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:
- 1868 - Rupert's Land was purchased and added to Canada;
- 1870 - Manitoba was carved out of a portion of Rupert's Land;
- 1871 - There was union with British Columbia on the promise to expedite the completion of the cross Canada railway;
- 1873 - Prince Edward Island joined Confederation;
- 1880 - Manitoba acquired more territory from Northwest Territories;
- 1886 - Islands and territories adjacent to Rupert's Land were added;
- 1898 - Yukon Territory formed out of Northwest Territories;
- 1905 - Alberta and Saskatchewan became provinces;
- 1912 - Manitoba, Ontario and Quebec acquired territory from Northwest Territories to form their present boundaries;
- 1949 - Newfoundland, which includes Labrador, joined Confederation;
- 1999 - Nunavut was formed out of the eastern part of Northwest Territories.
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
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)
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.