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.
Page created by: muckwa
Changes last made on: August
6, 2003.