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 apply specifically to Aboriginal people in BC. However this is a complex and evolving area of law, which the script cannot explain in detail. For more information, refer to the sources listed in some of the sections and at the end of the script.
Who is an Aboriginal Person and why does it matter?
An amendment to the Canadian constitution in 1982 defined the aboriginal peoples of Canada as including Indian, Inuit and Métis people.
An Indian is a person who is registered as an Indian with the federal government under the Indian Act. These persons are known as status Indians or registered Indians. Every Indian must apply for Indian status and demonstrate that they are entitled to be registered based on criteria set out in the Indian Act. This is a complex process that usually requires further assistance.
The primary legal relationship of Indian people is with the federal government. Lands that are held by the federal government for the use and benefit of Indian people are known as “reserves”. Status Indians may receive various rights and benefits for housing and tax exemptions when living on reserves; other benefits such as health and education may be available both on and off reserve. The basic unit of Indian organization and government is the “band”, but Indian status does not necessarily include band membership. Band membership depends on who controls the band’s membership list: Indian and Northern Affairs Canada or the band, but only the federal government can determine status. The Nisga’a Lisims Government have their own citizenry laws. For more information about Indian status and band membership, see the website of Indian and Northern Affairs Canada, at www.ainc-inac.gc.ca/br/is/index-eng.asp.
Many provincial laws do not apply to Indian people or reserve land; others apply through the operation of section 88 of the Indian Act. As well, some Indian people are participants in treaties and land claims agreements that set out rights and responsibilities that may or may not operate independently of the Indian Act. In other words, the legal position of Indian people in British Columbia requires consideration of the complex interplay of federal and provincial law, as well as possible treaty and other rights-based implications. As such, individual analysis and specialized advice is almost always necessary.
The term “First Nation” has come into popular use as a term of respect for the position of aboriginal people as the original inhabitants of Canada. However it has no consistent legal definition and its actual application is becoming uncertain as it is increasingly defined in various statutes. Generally speaking it applies to Indian bands or groups of bands and to Indian people, and it is used in that way in this script.
Inuit are the people of the arctic. They are administered by the federal government more or less as Indians but are not subject to the Indian Act. However most Inuit people are now participants in modern treaty and land claims agreements that govern their unique interests. There are relatively few Inuit people in British Columbia and they are not specifically considered further in this script.
The Metis are people of mixed aboriginal and non-aboriginal ancestry, but their precise legal definition is not certain. Section 35 of the Constitution Act, 1982 recognizes three groups of Aboriginal peoples – Indians, Métis and Inuit peoples. The Supreme Court of Canada in R v. Powley outlined three broad factors to identify Métis rights-holders:
- self-identification as a Métis individual;
- ancestral connection to an historic Métis community; and
- acceptance by a Métis community.
However, there still remains a great deal of ambiguity.
How does criminal law apply to Aboriginal people?
Canada’s Criminal Code applies to all aboriginal people, including offences by Indians whether on or off reserve. However, if convicted, the sentencing provisions 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 Aboriginal people are overrepresented in Canadian prisons and may often have experienced disproportionate social issues throughout their lives.
Some courthouses have a Native Courtworker who can help Aboriginal people understand the court process, find a lawyer, and apply for legal aid, if necessary. Aboriginal people who are convicted of an offence should ensure that their lawyer is aware of their ancestry so that it can be brought to the court’s attention before sentencing generally in the form of a Gladue Report. Many communities, both urban and rural, have Aboriginal restorative justice programs. Native Courtworkers and lawyers should check if these programs can help their clients.
How does family law apply to aboriginal people?
Two BC laws – the Family Relations Act and the Child, Family and Community Service Act – apply with some important exceptions to Aboriginal families, including Indian families on and off reserve. The Family Relations Act deals with child custody, access, support, maintenance, and division of matrimonial property after family breakdown. However the sections of this law dealing with matrimonial property do not apply on reserve lands and unless the Band or First Nation is a party to a modern treaty or has enacted a matrimonial property regime in accordance with the First Nations Land Management Act there may be no provision for these interests. The Indian Act also contains provisions for spousal support, but these are seldom applied,
The Child, Family and Community Service Act deals with child protection on or 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 Act also applies to First Nations with modern treaty agreements, subject to any special provisions in the individual agreements.
