Script 237 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia. This script highlights key areas of law that differ for Aboriginal people in BC, but it does not explain them in detail. For more information, refer to the sources listed in some of the sections and at the end of the script. Also, which laws apply to cases involving Aboriginal people can be a complicated legal question. You should get legal advice about which laws apply to your situation. Who is a Status Indian and why does it matter?
A Status Indian is a person registered with the Canadian federal government under the Indian Act. Status Indians are also called registered Indians. People have to apply for Indian status – it’s not automatic. Whether a person can get Indian status depends on several things. The main one is evidence that they descended from Aboriginal people who the Canadian government recognizes as status Indians or who have the right to be status Indians. Status Indians may get various rights and benefits for on-reserve housing, health, and education, as well as tax exemptions. Indian status is not the same as band membership, which depends on who controls the band’s membership list: Indian and Northern Affairs Canada or the band. For more information about getting Indian status and band membership, see the website of Indian and Northern Affairs Canada, at www.ainc-inac.gc.ca. How does criminal law differ for Aboriginals?
Canada’s Criminal Code applies to all offences, both on and off reserve. The sentencing (penalty) parts of the Criminal Code direct judges to consider all reasonable alternatives to imprisonment, with particular attention to Aboriginal offenders. This is Parliament’s response to the fact that Aboriginals are overrepresented in Canadian prisons. Most courthouses have a Native Courtworker who can help Aboriginals understand the court process, find a lawyer, and apply for legal aid, if necessary. Aboriginal people should tell their lawyer of their ancestry, and tell their lawyer to tell the Judge of their ancestry – before the judge sentences them. Many communities, both urban and rural, have Aboriginal restorative justice programs. Native Courtworkers and lawyers should check if these programs can help their Aboriginal clients. How does family law differ for Aboriginals?
Two BC laws – the Family Relations Act and the Child, Family and Community Service Act – apply to Aboriginal families on and off reserve, with some important exceptions. The first law deals with child custody, access, maintenance, and division of matrimonial property after family breakdown. The sections of this law dealing with matrimonial property do not apply to reserve lands. The second law deals with child protection – both on and off reserve. Some First Nations have their own child protection agencies with delegated authority from the province. This means the First Nation hires its own social workers and applies community standards, to the extent this law allows. Most First Nation child protection agencies have authority on reserve only, but work closely with social workers from the Ministry of Children and Family Development to help families living off reserve. The key principle guiding both laws is the best interests of the child. To decide on an Aboriginal child’s best interests, courts look at the connection to the child’s community, extended family, and culture. How does tax law differ for Aboriginals?
Many people mistakenly think that Aboriginals do not pay income tax, GST, or PST. Actually, Aboriginals pay tax, just as other people do, unless section 87 of the Indian Act applies to their situation. Under this section, the interest of a status Indian or band in reserve lands, and the personal property of a status Indian or band situated on a reserve, are tax exempt. As well, section 87 exempts from tax the goods and services bought by status Indians at businesses located on Indian reserves. The exemption also includes goods bought elsewhere and delivered to the reserve. Canadian courts have defined what “property on reserve” means when dealing with employment and investment income, and whether it is exempt. For income to be tax exempt, a series of “connecting factors” must link the income to the reserve. The “connecting factors test” is beyond the scope of this script; but basically, it means that income earned on a reserve by a status Indian is tax exempt. Because of the high levels of unemployment on most Indian reserves, the tax benefit is not as large as many people think. Like other levels of government, Indian bands can make taxation by-laws for people and businesses on reserves. Who deals with Aboriginal wills and estates?
Indian and Northern Affairs Canada has authority to deal with the wills and estates of status Indians who are “ordinarily resident” on reserve when they die. This means that they were either living on reserve or temporarily away from their reserve when they died, for example, in a hospital or care home. The Minister of Indian Affairs is responsible for several things, including appointing an administrator or executor to look after the estate, approving the will if there is one, and responding to anyone who challenges a will or complains about an administrator or executor. The Indian Act has rules for transferring a person’s reserve property to heirs and beneficiaries. The Minister of Indian Affairs has to approve all transfers of reserve property. A person who is not a member of the dead person’s band may not be able to inherit the person’s house or land on a reserve. For more information, call Indian and Northern Affairs Canada at 604.666.3931 in Vancouver or 1.888.917.9977 elsewhere in BC and ask about the estates program. The BC Supreme Court has authority to deal with the wills and estates of status Indians not “ordinarily resident” on reserve when they die and all non-status Indians. The BC Public Guardian and Trustee is sometimes involved with these cases, as well. One very important point: a will that is valid under the Indian Act may not be valid under BC provincial law. So even if you are a status Indian ordinarily resident on reserve, you should make sure your will meets the BC rules for making a will, as well as the rules in the Indian Act. That will ensure that your wishes are respected when you die. For example, if you died while living off reserve and your will was not witnessed, it may not be valid under BC law, even though it was valid under the Indian Act. Refer to script numbers 176 to 180 for more information on wills and estates. Which Human Rights laws apply to Aboriginals in BC?
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms guarantees certain rights for Aboriginal people as well as certain rights and freedoms for every person in Canada. Section 35 of the Charter recognizes existing Aboriginal and treaty rights. These rights are guaranteed equally to both sexes. However, the Charter applies only to laws and government actions, or the actions of agencies very closely connected to government, such as school boards and labour relations boards. The Charter may not apply to some actions of band councils and other Aboriginal governments. Section 25 of the Charter recognizes that there may be other Aboriginal rights in treaties and land claim agreements. Refer to scripts 200, 230, and 232 for more information on the Charter. Also, view the Charter on the Department of Justice website, at www.justice.gc.ca. Canadian Human Rights Act
The Canadian Human Rights Act applies to the federal government and businesses that it regulates, such as airlines and banks. The Canadian Human Rights Commission investigates complaints of violations of this law. But the Commission cannot review certain actions taken under the Indian Act because the Human Rights Act prevents the Indian Act from being challenged. A copy of the Canadian Human Rights Act and information about the Canadian Human Rights Commission is at www.chrc-ccdp.ca. As well, refer to script 236. British Columbia Human Rights Code
The BC Human Rights Code is similar to the federal Human Rights Act but it applies to the provincial government as well as businesses it regulates. The Human Rights Code covers schools, stores, restaurants, and rental properties. A copy of the BC Human Rights Code, and information about the BC Human Rights Tribunal, which enforces the Code, is at www.bchrt.bc.ca. As well, refer to script 236 and the website of the BC Human Rights Coalition at www.bchrcoalition.org. Which human rights laws apply to cases involving Aboriginal people can be a complicated legal question. You should get legal advice about which laws apply to your situation. International Human Rights Law
Some Aboriginal people have relied on international human rights law to have their rights recognized. The main law that has helped Aboriginals in Canada is the International Covenant on Civil and Political Rights, available on the website of the United Nations High Commissioner for Human Rights, at www.unhchr.ch. Click on “International Law” and then on the title of the law. The Human Rights Committee at the United Nations deals with discrimination complaints under international law. Where can you find more information on Aboriginal law?
Check the following websites: - www.scowinstitute.ca – public information on Aboriginal law issues.
- www.cle.bc.ca/cle – click on “Practice points” and then on “Aboriginal Practice Points” for papers on several topics on the website of the Continuing Legal Education Society of BC.
[updated October 2007]
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