Indians and the Division of Powers in Canada

1
Indians and the Division of Powers in Canada

• By Kristopher Crawford-Dickinson
• BA (Hons), M.A., Dip. D.A., Dip. J.A., LL.B.,
  PhD(c)

2
Legal Warning

• The views expressed in this lecture (both the
  lecture notes and any accompanying commentary)
  are strictly those of the author. They should
  not be construed as any official or unofficial
  policy of any government body.

3
Objectives of Lecture

• Provide the constitutional and legislative
  framework for how jurisdiction over Indians in
  Canada operates.
• Define who is an Indian and what is meant by
  Lands Reserved for Indians.
• Examine key judicial decisions regarding
  jurisdiction over Indians in Canada.

4
Constitutional Framework

• The Constitution Act, 1867, (U.K.) 30 31
  Vict., c.3.
• 91. It shall be lawful for the Queen, by and with
  the Advice and Consent of the Senate and the
  House of Commons, to make Laws for the Peace,
  Order and good Government of Canada, in relation
  to all Matters not coming within the Classes of
  Subjects by this Act assigned exclusively to the
  Legislatures of the Provinces, and for greater
  Certainty, but not so as to restrict the
  Generality of the foregoing Terms of this
  Section, it is hereby declared that
  (notwithstanding anything in this Act) the
  exclusive Legislative Authority of the Parliament
  of Canada extends to all Matters coming within
  the Classes of Subject next hereinafter
  enumerated that is to say,
• 24. Indians and Lands reserved for Indians.

5
Constitutional Framework

• Canadian Charter of Rights and Freedoms, Being
  Schedule B to the Canada Act, 1982, (U.K.) 1982,
  c.11.
• 25. The guarantee in this Charter of certain
  rights and freedoms shall not be construed so as
  to abrogate or derogate from any aboriginal
  treaty or other rights or freedoms that pertain
  to the aboriginal peoples of Canada including
• (a) any rights or freedoms that have been
  recognized by the Royal Proclamation of October
  7, 1763 and
• (b) any rights or freedoms that now exist by
  way of land claims agreements or may be so
  acquired.

6
Constitutional Framework

• Constitution Act, 1982, Being Schedule B to the
  Canada Act, 1982, (U.K.) 1982, c.11.
• 35. (1) The existing aboriginal and treaty
  rights of the aboriginal peoples of Canada are
  hereby recognized and affirmed.
• (2) In this Act, aboriginal peoples of
  Canada includes the Indian, Inuit and Métis
  peoples of Canada.
• (3) For greater certainty, in subsection (1)
  treaty rights includes rights that now exist by
  way of land claims agreements or may be so
  acquired.
• (4) Notwithstanding any other provision of
  this Act, the aboriginal treaty rights referred
  to in subsection (1) are guaranteed equally to
  male and female persons.

7
Constitutional Framework

• Important Notes About Constitutional Framework
  The following is important to note about the
  constitutional framework regarding jurisdictional
  issues over Aboriginals in Canada
• Federal Jurisdiction The federal government
  has jurisdiction over Indians and lands reserved
  for Indians under s. 91(24) of the Constitution
  Act, 1867.
• Constitutional Entrenchment of Aboriginal
  Rights Section 35(1) of the Constitution Act,
  1982 constitutionally entrenches Aboriginal
  rights. Prior to 1982 Aboriginal rights existed
  at common law and therefore could be altered
  and/or extinguished by the federal government
  through ordinary legislation.

8
Legislative Framework

• Indian Act, R.S.C., 1985, c. I-5.
• 88. Subject to the terms of any treaty and any
  other Act of Parliament, all laws of general
  application from time to time in force in any
  province are applicable to and in respect of
  Indians in the province, except to the extent
  that those laws are inconsistent with this Act or
  any order, rule, regulation or by-law made
  thereunder, and except to the extent that those
  laws make provision for any matter for which
  provision is made by or under this Act.

9
Legislative Framework

• Section 88 of the Indian Act in Regular
  Language
• Provincial laws of general application apply to
  Aboriginals except under the following
  circumstances
• If they conflict with existing treaty rights
• If they conflict with any existing federal
  legislation
• If they conflict with any provisions in the
  Indian Act
• If they conflict with any order, rule, regulation
  or by-law made under the Indian Act

10
Who Is An Indian?

• Are Indians Indians?
• Are the Inuit Indians?
• Are the Métis Indians?

