TURTLE ISLAND

Memo 

August 22, 2002

 To:          Eva Marszewski

 From:      Chris Reid

 Re:       Is registration under the Indian Act as a "status Indian" relevant in determining whether a person holds Aboriginal rights?

 Section 35 of the Constitution Act, 1982 provides that the "existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed".  “Aboriginal peoples" are defined as the "Indian, Inuit and Metis peoples of Canada".  There is no reference to "status Indians" or the Indian Act in the Constitution. 

The Supreme Court of Canada has held that Aboriginal rights are based upon "a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right."' (R. v. Van der Peet).  The Supreme Court has never held that status under the Indian Act is a requirement for holding Aboriginal rights.

 There is no case law to support a claim that Aboriginal or treaty rights are determined by an Aboriginal person's status under the Indian Act.  In fact, there is no connection whatsoever between the Indian Act and entitlement to Aboriginal or treaty rights. The Indian Act was never intended to identify the holders of Aboriginal or treaty rights, it is merely a statutory framework for the administration of Indian Act bands and reserves.

 Since the 1982 amendments to the Canadian constitution, it is now clear that Aboriginal and treaty rights cannot be extinguished without the consent of the affected Aboriginal communities.  Although prior to 1982 the Crown may have been able to extinguish Aboriginal rights unilaterally, it is well settled law that extinguishment cannot be implied or inferred.  The Crown must provide strict proof of the fact of extinguishment.

 The Indian Act was first introduced in 1876.  It is a legislative framework for the administration of band's and reserves.  It was not intended to identify the holders of Aboriginal or treaty rights.  Thus, the Act has been applied in regions where there are no treaties in the same way as it is applied to bands which are parties to treaties.  Many status Indians are not treaty Indians, and vice versa.

 Further, the Indian Act itself has acknowledged that the terms "treaty Indian" and registered Indian" are not synonymous.  The Indian Act of 1876, for example, refers to non-treaty "irregular bands" and "non-treaty" Indians, in addition to defining other categories of Indians. 

Indian Act, S.C. 1876, c. 18, s. 3. 1

 The imposition of the Indian Act and the categorization of Aboriginal people under that Act did not define "Indians" for all purposes.  It merely defined certain categories of "Indians" for the purposes of administering the Indian Act.  Thus, in 1939, the Supreme Court of Canada held that the term "Indians" in section 91(24) of the British North America Act, 1867, includes the Inuit peoples, although the Inuit are clearly not "Indians" within the meaning of the Indian Act. 

Re: Eskimos, [1939] S.C.R. 104; 2 D.L.R. 417. 

The Crown bears the onus of proving that Aboriginal or treaty rights have been extinguished and this proof must be "plain and clear”.  The Supreme Court of Canada has said.. 

"Given the serious and far-reaching consequences of a finding that a treaty right has been extinguished, it seems appropriate to demand strict proof of the fact of extinguishment in each case where the issue arises.”  

Simon v. R., [1986] 1 C.N.L.R. 153 at 170.

 In cases involving treaty rights, the courts have held-that the loss of status does not result in the loss of treaty rights.  

        R. v. Chevrier, [1989] 1 C.N.L.R. 128 (Ont Dist Ct)
R. v. Fowler,[1993] 3 C.N.L.R. (N.B. Prov.  Ct)

R. v. Johnson,[2002] unreported (Ont Prov.  Ct.)

 There is certainly no "plain and clear' proof that the imposition of the Indian Act had the effect of terminating the Aboriginal or treaty rights of those Aboriginal people who are/were not registered under it.

 Although most non-status Algonquins do not define themselves as "Metis", it is worth noting that the Ontario Court of Appeal has ruled in a case involving Metis hunters that Aboriginal rights are not dependant upon an Aboriginal person being a "status" Indian.  Metis may have harvesting rights in areas where they have a tradition of harvesting, just as status Indians do.  It is significant that the Court of Appeal did not impose any "blood quantum" cut-off for Aboriginal rights in Powley.  It found that it was sufficient that the Powleys were of Aboriginal descent and were members of a Metis community which had a long tradition of hunting within their traditional territory.

 R. v. Powley, [2001] (Ont.  C.A.)
In Powley,
the Court of Appeal said:

"The constitution formally recognizes the existence of distinct "Metis peoples", who, like the Indian and Inuit, are a discrete and equal subset of the larger class of "aboriginal peoples of Canada. It seems to me that, in keeping with the interpretive principles to which I have already referred, we must fully respect the separate identity of the Metis peoples and generously interpret the recognition of their constitutional rights.  The rights of one people should not be subsumed under the rights of another.  To make Metis rights entirely derivative of and dependant upon the precise pre-contact activities of their Indian ancestors would, in my view, ignore the distinctive history and culture of the Metis and the explicit recognition of distinct "Metis peoples" in s. 35."

 It is also worth noting that section 91(24) of the Constitution Act, 1867, provides that the federal government has exclusive jurisdiction over "Indians and lands reserved for Indians".  The term "Indians" is not defined, but there is no doubt that non-status Indians are "Indians" within -the meaning of s. 91(24).  Every academic who has, examined this issue has concluded that all Indians are "Indians" within the meaning of s. 91(24).  There were no "status" or "non-status" Indians until 1876, and no status or non-status Algonquins until much later.  The term "Indian" in s. 91(24) could not possibly refer to "status" Indians since no such classification existed in 1867. 

Prof. B. Morse, "Aboriginal Peoples and the Law", at 429-432,
Prof.  Peter Hogg, Constitutional Law of Canada (Carswell. 1998)
Prof.  Wm Pentney, "Aboriginal peoples-and S. 91(24) of the
Constitution act, 1867.
 

See also: Clem Chartier, "Indian: An Analysis of the Term as Used in s. 91(24) of the BNA. Act, 1867, in Sask.  Law Review, Vol 43. and Canadian Bar Assn.  Rpt. on Aboriginal Peoples, (1988) C. 5. A. G. for Ont. v. Bear Island 15 D.L.R (4th) 321 at 331, (H.C.J.) 1985.

 The federal government has never claimed that the Indian Act defines "Indians" for all purposes.  The, Inuit, for example, have been held by the Supreme Court to be "Indians" within the meaning of s. 91(24), but they are specifically excluded from the Indian Acts definition of "Indian". The Indian Act merely defines "Indians" for the purposes of that Act.  The federal government also acknowledges is that the term "First Nation" includes non-status Indians. 

Conclusion 

Aboriginal rights are protected under s. 35 of the Constitution Act. 

The Indian Act is largely irrelevant in determining the scope or content of Aboriginal rights.  In each case where this issue has been directly addressed, the courts have found no link between Indian Act status and whether or not an individual Aboriginal person holds Aboriginal rights.

Turtle Island

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Changes last made on: August 6, 2003.