The legislative branch of government creates legislation (laws) that seem to dictate what we can and cannot do. Legislation empowers and protects rights that are included in legislation.
In Canada, legislative law includes both Crown rights and Crown-granted rights. Crown-granted rights include Indigenous-related rights (Fiduciary, Constitutional, Treaty and Aboriginal rights). Most Indigenous-related rights have not yet been included into legislative law and are still found in common law (court decisions). However, on another website page we have already discussed that Indigenous-related rights are part of the assimilation process of Indigenous Peoples.
For Indigenous Peoples in Canada, legislation excludes Indigenous sovereignty and sovereign Indigenous law, Immemorial rights, and Inherent Jurisdiction. By extension, all legislative law is a tool that in some way advances colonization and assimilation. Or put another way, this means that legislative law:
1. Protects Crown rights, Crown-granted rights and Crown objectives. Crown objectives include Indigenous land development and resource extraction; and,
2. Violates sovereign Indigenous Immemorial rights whenever they disagree with Crown or Crown-granted rights as the Crown advances its colonizing objectives.
All legislation (provincial, territorial and federal) can be organized into three groups according to the nature of its antagonism to Immemorial rights:
1. Indigenous-directed legislation:
2. Indigenous-related legislation: and,
3. Indigenous-omitted legislation.
Indigenous-Directed legislation:
Indigenous-directed legislation is legislation that is specifically directed to interfere with Indigenous sovereignty or replace sovereign Immemorial rights. Legislation in this group are directed at gaining control of people, land or people. Legislation generally involves governance models, land ownership, land use and resource revenues.
Most of this legislation is at the federal level. The end result of this legislation is the derailment of self-determination, the colonization of Indigenous lands and the assimilation of Indigenous Peoples. Example of legislation include: The Indian Act (1985),1 First Nations Elections Act (2014),2 Indian Oil and Gas Act (1985),3 and the First Nations Financial Transparency Act (2013).4 We will use the Indian Act as an example.
In brief, the Indian Act:
1. Defines who is eligible to be First Nation (sections 5-13);
2. Creates Crown-owned land reserves for First Nation communities (sections 18-29) that allow land use and occupation under the Doctrine of Discovery;
3. Defines a number of First Nation societal parameters (sections 34-73, 87-122) in lieu of self-determination; and,
4. Creates a Crown-Delegated Jurisdiction for First Nation band governance with a Chief and band council (sections 74-86) that replaces the Inherent Jurisdiction of Indigenous government.
The Crown’s purpose for the Chief and band council is to distribute funds, deliver fiduciary-related community programming and represent the community’s signing authority in dealings with Crown officials. All bylaws created by a band council must be approved by INAC before coming into force.
The band governance system is considered by many to be a departmental extension of the federal government into First Nation communities.
Indigenous-Related Legislation:
Indigenous-related legislation is legislation that affects a specific Immemorial right by exclusion of that right. Legislation is this group is found in both modern and historic legislation. Legislation generally involves resource and economic-related activities such as hunting,5,6 fishing, logging7 and mining.
Indigenous-related legislation can also involve pre-confederation legislative acts that are still in force through section 129 of the Constitution Act (1867).8
Indigenous-Omitting Legislation:
Almost all other legislation in Canada fails to somehow consider Indigenous sovereignty and Immemorial rights. This legislation has the potential to infringe on Indigenous sovereignty or Immemorial rights. Legislation in this group includes health, education, municipalities, domestic animals, wildlife conservation, farming and etc.
