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WET 219 - Applied Water Law - Indigenous Rights

Pre-Confederation

Historic Treaties

Historic Treaties are those treaties signed by First Nations and British and Canadian governments between 1701 and 1923.  The early treaties' objective was to reduce the possibility of conflict, facilitate Settler immigration into the Traditional Territories of First Nations which ultimately lead to indigenous people being forced from their traditional territory. 

Notable Treaties include the Peace and Friendship Treaties, the Douglas Treaties, and the Numbered Treaties.

Laws and Acts of Parliament

The British parliament issued the Royal Proclamation during the reign of George III in 1763. It formally ceded North America to Britain from France. The Proclamation, forbidden from settling on Indigenous lands, and settler officials were forbidden to grant lands without royal approval. It further stated that Indigenous lands could only be ceded to the Crown and could not be sold to the settlers. The Proclamation is significant in law and has been referenced by the Supreme Court of Canada.

Gradual Civilization Act, 1857

In 1957, the pre-confederation Parliament of the Province of Canada enacted the Gradual Civilization Act. It's intent to assimilate indigenous people into Settler society and have them become loyal British subjects. 

Did 1st Nations Really Cede Their Traditional Territory to the Crown?

Between 1760 and 1923, the British Crown signed 56 land treaties with 1st Nations.  There is an emerging body of knowledge that most, if not all of these treaties, were negotiated in bad faith, and involved European legal concepts that were not properly understood by the 1st Nations people.   

Typically the treaties were negotiated over the course of just a few days, in English, with interpreters translating the discussions into 1st Nations languages; often these interpreters skills were not up to the task.  Because 1st Nations Chiefs generally could not read English and were not allowed to retain the services of people to assist them in the process, the outcomes of such negotiations allows seemed to favor the Crown. Furthermore, oral tradition, maintained by 1st Nations elders, has shown that discrepancies between the treaty texts and the verbal content of negotiations differ substantially.

Recommended Read

Confederation - British North American Act 1867

The British North America Act 

The British North America Act of 1867 (now known as the Constitutions Act 1867), under section 91(24), gave the federal government jurisdiction over “Indians and Lands reserved for Indians,” which was interrupted to mean that the federal government had unfettered authority over Indian affairs in Canada.

The Indian Act 1876 - Present

The Indian Act, with its roots in the colonial policies of the 19th century, continues to regulate many aspects of the lives of First Nations People. It is the most despised piece of Canadian legislation by First Nations, for a number of reasons:

  • It totally ignored that fact that 1st Nations have existed and governed themselves for thousands of year.  It replaced traditional structures of 1st Nations Governance with band councils changing from government lead by hereditary chiefs (both male and female) whose power was acquired through line of descent, rather than through regular scheduled elections. 
  • Its main purpose was to serve as a tool of assimilation and cultural destruction of First Nations people.
  • Established the Reserve System that isolated First Nations People of small tracts of land. At one point in time, indigenous persons need to obtain a permit to leave the reservation. 
  • It established the use of the term Indian in the Canadian legal and cultural lexicon.
  • It made it illegal for First Nations people to practice religious and cultural ceremonies including the potlach.
  • Until 1927, the Act made it illegal for 1st Nations people and communities to hire lawyers or bring about land claims against the Government of Canada. without the consent of the government.
  • It created the Residential School System. Which meant the separation of 1st Nations children from their families at an age as early as 5 years old. 
  • Until 1951, women were excluded from band council politics.
  • 1st Nations people under the Act (and other associated Acts of Parliament) were forbidden to vote in Canadian elections. This was repealed in 1962. 
  • Until 1961, it contained the concept of “compulsory enfranchisement” which meant a First Nations person lost their status if they graduated university, married a non-status person (if they were a woman) or became a Christian minister, doctor or lawyer. The enfranchisement clauses were not totally removed until 1985.

Constitution Act 1982 - Section 25

Aboriginal rights and freedoms not affected by Charter

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

  • (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

  • (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired. (94)

Constitution Act 1982 - Section 35

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 Métis 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.

It is important to note that Section 35 falls outside of the Charter of Rights and Freedoms, and it begins Part II of the constitution. This allows Section 35 to be exempt from the “notwithstanding clause" that applies to the Charter. In other words, the federal government cannot override Aboriginal rights.

The Courts

The Canadian Constitution 1982 is clear on the fact that Indigenous land rights exist. The scope and content of sections  25 and 35 of the Constitution Act, 1982, which constitutionalized the recognition of Aboriginal and Treaty rights, was intended to be dealt with at a political level. However, this approach has been brought with problems. As a result of this situation job of determining the meaning of these provisions has fallen to the Canadian judiciary. 

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