Aboriginal Law

This script highlights key areas of law that apply to Aboriginal people in BC, but this is a complex and changing area of law. The script cannot explain it in detail. For more information, check the various sources listed in the script.

Who is an Aboriginal Person and why does it matter?

Section 35 of the Constitution Act, 1982 recognizes three groups of Aboriginal peoples—Indians, Métis, and Inuit peoples. After the Daniels decision of the Supreme Court of Canada, “Indian” in section 91(24) of the Constitution Act, 1982 refers to all Aboriginal (Indian, Métis and Inuit) peoples of Canada. Before Daniels, the word Indian meant only status Indians, not all Aboriginal peoples.

Indians are people registered as Indians with the federal government under the Indian Act. They are called status Indians or registered Indians. But apart from this law, Indian is no longer used to describe Aboriginal people. A person must apply for Indian status and show that they have a right to be registered based on the Indian Act. It’s a complex process.

Indians deal with both the federal and provincial governments, depending on the subject. For example, land and criminal law involve the federal government, while healthcare and family law involve the BC provincial government. Laws on tax and wills and estates involve both governments.

Lands held by the federal government for the use and benefit of Indians are called reserves. Status Indians may receive rights and benefits for housing. They may also receive tax exemptions when working on reserves. Other benefits, such as health and education, may be available both on and off reserve.

Provincial laws that apply to non-Indians also apply to Indians, generally. Some provincial laws do not apply to Indians or reserve land; others apply through section 88 of the Indian Act. As well, some Indians are parties to treaties and land claims agreements that set out rights and responsibilities that may operate independently of the Indian Act. In other words, the legal position of Indians in BC involves a complex interplay of federal and provincial law, plus treaty and other rights.

Many First Nations are self-governing and control their own affairs. But if a First Nations community is still governed by the Indian Act, it is called a band. Indian status does not necessarily include band membership. Band membership depends on who controls the band’s membership list: Indigenous and Northern Affairs Canada or the band, but only the federal government can decide on status. The Nisga’a Lisims Government has its own citizenship laws. For more information about Indian status and band membership, see Indigenous and Northern Affairs Canada.

Inuit are people of the arctic. They deal with both the federal government and provincial government, the same as Indians do, depending on the subject. But the Indian Act does not apply to Inuit. Most Inuit are now participants in modern treaty and land claims agreements that govern their unique interests. There are relatively few Inuit in BC and they are not covered further in this script.

Métis are people of mixed aboriginal and non-aboriginal ancestry, but their precise legal definition is not certain. The Supreme Court of Canada, in a case called R v. Powley, outlined three broad factors to identify Métis rights-holders:

• self-identification as a Métis person;
• ancestral connection to an historic Métis community; and
• acceptance by a Métis community.

The court said that Métis does not include all people with mixed Indian and European heritage. It refers to people with mixed heritage who have also developed their own customs, way of life, and recognizable group identity separate from their Indian or Inuit and European ancestors.

How does criminal law apply to Aboriginal people?

Canada’s Criminal Code applies to all Aboriginal people. It applies to offences by status and non-status Indians, both on and off reserve. The Criminal Code tells 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.

Aboriginal people often experience disproportionate social problems throughout their lives. Judges must consider what are called Gladue principles when they sentence an Aboriginal offender (named after a 1999 Supreme Court of Canada case). Gladue principles apply when an Aboriginal person’s freedom is at risk, including bail and sentencing hearings. Gladue principles also apply to sentencing in appeals, parole hearings, Mental Health Review Board hearings, dangerous and long-term offender hearings, and civil contempt decisions.

Some courthouses have a Native Courtworker who can help Aboriginal people understand the court process, find a lawyer, and apply for legal aid. Aboriginal people who are convicted of an offence should ensure that their lawyer knows about their ancestry, so they can ensure Gladue factors are raised before sentencing, normally, in a Gladue Report or Gladue submissions. Many communities have culturally appropriate restorative justice programs. Native Courtworkers and lawyers should make best efforts to locate these programs to help their clients. See publications Your Gladue Rights and Gladue Rights at Bail and Sentencing from the Legal Services Society for more information.

Aboriginal people in BC who plead guilty to a crime and accept responsibility for their actions can apply to have their bail and sentencing hearings in First Nations Court. This is a criminal sentencing court that uses restorative justice and traditional ways to reach balance and healing. There may be limitations on the types of cases heard in First Nations Court. First Nations Court currently sits in Duncan, Kamloops, New Westminster, North Vancouver, and Prince George. They are usually held once a month at each location. The Provincial Court of British Columbia website has information about First Nations Court. The Legal Services Society factsheet What’s First Nations Court? also has more information.

How does family law apply to Aboriginal people?

Two BC laws—the Family Law Act and the Child, Family and Community Service Act —apply to Aboriginal families on and off reserve. But there are some important exceptions.

The Family Law Act deals with parenting arrangements, child and spousal support, and division of matrimonial property after family breakdown. But the parts of this law dealing with real property do not apply on reserves. So there is a gap in the law dealing with the ownership, division, and possession of real property on reserves and what happens when a spousal relationship ends, or a spouse dies.

