Treaties and Legislation Impacting Indigenous - 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

Gradual Civilization Act, 1857

In 1857, 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.

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 the fact that 1st Nations have existed and governed themselves for thousands of years. 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 the line of descent, rather than through regularly 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

See the Indian Act for further information.

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)

Constitutional Reconciliation and the Canadian Charter of Rights and Freedoms
This paper considers the relationship between the Charter of Rights and Freedoms and Indigenous self-determination in the context of constitutional reconciliation in Canada. It begins by reviewing case law and legal scholarship on the application of the Charter to Aboriginal governments, with a particular focus on the debates over the interpretation of section 25, which stipulates that Charter rights cannot "abrogate or derogate" from Aboriginal and treaty rights. I show that, while different options have been suggested for how the Charter could be interpreted in the case of a conflict between Charter rights and Aboriginal rights, each of these possibilities creates problems of its own. Fundamentally, the seemingly irresolvable tensions that emerge between the various interpretations of section 25 reflect a deeper problem that it is necessary for a project of constitutional reconciliation to address: the underlying assumptions of Crown sovereignty and the place of Indigenous legal cultures in Canadian federalism. Ultimately, the paper argues that the Charter does have a role in the articulation of a nation-to-nation relationship between Canada and Indigenous peoples because it imposes a duty on courts to develop interpretations that are cognizable within Indigenous legal traditions.
Case Comment on R. v. Kapp: An Analytical Framework for Section 25 of the Charter.
There is a significant void in the jurisprudence and literature regarding section 25 of the Canadian Charter of Rights and Freedoms. Consequently, there is no settled interpretation of either when it is triggered or the specific analytical framework that should apply. In R. v. Kapp, the British Columbia Court of Appeal provides a groundbreaking analysis of section 25 that addresses both constitutional questions. The author first reviews the facts of the case, in which ten non-Aboriginal persons accused of unlawful fishing challenged regulations that restricted fishing in an area to members of licensed First Nations bands on the ground that they violated section 15 of the Charter. A majority of the British Columbia Court of Appeal dismissed the appeal, finding no infringement of section 15. While several members of the court declined to consider the section 25 argument, Justices Low and Kirkpatrick provide an in-depth analysis of the section. The author shows how neither decision resolves the debate about whether section 25 should be triggered after a Charter right analysis has commenced or as a threshold issue before beginning such an analysis. Justice Kirkpatrick, however, provides a structured three-part framework for section 25 that the author argues will serve as a starting point for future courts undertaking a section 25 analysis. The author addresses several problems with the framework. Finally, the author notes that the decision does not deal with the potential conflict between an individual Aboriginal right protected by the Charter and a collective Aboriginal right protected by section 25. [ABSTRACT FROM AUTHOR]

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.

Indigenous Peoples and Interstitial Federalism in Canada
The scope and content of section 35 of the Constitution Act, 1982, which constitutionalized the recognition of Aboriginal and Treaty rights, was intended to be negotiated at the political level. The failure of that process meant that the job of determining the meaning of the provision fell largely to the judiciary. As a result, the constitutional relationship between Indigenous peoples and the Canadian state has most frequently been theorized in terms of Aboriginal rights and the judicial doctrines interpreting section 35. This paper explicitly considers the relationship between Indigenous peoples and Canadian governments from the perspective of federalism. It does so by emphasizing the interstitial character of federalism. This articulation serves two functions. First, it recognizes the myriad ways that Indigenous peoples exercise jurisdiction as being constitutive of federalism in Canada. That is, it offers a way of re-describing existing practices of governance in Canada in order to shed light on their federal character. Second, this approach offers a view of how constitutional change can occur moving forward, providing a critique of conceptions of federalism that cement a constitutional order that has historically marginalized Indigenous practices of governance. Lastly, it suggests avenues for the development of a federalism that can support Indigenous self-determination.
Commentary on Section 35
Section 35 is the part of the Constitution Act that recognizes and affirms Aboriginal rights. The Canadian government did not initially plan to include Aboriginal rights so extensively within the constitution when the Act was being redrafted in the early 1980s. Early drafts and discussions during the patriation of the Canadian Constitution did not include any recognition of those existing rights and relationships, but through campaigns and demonstrations, Aboriginal groups in Canada successfully fought to have their rights enshrined and protected.

It is important to understand that Section 35 recognizes Aboriginal rights, but did not create them. Aboriginal rights have existed before Section 35.

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.

A Shifting Governance Landscape

The Indian Act and the Future of Aboriginal Governance in Canada
The Indian Act is no longer an uncontestable part of the Aboriginal landscape in Canada.
For decades, this controversial and intrusive piece of federal legislation governed almost
all aspects of Aboriginal life, from the nature of band governance and land tenure
systems to restrictions on Aboriginal cultural practices. Historic legislation is now being steadily eroded. At
the political level, Aboriginal and non-Aboriginal critics of the Indian Act offer biting
critiques of the limits of Indian Act governance and argue for the elimination of this
outdated and no longer relevant administrative device. At the same time, recently
concluded modern land claims settlements have eliminated the authority of the Indian Act
over specific Indigenous groups, replacing the federal law with complex agreements on
governance, taxation and government to government relations.

Did Indigenous Nations and people Really Cede their Territory to the Crown?

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 always seemed to favour 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. See R vs Sioui to learn how this situation is currently dealt with under Canadian Law.