1. (1985) Indian Act 1985. https://caid.ca/IndAct010208.pdf
2. (2014) First Nations Elections Act. https://caid.ca/FirNatEleAct2014.pdf
3. (1985) Indian Oil and Gas Act. https://laws.justice.gc.ca/eng/acts/I-7/
4. (2013) First Nations Financial Transparency Act. https://laws-lois.justice.gc.ca/eng/acts/F-11.66/page-1.html
5. R. v. Goodon, [2008] MBPC 59, at para. 81 & 82. https://caid.ca/GooDec2009.pdf
81. “The limitation is prima facie unreasonable as it makes no accommodation for the Metis hunter. The Wildlife Act contains no reference to Metis people and makes no attempt to accommodate a constitutionally enshrined right. The Metis population is subject to the same regulations as others which means their hunting season is restricted, the quantity of food they can harvest is restricted without any consideration of their needs, and they must pay the same fees for hunting privileges. Metis people, like others, are properly subject to reasonable restrictions concerning safety and conservation, but the legislative regime has to reasonably accommodate their protected right. Here there is no attempt to do so which makes the regulations of the Wildlife Act concerning licensing to hunt unreasonable.” [Emphasis Added]
82. “For the same reasons I would find that the legislation imposes undue hardship and denies the Metis their preferred way of exercising the right to hunt.” [Emphasis Added]
6. R. v. Desautel, [2017] BCSC 2389, at para. 2 & 3. https://caid.ca/DesDecBCSC2017.pdf
2. “The defendant, Mr. Richard DeSautel is a member of the Lakes Tribe of the Colville Confederated Tribes (“CCT”) and lives on the Colville Indian Reserve in Washington State. On October 1, 2010, acting on the instructions of the Fish and Wildlife Director of the CCT to secure some ceremonial meat, Mr. DeSautel shot one cow-elk near Castlegar, British Columbia. After cutting, packing and storing the meat at a campsite near the Slocan River, Mr. DeSautel reported the hunt to British Columbia conservation officers. They arrived several days later and issued Mr. DeSautel an appearance notice.” [Emphasis Added]
3. “Mr. DeSautel now stands charged with hunting without a license contrary to s. 11(1) of the Wildlife Act, R.S.B.C. 1996, c. 488 and hunting big game while not being a resident contrary to s. 47(a) of the Act. In his defence, Mr. DeSautel maintains he was exercising his aboriginal right to hunt in the traditional territory of his Sinixt ancestors. That territory, in pre-contact times, extended north in the Kootenay region near Revelstoke and as far south in Washington State as Kettle Falls.” [Emphasis Added]
7. R. v. Marshall; R. v. Bernard, [2005] 2 S.C.R 220, 2005 SCC 43, at para. 2 & 3. https://caid.ca/MarBerDec2005.pdf
2. “In the Marshall case, Stephen Frederick Marshall and 34 other Mi’kmaq Indians were charged with cutting timber on Crown lands without authorization, contrary to s. 29 of the Crown Lands Act, R.S.N.S. 1989, c. 114, between November 1998 and March 1999. The logging took place in five counties on mainland Nova Scotia and three counties on Cape Breton Island, in the Province of Nova Scotia. The accused admitted all the elements of the offence, except lack of authorization.” [Emphasis Added]
3. “In the Bernard case, Joshua Bernard, a Mi’kmaq Indian, was charged with unlawful possession of 23 spruce logs he was hauling from the cutting site to the local saw mill in contravention of s. 67(1)(c) of the Crown Lands and Forests Act, S.N.B. 1980, c. C-38.1, as amended. Another member of the Miramichi Mi’kmaq community had cut the logs from Crown lands in the Sevogle area of the watershed region of the Northwest Miramichi River, in the Province of New Brunswick. Like the accused in Marshall, Bernard argued that as a Mi’kmaq, he was not required to obtain authorization to log.” [Emphasis Added]
8. (2002) McNeil, K., Extinguishment of Aboriginal Title in Canada: Treaties, Legislation, and Judicial Decision.p.24. https://caid.ca/ExtAboTitCan2002.pdf
“In the Chippewas of Sarnia case it was also argued that statutes of limitation enacted by colonial assemblies in Canada prior to Confederation were continued as federal law by s.129 of the Constitution Act, 1867, to the extent that they related to matters under federal jurisdiction, which includes "Indians, and Lands reserved for the Indians". Campbell J. accepted that s.129 had the effect of continuing the relevant statutes of limitation, which had been enacted by the legislatures of Upper Canada and the Province of Canada in 1834 and 1859, but rejected the contention that these statutes applied to Indian lands.” [Emphasis Added]
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