11
Who Is An Indian?

• Indians May Not Be Indians
• Indian Act, R.S.C., 1985, c. I-5.
• 7.(1) The following persons are not entitled to
  be registered
• (a) a person who was registered under paragraph
  11(1)(f), as it read immediately prior to April
  17, 1985, or under any former provision of this
  Act relating to the same subject-matter as that
  paragraph, and whose name was subsequently
  omitted or deleted from the Indian Register under
  this Act or
• (b) a person who is the child of a person who was
  registered or entitled to be registered under
  paragraph 11(1)(f), as it read immediately prior
  to April 17, 1985, or under any former provision
  of this Act relating to the same subject-matter
  as that paragraph, and is also the child of a
  person who is not entitled to be registered.

12
Who Is An Indian?

• Inuit May Not Be Indians
• Reference re British North America Act, 1867
  (U.K.), s. 91 (The Eskimo Reference), 1939
  S.C.R. 104.
• Facts A controversy arose between Parliament
  and the Legislature of Quebec over who had
  jurisdiction over the Eskimo living in Northern
  Quebec. The Province of Quebec argued that the
  Eskimo were Indians under s. 91(24) of the
  Constitution Act, 1867 while Parliament argued
  that the Eskimo were not Indians. To resolve
  this problem, Parliament sent a Reference
  Question to the Supreme Court of Canada.
• Issue Are the Eskimo Indians under s. 91(24)
  and therefore under federal jurisdiction?

13
Who Is An Indian?

• Inuit May Not Be Indians
• Decision The reference question was answered
  in the affirmative and the Eskimos are Indians.
• Ratio Three decisions were issued in this case
  (none of which gained a majority perspective).
• Duff C.J. (Plurality Decision) Eskimos must
  be considered Indians because the official
  documents at the time referred to Eskimos as
  Savages, which was how Indians were referred
  to at that time.

14
Who Is An Indian?

• Inuit May Not Be Indians
• Cannon J. (Crocket J. Concurring) The Eskimo
  are Indians because the French word Sauvages
  (English for Savages) includes all present and
  future aborigines native subjects of the
  proposed Confederation of British North America.
• Kerwin J. (Cannon J. and Crocket JJ.
  Concurring) (Another Plurality Decision) The
  common definition of Indian at Confederation
  equated Eskimos with Indians and therefore
  Eskimos must be Indians.
• The historical record indicates that the Eskimo
  were categorized with Indians for census
  purposes.

15
Who Is An Indian?

• Inuit May Not Be Indians
• According to the Re Eskimo, the Inuit are
  Indians.
• However, according to s. 4(1) of the Indian Act,
  the Inuit are not Indians
• Section 4(1) of the Indian Act reads
• 4.(1) A reference in this Act to an Indian does
  not include any person of the race of aborigines
  commonly referred to as Inuit.

16
Who Is An Indian?

• Inuit May Not Be Indians
• Are the Inuit Indians?

17
Who Is An Indian?

• The Métis may not be Indians
• R. v. Blais, 2003 3 S.C.R. 237.
•  
• Facts The Appellant was charged for hunting
  without a license. At trial, the Appellant
  argued that he was exercising an Aboriginal (in
  this case Métis) right, which was protected under
  the Natural Resource Transfer Agreement. The
  Respondent Crown argued that the Natural Resource
  Transfer Agreement does not apply to the
  Appellant since the term Indian does not refer
  to the Métis
• Issue Doe the term Indian in the Natural
  Resource Transfer Agreement include the Métis?
•  

18
Who Is An Indian?

• The Métis may not be Indians
• Decision Judgment for the Respondent, the
  appeal was dismissed.
•  
• Ratio The Métis are not considered Indians
  under para. 13 of the Natural Resource Transfer
  Agreement, which applies to Manitoba,
  Saskatchewan and Alberta as a result of the way
  in which the term Indian was used in the 1930s
  (i.e. the Métis were considered separate from
  other Indians in the 1930s).

19
Who Is An Indian?

• The Métis may not be Indians
• Note In Blais, the Supreme Court did not
  decide whether the Métis were Indians for the
  purposes of s. 91(24) of the Constitution Act,
  1867. In fact, the Court specifically stated it
  was not deciding that issue. What is interesting
  to note, however, is that the Court discussed
  some of the evidence used in Re Eskimo to
  conclude the Métis were not Indians for the
  Natural Resource Transfer Agreement.
• Note As of right now, the constitutional
  status of the Métis is undecided. Parliament
  claims that the Métis are not Indians while the
  provincial legislatures claim that the Métis are
  Indians

20
Who Is An Indian?

• The Métis may not be Indians
• Why is each level of government claiming the
  other has jurisdiction over the Métis?
• Do you think the Métis areIndians?

