Law

The legal relationship between Indigenous peoples and the Canadian state is complex, contentious, ambiguous and rooted in a history that far precedes the establishment of Canada itself. The relationship dates back to European "discovery" whereupon French, then English colonizers confronted vibrant and diverse indigenous nations. From then to now, the relationship moved broadly from one of nation-to-nation treaty building to the attempted erasure of indigeneity itself by means of colonization and assimilationist laws and policy. Most recently, the legal relationship has been influenced by a broad-based call for "reconciliation" between First Peoples and Canada, and between Indigenous and non-Indigenous peoples. However, much of the relationship has been determined piecemeal through Canadian courts and only at the insistence of Indigenous claimants.

The following is a brief - but by no means exhaustive - list of links to information on significant treaties, policy and precedent-setting judicial decisions affecting the legal relationship:

1. The Royal Proclamation (1763) and its ratification by 24 First Nations in the Treaty of Niagara (1764) created Aboriginal rights, collective rights exclusive to Aboriginal peoples as a result of their original occupation and use of lands, and Aboriginal title, an Aboriginal right to collectively and exclusively occupy and use land as a result of original occupation.
   
   http://www.solon.org/Constitutions/Canada/English/PreConfederation/rp_1763.html


2. The Indian Act (1876) reflects a consolidation of pre-Confederation "Indian" laws that sought to confine Aboriginal Peoples to reserves under control of the Government of Canada. Administered today by Indigenous and Northern Affairs Canada (INAC), the Indian Act is a body of laws applying only to Status Indians (registered First Nations, but not Inuit or Metis), and it regulates aspects of their economic, cultural and personal lives, including education, health and housing. Recently, the Canada, under Trudeau, has begun to dismantle this Act (see second link).
   http://laws-lois.justice.gc.ca/eng/acts/I-5/
   
   http://www.huffingtonpost.ca/2014/08/11/justin-trudeau-first-nations-financial-transparency_n_5668640.html


3. The White Paper (1969) was a government issued document presented in the wake of the assimilationist-era of "Indian" policy dating back over a century. In essence, the Paper called for elimination of any distinct Aboriginal status and rights, and sought to treat Aboriginal Peoples as any other cultural or ethnic group within Canada. Most Indigenous peoples quickly rebuked the White Paper as the ultimate "program of extermination" through assimilation. This position was best articulated in what came to be known as the "Red Paper".
   
   http://www.aadnc-aandc.gc.ca/eng/1100100010189/1100100010191


4. The Calder Case (1973) led to land claims in places not covered by a treaty between a First Nation and the Crown, specifically, most of the province of B.C. However, the legal burden remains with First Nations to prove original occupation and use of lands they may claim. Link provides details of the case.
   
   http://www.thecanadianencyclopedia.ca/en/article/calder-case/


5. Section 35 of the Constitution Act 1982 "recognized and affirmed" Aboriginal and treaty rights of Aboriginal peoples where "Aboriginal peoples includes the Indian, Inuit and Metis peoples of Canada." This means that those collective rights of First Nations, Inuit and Metis (rights stemming from the original occupation and use of land), and treaty rights (a particular Aboriginal right set out in a given treaty) were constitutionally protected and thus could not be infringed upon by legislation without a requisite constitutional amendment.
   
   http://laws-lois.justice.gc.ca/eng/Const/page-16.html


6. The Sparrow Case (1990) is important because it put Section 35 into action by setting the precedent that infringement upon Aboriginal rights can only occur with the consultation and compensation of the Nation(s) affected. Details in the link.
   
   http://www.thecanadianencyclopedia.ca/en/article/sparrow-case/


7. The Delgamuukw case set the precedent that oral history could be submitted as evidence and that the use of land by Aboriginal peoples must reflect a particular peoples or nation's historic attachment to the land.
   
   http://thecanadianencyclopedia.ca/en/article/delgamuukw-case/

This is one piece in Nadia Myre's collection 'Indian Act' in which she has beaded over pages of the original Indian Act.