of Ontario and Québec (the provinces Akwesanse traditional territory straddles) to draft a framework for recognizing the Akwesasne legal system.
In Thunder Bay on 9 November 2016, the Ontario Court of Justice approved the establishment of a new court — the Indigenous People’s Court — that will use Indigenous traditions in the court process to promote healing and reconciliation.
P. Cumming and N. Mickenberg, Native Rights in Canada (2nd ed, 1972); K. Lysyk, "The Unique Constitutional Position of the Canadian Indian," Canadian Bar Review 45 (1967); D. Sanders, "Indian Hunting and Fishing Rights," Saskatchewan Law Review 38 (1973-74); J.C. Smith, Regina v. Drybones and Equality before the Law, Canadian Bar Review 49 (1971); W.S. Tarnopolsky, The Canadian Bill of Rights and the Supreme Court Decisions in Lavell and Burnshine: "A Retreat from Drybones to Dicey?" Ottawa Law Review 7 (1975); RCAP, Bridging the Cultural Divide - Report on Aboriginal People and Criminal Justice in Canada (1996); R. Ross, Dancing with a Ghost (1992); J. Woodward, Native Law (1994); Frederica Wilson & Melanie Mallet, eds., Metis-Crown Relations: Rights, Identity, Jurisdiction, and Governance (2008).