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Federal Law Review Needed To Update Legislation Affecting Indians

The following describes one process of implementing effective Indian Government by means of an approach different from the Constitutional process. Vice-Chief Wayne Ahenakew is responsible for promoting this approach.

The recognition of Indian rights and treaties in the Charter of Rights and Freedoms will be without benefit unless the treaty rights are implemented and recognized in the Canadian body of law. The Federation of Saskatchewan Indian Nations along with the Prairie Treaty Nations Alliance has taken the initiative and presented the Federal Government with a proposal to begin a review of all federal legislation by bringing it into line in relation to the treaty responsibilities.

his process is currently underway federally and provincially to bring all legislation into line in relation to the human rights provision contained within the Charter of Rights and Freedoms. Section 25 of the constitution recognizes the continued application of the Royal Proclamation of 1763, and this recognition must be contained within a number of pieces of legislation as well as provision for new legislation.

The Royal Proclamation of 1763 was a proclamation issued by George the Third of England which outlined how the colonies in British North America and England were to deal with and relate to the Indian Nations of North America. Strict rules were laid out and the colonists were forbidden to disturb or enter Indian lands. All negotiations with the Indian Nations were to be conducted by the representatives of the Imperial Crown.

The recognition of the Royal Proclamation confirms what the Indian leadership has been saying for years, there must be legal recognition of Indian nationhood, and legal recognition of the Indian nations title to lands and resources.

The treaty making process must be recognized and re-established, and along with this there must be the recognition of the treaty making powers of the Indian nations themselves.

And finally, the Royal Proclamation of 1763 laid the foundation for the country of Canada. All the land and resources that Canada has acquired are embodied in the Royal Proclamation. The nature of this relationship must be recognized in law.

Section 35 of the Canadian Constitution of 1982 formally recognizes the legal impact of the Treaties. This legal fact must result in the review of all Federal statutes.

The supremacy of the Treaties must be recognized, and where it has been superceded in the past steps must be taken to correct the legislation. An example here would be the Migratory Birds Convention Act which does not recognize Indian hunting rights protected under treaty. This has been the source of ongoing legal action and now with the recognition of treaty rights, the act must be corrected.

The treaties were negotiated between nations and the Chiefs and Headmen represented their people as leaders of political units. The bands must now secure their proper recognition as political units of Indian Nations.

And along with the previous recognition comes the recognition of Indian Government and Indian Government treaty making powers. The Canadian Constitution now recognizes treaties but there is no formal ratification of the terms and conditions contained in the treaties. These terms and conditions must be interpreted in the broadest possible term, placed in the modern context and ratified.

Also, the oral tradition of Indian people must be recognized and the oral and written discussion that took place during the treaty negotiations recognized.

Indian rights of two types were recognized at the time of treaty. First, there were those rights that were written down and negotiated. Second, there were the rights that were not negotiated but remained silent because they were the rights to Indian government, our language, culture and religion. They were rights that we brought with us when we negotiated and entered into treaty.

Also included in the treaties was the Crown access to lands and resources. The Indian view of the treaty negotiation was that land was only on the table for agricultural purposes. The minerals and what lay beneath the land was not included. This leads to the FSIN treaty position that there must be resource revenue sharing for all lands covered by treaty.

A resource revenue sharing formula will have to be developed. Also, each party to treaty has certain obligations to keep the peace and work and live together in harmony. The treaties also called for periodic reviews and changes to

Federal Law Review Needed To Update Legislation Affecting Indians

modernize the treaties. In response a treaty commissioner's office should be established to provide for formal and ongoing negotiations on treaty.

The recognition of the treaties and the Royal Proclamation has created a considerable vacuum in Canadian law with a great deal of work required to set the record straight.

First, all Federal/Provincial law must be reviewed so that Canadian law is brought into line with the treaties. Along with this review all federal statutes must be examined to determine the legal impact of the treaties on Canadian law.

Also, the full scope of the federal government's legal and trust obligation under the treaties and the constitution must be examined and all necessary changes made.

Section 91 of the British North America Act sets out the responsibilities of the federal government. Sub-section 24 of Section 91 states that federal government is responsible for "Indians and lands reserved for Indians." This section must be examined and properly implemented under the term of the 1982 Constitution of Canada.

Section 91(24) is a general statement that the federal government holds responsibility for "Indians and lands reserved for Indians." It has either been ignored or contravened in the past. Under current Indian Affairs policy, off reserve Indians are virtually ignored and dumped in the hands of the provinces.

There must be recognition of the scope of Indian law establishing clear federal obligations and jurisdiction. In return, there must be complementary law recognizing Indian law and Indian government jurisdiction.

On a much broader level, the nature of the Crown and Indian nations' legal and political relationships must be developed and legislated in both Indian and Canadian laws.

Canadian Indian policies have been aimed at the termination of Indian Rights and Treaties. These policies must now be examined and made to reflect the terms and conditions of the treaties. Also, the source and goals of the Canada Indian policies and their legal status must be examined and placed into line with the treaties.

The process necessary to complete this work is the bilateral process. In other words, the Indian governments will deal only with one level of government at a time starting with a federal-Indian government bilateral process and moving later to a provincial-Indian government bilateral process.

By starting at the Federal level, it will be necessary to define in law the full scope of the federal government trust responsibility as outlined in the Royal Proclamation of 1763 and the Treaties and Section 91(24) of the British North America Act.

In order to facilitate this process a treaty commissioner should be appointed and an office of Indian and treaty rights protection. This unit would regulate the legal and political relations between the Indian nations and the Crown within the framework of the Royal Proclamation of 1763, the treaties and the Constitution Acts. This process is necessary. High sounding phrases in the Charter of Rights and Freedoms are not good enough. Action must follow statements of principle. Precedence exists in Canada with human rights and language legislation that have precipitated a full and complete review of legislation.

The treaty nations should expect no less.

Wayne Ahenakew
Photo by Brian Tootoosis
Wayne Ahenakew, Second Vice Chief of the FSIN, has the portfolio for the Federal Law Review and the Board of Enquiry into the performance and implementation of the Treaties.