21
Lands Reserved For Indians

• Includes Formally Created Indian Reserves
  Lands reserved for Indians includes any and all
  formally created Indians Reserves (i.e. they are
  under federal jurisdiction.
• Includes Lands Set Aside by Royal Proclamation,
  1763 Lands reserved for Indians includes any
  lands that were set aside by the Royal
  Proclamation, 1763 (i.e. they are under federal
  jurisdiction).
• Includes Aboriginal Title Land At Assertion of
  Crown Sovereignty Any lands subject to an
  Aboriginal Title Claim arising out of the
  assertion of Crown Sovereignty are under federal
  jurisdiction.

22
Judicial Decisions On Jurisdiction

• R. v. Sutherland, 1980 2 S.C.R. 451.
• Facts The Respondents were treaty Indians.
  The Respondents were apprehended while hunting
  deer for food. The Respondents were charged
  under s. 19(1) of the Wildlife Act for hunting
  with the aid of a spotlight. They were convicted
  at trial, but were successful on appeal when the
  Manitoba Court of Appeal held that s. 49 of the
  Wildlife Act was ultra vires because it directly
  limited where Indians could hunt. The Crown
  appealed.
• Issue Two issues were raised in this case.
  They were
• 1) Can a provincial law directly apply to
  Indians?
• 2) Do provinces have the authority to enact
  hunting laws of general application that affect
  Indians?

23
Judicial Decisions On Jurisdiction

• Decision Judgment for the Respondent, the
  appeal is dismissed.
• Ratio There are three important ratios to note
  about this case. They are
• 1) Provincial Laws Cannot Directly Apply to
  Indians The provinces do not have the
  constitutional authority to enact legislation
  that directly applies to Indians (i.e.
  legislates Indians qua Indians).
• A) Laws That Single Out Indians Cannot Be
  Of General Application Any laws that
  purposefully single out Indians cannot be of
  general application.

24
Judicial Decisions On Jurisdiction

• 2) Provinces Have Constitutional Authority To
  Enact Hunting Laws Of General Application
  There is no doubt that the provinces have the
  authority to enact hunting laws of general
  application, even if those laws have an
  indirect effect Indians.
• 3) Legislation Must Be Interpreted In Favor
  of Indians If any doubt exists within the
  legislation, that doubt must be interpreted
  in favor of the Indians.

25
Judicial Decisions On Jurisdiction

• Four B. Manufacturing Ltd. v. United Garment
  Works of America, 1980 1 S.C.R. 1031.
• Facts The Appellant (Four B.), which was
  incorporated under the laws of Ontario and
  carrying on business on an Indian Reserve, was
  owned by four brothers (all of which were
  Indians). The Appellants business was the
  manufacturing of shoes. It was not controlled by
  the Band Council, but occupied premises on the
  Reserve. The Appellant received money from the
  Government of Canada (including funds from
  various Indian Affairs Programs). Some of the
  workers at Four B. wanted to unionize under
  provincial legislation. The Appellant challenged
  the certification process on the grounds that the
  federal legislation was applicable since the
  company was owned and operated by Indians.
• Issue Does the provincial or federal labor
  relations legislation apply to Four B.
  Manufacturing Ltd.

26
Judicial Decisions On Jurisdiction

• Decision Judgment for the Respondent, the
  appeal is dismissed.
• Ratio (Majority) There are three important
  ratios to note about this case. They are
• 1) Labor Relations Are Usually Exclusively
  Within Provincial Jurisdiction The general
  rule is that labor relations falls within
  provincial jurisdiction.
• A) Exception Federal Undertaking The
  general exception is if the corporation is a
  federal undertaking.
• 2) Provincial Labor Laws Apply to Indian-Owned
  Corporations Not Involved In Indian
  Activities An Indian-owned corporation will
  be subject to provincial labor laws if its
  activities do not engage a core of
  Indianness.

27
Judicial Decisions On Jurisdiction

• 3) Notion of Federal Enclave Should Be
  Rejected There is no such thing as a federal
  enclave (i.e. an area of jurisdiction that
  falls exclusively to the federal government).
• Dissent Four B. should be considered a federal
  undertaking and therefore subject to federal
  labor laws. Four B. is owned and operated by
  Indians on Reserve Land in a building leased to
  it by the Band Council.

28
Judicial Decisions On Jurisdiction

• Dick v. R., 1985 2 S.C.R. 309.
• Facts The Appellant accused was charged under
  a provincial regulation for killing a deer during
  closed season in the traditional hunting grounds
  of his people. The Appellant claimed that the
  law did not apply because it violated the
  constitutional division of power because the law
  directly applied to Indians and was therefore
  ultra vires.
•  
• Issue Two issues were raised in this case.
  They were
•  
• 1) Does provincial legislation apply of its own
  force?
•  
• 2) What is the impact of s. 88 of the Indian
  Act?
•  
• Decision Judgment for the Respondent, the
  appeal was dismissed.

