royal proclamation 1876
After a bitter war with France, Britain created the "proclamation" Royal Proclamation to integrate settlers into North American territory. Part of the Proclamation dealt specifically with Aboriginal issues and forms the basis of our understanding of the legal nature of Aboriginal title.
The British wanted settlers to move into the area, but also wanted to ensure that Aboriginals had their own land. The proclamation forbid settlers from making land deals on a private basis, and instead ensured that any future negotiation was to be carried out by the government and recorded in written agreements (treaties). It gave Britain the right to buy land, but protected First Nations’ right to hunt and fish on the acquired lands.
Modern-day courts throughout Canada have upheld these rights, based partly on this early piece of legislation. The full extent of where the Proclamation applies in Canada is still subject to dispute, but it is a major document in terms of its importance to the foundation of Aboriginal law.
indian act
Created in 1876, the Indian Act is administered by the Minister of Indian Affairs and Northern Development.
It defines who qualifies for status and puts reserve property and the people who live there under the control of the Minister and federal government officials.
In fact, the Act states that title to reserves belongs to the Crown and forbids the “surrender” and sale or use of reserve land by a First Nations person or Band to anyone other than the crown.
The Act also outlines certain legal rights for registered Indians which cannot be challenged under the Canadian Constitution.
Before 1985, First Nations people could lose status in a variety of ways, including:
- marrying a man who was not a Status Indian "Indian enfranchisement in Canada"
- enfranchisement (until 1960, an Indian could vote in federal elections only by renouncing Indian status)
- having a mother and paternal grandmother who did not have status before marriage (these people lost status at 21)
- being born out of wedlock to a mother with status and a father without.
The Indian Act was amended in 1985 (Bill C-31) to restore status to people who had lost it in one of these ways, and to their children. The population of Status Indians has since climbed dramatically.
Federal funding has not fully taken these demographic changes into consideration. The land base on reserves – often of poor quality and insufficient to meet the needs of the population even prior to 1985 – has not changed. Furthermore, 56 per cent of reserves are located in remote or rural areas, contributing to high unemployment. As a result conditions on many reserves are well below those enjoyed by most Canadians. Overcrowding, poor infrastructure, inadequate social programs and services are directly related to the underfunding and historical neglect of First Nations people.
The Indian Act does provide protection for treaty rights from the negative effects of Provincial laws. Section 88 of the Indian Act allows provincial law to apply to aboriginal people and their rights in certain circumstances but specifically protects treaty rights by making those provincial laws subject to treaty rights. This principle applies to the Douglas Treaties, as the Supreme Court of Canada held in R. v. White and Bob and more recently in R. v. Morris.
Regina vs bob & white
Clifford White of Snuneymuxw (Nanaimo) and David Bob sr. of Snaw-naw-nas (Nanoose); these two men were hunting on Old Nanaimo Lake Road on Vancouver Island, British Columbia, and were found in their possession deer carcasses shot on the west slope of Mount Benson near Nanaimo, as food for the accused and their families.
Until the 1960's the provincial government that these treaties gave any rights to First Nations in the case of Regina v. White and Bob the Supreme Court of Canada confirmed that the Douglas Treaties were genuine treaties creating legal rights for our people. There are still many issues outstanding about these treaties. We continue to fight to have our full rights recognized and to respond to the governments claim that we extinguished our aboriginal title.
Landmark Court Cases
Since the early 1970's aboriginal rights have slowly evolved and been defined by the Canadian courts.
Delgamuukw confirmed that aboriginal title was never extinguished in BC and therefore still exists; it is a burden on Crown title; and when dealing with Crown land the government must consult with and may have to accommodate First Nations whose rights are affected.
This duty arises from the need to deal with aboriginal rights in the interim prior to those rights being addressed through a treaty or court decision. Government cannot run roughshod over aboriginal interests. And First Nations do not have a veto over what can be done with land pending final proof of claim. The consultative process must be fair and honourable, but at the end of the day, government is entitled to make decisions even in the absence of consensus.
However, the court put to rest the notion of extinguishment of aboriginal rights and finality in agreements. Instead, the goal of treaty making is to reconcile aboriginal rights with other rights and interests, and that it is not a process to replace or extinguish rights. The courts stated, "Reconciliation is not a final legal remedy in the usual sense." It said "just settlements" and "honourable agreements" are the expected outcomes.
For example, the Delgamuukw case was in the courts thirteen years. While the case resulted in some clear and strong statements concerning aboriginal title, it did not define how aboriginal title applied for the First Nations involved as the court decided a new trial was required.
In the BC Court of Appeal ruling in the Haida case, then Justice Lambert reiterated the need to negotiate:
