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|(a) Aboriginal Rights||(c) British North America Act|
|(b) Treaties||(d) Indian Act|
(a) ABORIGINAL RIGHTS
The Royal Proclamation of 1763 is often referred to by Indians as the "Indian Bill of Rights". Others have called it the "Charter of Indian Rights". The reasons for these kinds of comments is because the Proclamation was the first time a government recognized that Indians had certain rights in the land because they were the first ones to live on it. It, however, did not create rights. It affirmed old rights. The following is a portion from the Proclamation itself:
". . And whereas it is just and reasonable, and essential to our interest, and the security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them or any of them, as their Hunting Grounds... And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignity, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the limits of Our Said Three New Governments, or within the limits of the Territory granted to the Hudson's Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid;
And we do hereby strictly forbid, on Pain of our Displeasure, All our loving Subjects from making any Purchases or Settlements whatever or taking Possession of any of the Lands above reserved, without our especial leave and License for the Purpose first obtained. And We do further strictly enjoin and require all Persons whatever who have either willfully or inadvertently seated themselves upon any Lands within the Countries above described, or upon any other Lands which, not having been ceded to or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such settlements."
The Royal Proclamation did not describe who an Indian was. All it said was that a white settler could not purchase land directly from an Indian. Nor could he steal the land. The purchases that had been previously made were nothing short of theft and the British Government was intent on protecting Indian land rights. A concern that has been expressed by courts since that time is whether or not aboriginal rights extend to all parts of North America or just to the eastern portion of North America. Arguments have been made to try to support the notion that, in 1763, the British were not aware of western Canada and the western United States. Fortunately, the courts have not supported this.
Metis and non-status Indians (those living in nontreaty areas) have in certain instances based their claims on aboriginal rights. The courts ~ have, however, suggested that aboriginal rights for Indians consisted of mere personal use and enjoyment of the land. If this argument is true it would mean that Indians have no rights to mines, minerals and other natural resources. However, since these are all unanswered questions, there is a good chance that these questions will yet be answered in favour of Indians.
Presently about half of the Indian population of Canada is in a treaty area. These treaties have had the effect of extinguishing the Indians' personal use of the land. Another way of saying this is treaties have perhaps extinguished aboriginal rights. Therefore, an Indian who belongs to a treaty area will not usually base his claims against the Government of Canada on aboriginal rights, but rather on his treaty rights. What then is a treaty? Treaties have been viewed at different times and in any of the following ways:
(iii) International treaties
When our forefathers signed their names to the treaties, and by that gave up nearly half of what is now Canada, they intended these "agreements" to be binding for all times - for as long as the sun shines, grass grows and the river flows. The agreements were sacred and could therefore not be broken. Unfortunately, in a, court of law, agreements are not considered binding. That is to say, an agreement cannot be enforced in a court of law. Only contracts can be enforced in a court of law. Contracts are agreements. But agreements are not necessarily contracts. Therefore, for Indians to advance claims on the basis that treaties are agreements is of no legal consequence.
In a speech given on August 8, 1969 in Vancouver, British Columbia, Prime Minister Trudeau commented as follows:
". . . the way we propose it, we say we won't recognize aboriginal rights. We will recognize treaty rights. We will recognize forms of contract which have been made with the Indian people by the Crown and we will try to bring justice to that area and this will mean that perhaps the treaties shouldn't go on forever. It's inconceivable. I think, that in a given society, one section of the society have a treaty with the other sections of society."
Even though the Prime Minister apparently doesn't like the idea of treaties, nevertheless, he is prepared to recognize them the same as he would a contract. Generally speaking, the few court cases that there have been, have supported the notion that Indian treaties are contracts or "personal obligations" between the Indians and the Governors (who represented the Government of Canada). There are, however, a number of legal problems that arise if the contract model for treaties is accepted. The treaties were made under duress, undue influence, mistake and various other problems associated with contracts. Since each of these could void the contract it would therefore mean the same as saying the treaties are not binding. If, however, Indians allege breach of contract and sue the government for damages, the government may argue that the legal time limit to sue is past. Generally, the time limit is six years. But Indian treaties are approximately a hundred years old.
For decades the courts considered treaties to be legally binding only if they fitted the particular criteria required for an international treaty. Since S.88 has been implemented into the Indian Act, it is no longer necessary for an Indian treaty to be international in nature to have effect. It merely has to be a "treaty" in the meaning of S.88. S.88 states as follows:
"Subject to the terms of any treaty and any Act of the Parliament of Canada, all laws of general application from time to time enforced in any province are applicable to and in respect to Indians in the province..." However, a treaty in this sense will only prevail over provincial laws. Treaties are still subject to federal laws, eg. The Migratory Birds Convention Act.
(iii) INTERNATIONAL TREATIES
In order to have an international treaty it is necessary that the agreement be between two or more independent nations. In a court case, Regina v. White and Bob, the court concluded that an Indian treaty did not establish relationships between two or more independent states acting in sovereign capacities. This meant that the Indians were not considered sovereign nations when they signed the treaties. It is clear that the government representatives and the Indian negotiators considered Indian people to be "Subjects of the Queen". However, in Rex v. Wesley, a 1932 case, the court considered the various treaties with Indians were binding obligations and enforceable in law even though they weren't considered international treaties. Also, if an Indian treaty is proven to be an international treaty by an international convention or court, the practical question remains as to who would enforce the decision. Enforcement would require some kind of international police force. None exists. The closest thing we have to such is the United Nations. However, this organization has proven to be ineffective in most cases.
(c) B.N.A. ACT
The B.N.A. Act is the constitution or framework which the provincial and federal governments in Canada follow when deciding who can make laws over particular areas. Indians, for example, come under Section 91(24) of the B.N.A. Act and are therefore within federal legislation. This means that only the federal government can make laws for "Indians and lands reserved for Indians". The term "Indian" has, however, never been precisely defined. For instance, one person can be an "Indian" under the B.N.A. Act but not under the Indian Act. It is debatable, then as to who qualifies legally as an Indian for various purposes.
Certainly people who signed treaties and their descendents, plus those from areas where there are no treaties, are registered as Indians according to the Indian Act. But Indians, not under the Indian Act, may still come under the broad definition in S.91(24).
At best, it is rather dangerous to rely solely on the strength-of rights derived through the B.N.A. Act. This is so because it is conceivable that the federal government may simply repeal the Indian Act and accordingly not make laws for "Indians and lands reserved for Indians". In other words, the Indian Act drafted pursuant to S.91 (24) of the B.N.A. Act, would no longer exist. There are sections within the B.N.A. Act which have never been acted upon. Realistically, however, it is most unlikely the Indian Act would ever be removed. The reasons against such a happening are Indian political influence and public sentiment.
Another portion of the B.N.A. Act which was passed in 1930 is called the Natural Resources Transfer Agreement. Section 12 of the Act goes as follows:
"In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game enforced in the Province from time to time shall apply to the Indians within the boundaries thereof, provided, however, that the said Indians shall have the right, which the Province hereby assures them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands which the said Indians may have a right to access."
This particular section was recently considered by the Supreme Court of Canada in Frank v. The Queen. The holding of the Act appeared to be that Indians can hunt at all seasons in both Saskatchewan and Alberta providing they are hunting for food.
(d) INDIAN ACT
The Indian Act is basically an administrative document by which the Government of Canada proposes to deal with the various Indian bands across Canada. It applies to both treaty and non-treaty areas. It doesn't expressly give rights to Indian people, however, it can and does take away rights. An example is S.12(1)(b) which takes away Indian status from an Indian woman who marries a non-Indian.
Unfortunately, the Act has consistently operated to take away the special status that Indian people enjoy. The underlying philosophy has always been assimilation and termination of reserves. This was previously discussed in detail in PART ONE.