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 Métisare 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 Métiswere 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 Métiswere “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 Métiswere not “Indians” for the Natural Resource Transfer Agreement. Note: As of right now, the constitutional status of the Métisis undecided. Parliament claims that the Métisare not “Indians” while the provincial legislatures claim that the Métisare “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 Métisare“Indians”?

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 Appellant’s 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 Appellant’s 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 theLaw 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 ApplicationImpairs 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?