The key principle guiding all 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 Indian people?
Many people mistakenly think that Aboriginal people do not pay income tax, HST and property tax. In fact, most aboriginal people pay tax on the same basis as others in Canada, except for some limited exceptions provided to Indians on reserve under section 87 of the Indian Act. 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 when employment and investment income is tax exempt. For income to be tax exempt, a series of “connecting factors” must link the income to the reserve. This “connecting factors test” is fact-specific and beyond the scope of this script. Because of the high levels of unemployment on most Indian reserves, these tax benefits are not as significant as many people think.
Like other levels of government, Indian bands can make property taxation by-laws for people and businesses on reserves under section 83 of the Indian Act. Some Indian Bands have a First Nations’ Tax (FNT) replacing the federal portion of the HST. It can apply to alcohol, fuel and tobacco sold on reserve. Finally, modern treaties and land claims agreements contain exhaustive provisions regarding all aspects of taxation.
How are Indian wills and estates regulated?
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. The Minister of Indian Affairs is responsible for several things, including approving the will if there is one, appointing an administrator or executor to distribute the estate, 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 and a person who is not a member of the deceased person’s band may not be able to inherit the person’s house or land on a reserve.
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 to all non-status Indians and other aboriginal people. The BC Public Guardian and Trustee is also sometimes involved with these cases.
It is important to note that a will that is valid under the Indian Act may not be valid under BC provincial law since some provisions such as the requirement for a witness’s signature, may differ. Thus even a status Indian ordinarily resident on reserve should make sure a will meets the BC rules as well as the requirements of the Indian Act. Script numbers 176 to 180 provide more information on wills and estates and the Indian and Northern Affairs Canada estates program can be contacted at 604.666.3931 in Vancouver or 1.888.917.9977 elsewhere in BC.
What laws apply to the aboriginal rights, treaty rights and human rights of Aboriginal people in BC?
The Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is included in amendments made to the Canadian Constitution in 1982. The Charter’s guarantee of certain fundamental rights and freedoms applies to every person in Canada, including aboriginal people. These guarantees apply 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 will normally, but not necessarily always, apply to actions of band councils and other Aboriginal governments. Scripts 200, 230, and 232 provide more information on the Charter, which can be viewed at www.justice.gc.ca.
Section 35 of the Constitution Act, 1982, although not included in the Charter, gives constitutional protection to existing Aboriginal and treaty rights as well as to rights that are acquired through treaty and land claim negotiations. Since 1982 a substantial body of common law has developed governing the identification and definition of aboriginal and treaty rights and how they are reconciled with Canadian society as a whole. These rights are site and fact-specific and are protected from conflict with the rights and freedoms protected by the Charter through section 25 of the Charter. To date, aboriginal rights are primarily related to the use of natural resources and aboriginal governance. Treaty rights are written into specific treaty documents.
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 discrimination and other violations of this law. Amendments to the Human Rights Act that prevented the Indian Act from being challenged are being phased in since 2008. A copy of the Canadian Human Rights Act and information about the Canadian Human Rights Commission is at www.chrc-ccdp.ca and in 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 prohibits discrimination by 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.
Identifying 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 specific situations.
International Human Rights Law
Some Aboriginal people have relied on international human rights law to have their rights recognized. The main laws that have helped Aboriginals in Canada are the United Nations Declaration of Human Rights, the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights. These are available on the website of the United Nations High Commissioner for Human Rights at www.ohchr.org/EN/Pages/WelcomePage.aspx. The Human Rights Committee at the United Nations deals with discrimination complaints under international law but has no direct authority to enforce these laws in Canada. Canada is not a party to the United Nations Declaration on the Rights of Indigenous Peoples.
Where can you find more information on Aboriginal law?
- By checking the following websites:
- By confirming the status of individual First Nations in treaty negotiations at www.bctreaty.net/.
[updated July 2012]
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