The law of First Nations
deals with issues such as:
- comprehensive
and specific land and property compensation claims;
- treaty claims
and interpretation;
- aboriginal
self-government;
- claims to
renewable and nonrenewable natural resources;
- hunting,
fishing and trapping rights;
- government
relations;
- economic
development;
- taxation;
and various public policy issues.
..
The Royal
Proclamation of October 7, 1763 has been called the Magna Carta
of Indian rights. In part, this Proclamation was intended to
end the abuse which had marked dealings with Indians.
Abuse continued.
In order to compel compliance the Quebec Act of 1774 extended
Quebec's territory to include the land between the Appalachian height
and the Mississippi River and from just south of Lake of the Woods to
the Gulf of Mexico. The American Revolution of 1776 took back
most of the extended Quebec lands.
.
Canada's formation and expansion
to the Pacific and north had a profound impact on the First Nations
people.
After the
American Revolution two new provinces were created; Ontario and New
Brunswick, to accommodate the United Empire Loyalists who were moving
out of the United States.
In 1867 four
provinces, Quebec, Ontario, New Brunswick and Nova Scotia joined to
form Canada. Canada's expansion was swift:
.
The treaty
process was implemented after 1870 to open the route west. These Treaties
are known as the numbered Treaties. Treaties One through Eleven.
Title to Indian
land was taken in return for the following:
- Reserves
of approximately one square mile per family of five;
- Continued
exercise of hunting, fishing and trapping rights;
- The promise
of schools on the Reservations. (To this day this is taken as a commitment
by the government to provide education for the children);
- The promise
of a medicine chest. (This has been construed by the Courts to be a
promise of health services);
Abuses continued.
The promise of reserve lands was in a number of instances not fulfilled.
Reserve lands were coveted and large areas were carved out from them,
sometimes with consent and other times unilaterally and without compensation.
Railways expropriated reserve lands freely, sometimes on speculation.
First Nations
argue for an interpretation based on the "spirit and intent"
of the treaties. The provinces and the federal government say the interpretation
should be based on the express wording of the Treaty documents.
After the Constitution
Act, 1982 was in place and in particular section 35, the Court
came to the conclusion that overly strict interpretation of the treaties
would lead to continued injustice. The decisions re: Nowegijick v.
The Queen (1983) and re: Simon v. The Queen (1985) resulted
in the court adopting the follow rule of construction:
"treaties
and statutes dealing with Indians should be given a fair, large and
liberal construction and doubtful expressions resolved in favour of
the Indians, in the sense in which they would be naturally understood
by the Indians."
Subsequent
decisions have eroded that rule. In re: Mitchell v. Peguis Indian Band
(1990) the majority of the court observed that, in interpretation
statutes, the intention of Parliament is the determining factor, not the
views of Indians whose rights might be affected. Regarding Treaties the
court held that the rule does not apply in circumstances where Indians
are educated and urbanized re: Howard v. The Queen (1994).
.
The
Constitution Act - 1982, reinforces aboriginal rights in section
35
PART
II
RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA
35. (1) The
existing aboriginal and treaty rights of the aboriginal peoples of Canada
are hereby recognized and affirmed.
(2) In this
Act, "aboriginal peoples of Canada" includes the Indian, Inuit,
and Metis peoples of Canada.
(3) For greater
certainty, in subsection (1) "treaty rights" includes rights
that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding
any other provision of this Act, the aboriginal and treaty rights referred
to in subsection (1) are guaranteed equally to male and female persons.(17)
35.1 The
government of Canada and the provincial governments are committed to
the principal that, before any amendment is made to Class 24 of section
91 of the "Constitution Act, 1867", to section 25 of this
Act or to this Part,
(a) a constitutional
conference that includes in its agenda an item relating to the proposed
amendment, composed of the Prime Minister of Canada and the first ministers
of the provinces, will be convened by the Prime Minister of Canada;
and
(b) the Prime Minister of Canada will invite representatives of the
aboriginal peoples of Canada to participate in the discussions on that
item.(18)
Re: Sparrow
v. The Queen (1990)
This case dealt with section 35. (1) of the Constitution Act,
1982 which states:
"The
existing aboriginal and treaty rights of the aboriginal peoples of Canada
are hereby recognized and affirmed."
At issue was
an Aboriginal right to fish salmon with a gill net for food, social and
ceremonial purposes. The appellant, Mr. Sparrow, was a member of the Musqueam
Band. He was charged with exceeding the net length restriction imposed
on the Band's Food Fishing License pursuant to the British Columbia (General)
Fishery Regulations enacted pursuant to the federal Fisheries Act.
The Court ruled
that Sparrow had been exercising a protected aboriginal right to fish
for food in traditional fishing waters of his Nation. That right had been
progressively regulated over the years, but regulation alone did not extinguish
the right, which continued to "exist" though subject to regulation
prior to 1982. The Court ruled that regulation of a right does not extinguish
it.
.
- Non Indians
cannot live or otherwise use or occupy Indian reserve accept for some
special exceptions.
- Reserve
land are not subject to seizure under legal process.
- Employment
income earned on the reserve is not subject to income taxes if the employee
is an Indian.
- Personal
property on reserve is exempt from provincial sales tax and GST. e.g.
Cars, furniture, take out food.
.
Governments
and Aboriginals have been seriously dealing with claim for about 25 years.
The process continues.
Aboriginal
Land Claims
.
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Canadian Aboriginal Law,
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