29
Judicial Decisions On Jurisdiction

• Ratio There are three important ratios to note
  about this. They are
•  
• 1) Provincial Laws of General Intent That
  Impair Status/Capacity Of Indians Do Not Apply
  On Own Force Provincial laws of general
  intent that impair the status/capacity of
  Indians does not apply of its own force.
•  
• 2) s. 88 of the Indian Act Applies to
  Provincial Laws That Could Not Be Directly
  Applied If It Is Of General Application s. 88
  of the Indian Act allows provincial laws of
  general application that cannot be directly
  applied because it impairs the status.
•  

30
Judicial Decisions On Jurisdiction

• 3) Disproportionate Impact Not Enough to
  Invalidate Law Must Look to See If Intent to
  Effect Aboriginal Interest A disproportionate
  impact caused by the legislation is not enough
  to invalidate the law, the courts must look at
  the intent of the legislation to effect an
  Aboriginal interest.

31
Judicial Decisions On Jurisdiction

• Delgamuukw v. British Columbia, 1997 3 S.C.R.
  1010.
• Facts The Appellant (Delgamuukw) were a group
  of Aboriginal hereditary chiefs who claimed
  ownership to separate portions of 58,000 square
  kilometers in British Columbia. The Respondent
  (Crown of British Columbia) argued that the
  Appellants did not have an interest or right to
  claim title to the land. After rejecting the
  Appellants oral argument (adaawk) because they
  did not comply with the ordinary rules of
  evidence, the trial judge found the Appellants
  had failed to meet the necessary evidentiary
  burden of proof to establish their claim and
  therefore dismissed it
•  
• Issue One of this issues was how does s. 88 of
  the Indian Act apply to Indians?
• Decision Judgment for the Appellant, the
  appeal was allowed.

32
Judicial Decisions On Jurisdiction

• Ratio There are four important ratios to note
  about this case. (for this class purposes).
  They are
•  
• 1) s. 91(24) Protects Core of Indianness
  Through Doctrine of Interjurisdictional
  Immunity Section 91(24) protects a core of
  Indianness (i.e. anything going to the status
  and/or rights of Indians) through the doctrine
  of interjurisdictional immunity, which means
  the provinces cannot enact legislation that
  affects this core.
•  
• 2) s. 91(24) Does Not Create Federal Enclaves
  Section 91(24) of the Constitution Act, 1867
  does not create a federal enclave of power,
  meaning that the provinces can enact laws of
  general application that apply to Indians.
•  

33
Judicial Decisions On Jurisdiction

• 3) Provincial Laws Of General Application
  Cannot Extinguish Aboriginal Title and/or
  Aboriginal Rights Under s. 35(1) Provincial
  laws of general application are not capable of
  extinguishing Aboriginal Title and/or
  Aboriginal Rights. This is a result of two
  facts. They are
• A) Extinguishing Title Requires Clear
  Language And Would Therefore Violate s.
  91(24) An extinguishment of Aboriginal
  Title and/or Aboriginal rights requires clear
  language and would therefore violate s.
  91(24) by directly applying to Indians.

34
Judicial Decisions On Jurisdiction

• B) Aboriginal Rights Are At Core of
  Indianness and Therefore Protected By
  Doctrine of Interjurisdictional Immunity
  Aboriginal rights are at the core of
  Indianness and therefore are protected by
  the doctrine of interjurisdictional
  immunity.
• 4) Section 88 of Indian Act Can Incorporate
  Provincial Laws Of General Application
  Section 88 of the Indian Act can incorporate
  provincial laws of general application
  provided they do not regulate Indians qua
  Indians.

35
Summary of Provincial Laws Of General Application

• Ways In Which Provincial Legislation is
  Applicable
•  
• 1) Apply Of Its Own Force (ex proprrio vigore)
  Provincial laws of general application can
  apply of their own force, except
•  
• A) Effect of the Law Directly Related To
  Indians or Lands Reserved For Indians
  Under this, provincial laws that are in
  direct relation to Indians or lands reserved
  for Indians do not apply to Indians (i.e. it
  legislates Indians qua Indians or Indian
  land qua Indian land).
•  
•  

36
Summary of Provincial Laws Of General Application

• Ways In Which Provincial Legislation is
  Applicable
• B) Law of General Application Impairs
  Status Or Capacity of Indians (i.e.
  Affects Core of Indiannness) Under
  this, provincial laws that have the effect of
  impairing the status or capacity of Indians
  (i.e. affects the core of Indianness) do
  not apply to Indians.
• 2) Referential Incorporation Through s. 88 of
  Indian Act Provincial laws can apply to
  Indians if they have been referentially
  incorporated into federal legislation through
  s. 88 of the Indian Act.

37
Conclusion

• Any Questions?