The Law and Native Peoples

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The Law and Native Peoples
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Table of Contents

• Introduction
• Cultural and Legal Distinctions
• The Indian Act
• Treaties and Treaty Rights
• Aboriginal Rights
• Land Claims
• Aboriginal Self-Government

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Introduction

• Native people and Canadian law have an uneasy
  relationship
• When Europeans came to Canada
• - Natives removed
• from their land
• - Native culture
• ruined

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Cultural and Legal Distinctions

• Section 35 (1) of Constitution Indians, Inuit,
  Métis are aboriginal peoples
• - Inuit live in arctic/sub-arctic regions
• - Métis are of mixed descent
• Band group of Natives that use the same land as
  set aside in the Indian Act

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• Treaty Indians Natives living on land covered
  by a treaty
• Off-reserve Indians Natives that live off
  their reserve for 12 months in a row

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Benefits of Indian Status

• Registered Indians
• - enjoy treaty rights
• - entitled to tax exemptions
• - can get health, educational,
• economic benefits from Indian
• Affairs

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• Non-Registered Indians
• - partial treaty rights
• - no tax exemptions
• - rights granted by their First
• Nation
• - health, economic,educational
• benefits from various federal/
• provincial agencies

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The Indian Act

• First passed in 1876, revised extensively since
  then
• Original purpose was to promote assimilation
• Gives Indians special status, not necessarily
  beneficial

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Band Councils

• bands are governed by a chief and council
• Indian Act tried to make band councils like
  Parliament
• Band may follow traditions in choosing a chief
  or use Indian Act declaration
• Indian Affairs Minister can overturn an election

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Law Making

• Draft bylaw passed by majority vote of band
  council
• Special meeting of band members called to vote on
  draft bylaw
• Draft bylaw is approved by majority of those at
  meeting

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• Band council meets to pass approved bylaw
• Bylaw is sent to Indian Affairs Minister who has
  40 days to disallow it

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Education

• Original Indian Act gave Natives little control
  over education
• Government saw education as means of assimilation
• Indian Affairs now giving more Native control
  over schooling

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Treaty and Treaty Rights

• Indian Treaties written agreements between
  government and recognizable group of aboriginal
  people, setting out terms that both parties must
  comply with

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• Treaties grant
• - reserve lands for exclusive use
• - building of schools
• - farm equipment
• - hunting/fishing rights
• - lump sum cash payments
• - sets of clothes every 3 years
• - assistance in times of famine/pestilence
• - various other things

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Post Confederation Period

• Between 1871 1921 Government of Canada
  concluded a series of land agreements with the
  First Nations inhabiting the newly named
  Northwest Territories called numbered treaties

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Aboriginal Rights

• refers to rights created by first occupation and
  use of the land
• Includes
• right to occupy traditional lands to control and
  benefit from their resources
• right to self-government and to determine what
  form relationships with Canadas other levels of
  government will take

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• right to a Native justice system and control
  over law enforcement
• right to protect and maintain language and
  culture
• the control over social services such as
  administering education

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• the return of cultural objects from museums and
  private collections
• compensation for resources taken without Native
  consent

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Approaches to Aboriginal Rights

• 3 basic approaches
• recognition-based approach
• occupancy-based approach
• community-based approach

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Recognition-Based Approach

• looks for proof of existence of aboriginal rights
  through examination of evidence of government
  recognition of their existence
• Royal Proclamation of 1763 is the primary source

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Occupancy-Based Approach

• Based on the idea that aboriginal rights arise
  from common law recognition of the occupation
  and use of the land by Native people prior to the
  Europeans

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Community-Based Approach

• Based on the premise that aboriginal rights are
  constituted from all distinctive community
  traditions
• Use of this approach is to seek aboriginal
  traditions before European colonization

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• Traditions encompass
• religious beliefs and rite
• economic practices
• family organization and custom
• language
• justice and law enforcement
• rules of self-government

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Land Claims

• two types of claims

Specific Claims - claims made by Native people
for lawful obligations to Indians under the
treaties, other agreements, or the Indian Act
that government didnt fulfill
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Comprehensive claims - based on the concept of
continuing aboriginal rights and title that have
not been dealt with by treaty or other lawful
means

• Acceptance or rejection of a claim goes through
  the negotiation progress
• Initial negotiation to identify key issues and
  to develop a framework agreement to direct the
  overall approach

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2) Substantial negotiation to produce an
Agreement-in-Principle 3) Finalization to
formalize a final agreement 4) Enactment of
settlement legislation to bring the agreement
into force
5) Implementation of settlement legislation to
carry out the agreement
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Major Settlements 1975 James Bay and Northern
Quebec Agreement 1978 Northeastern Quebec
Agreement 1984 Inuvialuit Final Agreement
(western Arctic) 1992 Gwichin Final Agreement
(western Arctic) 1993 Nunavut Land Claims
Agreement (eastern Arctic)
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1993 Council for Yukon Indians Umbrella Final
Agreement and four Yukon First Nations Final
Agreements 1993 Sahtu Dene and Metis Final
Agreement
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Land Claims in BC

• There are more unsettled comprehensive claims
  from First Nations in BC than in the rest of
  Canada
• In 1990, BC finally agreed to engage in land
  claims talks
• On Feb. 26, 1996, after more than 20 years of
  negotiations, the governments of Canada and BC
  signed an agreement-in-principle with the Nisgaa

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The tentative agreement gives the Nisgaa

• 190 million to be paid over several years, plus
  11.5 million for the purchase of commercial
  fishing vessels and licences

- ownership of 1930 km2 of land, including
timber resources and mineral rights and the
right to harvest a certain volume of timber per
year outside the treaty area

• powers of self-government, including the power to
  tax Nisgaa citizens on Nisgaa land

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• the authority to set up their own police board
  and system of courts

• the right to reclaim hundreds of artifacts now
  held in Canadian museums

• non-commerical hunting, fishing, and food
  gathering rights within their traditional
  territory of 9000 km2 and participation in
  wildlife management

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• a guaranteed share of the commerical salmon
  fishery on the Nass River, in return for agreeing
  to reduce their constitutionally protected
  traditional food fishery during low-run years

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Aboriginal Self-Government

• aboriginal people have attached different
  meanings to the term self-government
• their difference in views came from their culture
  diversity, varied local and regional needs,
  historical experience, and personal beliefs

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Sovereign Government - separation from
Canada Traditional Self-Government - based on
customs and practices predating European
contact Legislated Self-Government - governed by
Indian Act
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Guaranteed Participation Through Negotiation -
the land claims agreements concluded made formal
provision for aboriginal representation Public
Government - formed by aboriginal people and
creates the opportunity for them to determine
the outcome of local elections
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Coordinated Ethnic Government - operates as a
two-tiered system under the authority of the
Indian Act Judicial Self-Government - has the
courts recognize an inherent right of self-
government