The federal Family Homes on Reserves and Matrimonial Interests or Rights Act responds to this gap in two ways. First, as of December 16, 2013, it allowed individual First Nations to make their own matrimonial real property laws. First Nations that have done this are listed on the Indigenous and Northern Affairs Canada website.

Second, as of December 16, 2014, the federal law has provisional (or temporary) rules that apply until First Nations make their own laws. The provisional rules allow for three types of orders: emergency protection orders (not available in BC now); exclusive occupation orders; and orders on the division, ownership, and transfer of the interests or rights in real property under sections 29 to 33 of the federal law. If you live on reserve, and you need an order—especially an emergency order to protect yourself, your property, or your family—get legal advice.

Indigenous and Northern Affairs Canada has more on this topic. So does the Centre of Excellence for Matrimonial Real Property (hosted by the National Aboriginal Lands Managers Association).

Also, other rules may apply if an Indian band or First Nation has signed a modern treaty or has a matrimonial property regime under the First Nations Land Management Act.

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 authority from the province. They are called delegated Aboriginal Agencies. The province and the agencies negotiate how much of the Act the agencies will administer. So the First Nation may hire its own social workers and apply community standards, as far as 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 the agreements.

The key principles guiding all family laws are the best interests of the child plus protection and safety of the child. To decide on an Aboriginal child’s best interests and safety, courts look at the child’s community, extended family, and culture and try to preserve the cultural identity of aboriginal children.

How does tax law differ for status Indians?

Many people mistakenly think that status Indians do not pay income tax, GST, or property tax. But most status Indians pay tax unless they are exempt under sections 87 and 90 of the Indian Act. Under these sections, status Indians do not pay federal or provincial taxes on their personal and real property on a reserve. Personal property includes employment income earned on reserve. But income earned by Métis and Inuit is not eligible for this exemption. And income earned by status Indians off reserve is taxable.

Canadian courts have developed a series of “connecting factors” that must link a status Indian’s employment and investment income to the reserve for the income to be tax exempt. 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 some people think.

Like other levels of government, Indian bands can make property tax bylaws for people and businesses on reserves under section 83 of the Indian Act. Some Indian bands have a First Nations’ Tax (FNT) instead of GST. It can apply to alcohol, fuel and tobacco sold on reserve. Finally, modern treaties and land claims agreements cover all aspects of taxation.

How are wills and estates on reserve regulated?

Indigenous and Northern Affairs Canada deals with the wills and estates of status Indians who are “ordinarily resident” on reserve when they die. The Minister of Indigenous and Northern Affairs Canada is responsible for several things. These include granting probate (deciding if a will is legally valid and then granting approval of it to the executor), 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 Indigenous and Northern Affairs Canada must 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.

The BC Supreme Court deals with the wills and estates of status Indians not “ordinarily resident” on reserve when they die and with all non-status Indians and other Aboriginal people. The BC Public Guardian and Trustee is also sometimes involved with these cases.

A will that is valid under the Indian Act may not be valid under BC provincial law because some parts, such as the requirement for a witness’s signature, may differ. So even a status Indian ordinarily resident on reserve should make sure a will meets the BC rules and the Indian Act. Check the scripts on Wills and Estates (numbers 176 to 180) for more information. The Indigenous and Northern Affairs Canada estates program has more information (at 604.666.3931 in Vancouver and 1.888.917.9977 elsewhere in BC).

The federal Family Homes on Reserves and Matrimonial Interests or Rights Act also affects wills and estates on reserves. This area of law is complex, so if you are in this situation, get legal advice.

The Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms applies to every person in Canada, including Aboriginal people. But it 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 normally applies to band councils and other Aboriginal governments, but not always. Scripts 200, 230, and 232 have more on the Charter.

Section 35 of the Constitution Act, 1982 is not in the Charter, but it gives constitutional protection to existing Aboriginal and treaty rights and to rights acquired through treaty and land claim negotiations. Since 1982, a lot of common law on identifying and defining aboriginal and treaty rights and how they fit with Canadian society has developed. These rights are site and fact-specific. They are protected from conflict with the rights and freedoms protected by the Charter (by section 25 of the Charter). So far, aboriginal rights relate mainly 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. Before the Canadian Human Rights Act was amended in 2008, it prevented challenges of federal or band government decisions made under the Indian Act. The 2008 amendments applied to the federal government immediately. First Nations had a 3-year transition period, so the amendments applied to them as of 2011. Script 236 has more on human rights and discrimination.

British Columbia Human Rights Code

The BC Human Rights Code is like the federal Human Rights Act but it applies to the provincial government and businesses it regulates. The Human Rights Code prohibits discrimination by schools, stores, restaurants, and rental properties. The BC Human Rights Tribunal enforces the Code and has more information. As well, check script 236 and the BC Human Rights Clinic operated by the Community Legal Assistance Society.

Deciding 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 Universal 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. They are available on the website of the United Nations High Commissioner for Human Rights. The Human Rights Committee at the United Nations deals with discrimination complaints under international law, but it has no authority to enforce these laws in Canada. Canada has not signed the United Nations Declaration on the Rights of Indigenous Peoples.

More information on Aboriginal law

• Check the following websites:
  • Public information on Aboriginal law issues by Toronto lawyer, Bill Henderson.
  • Practice Points—papers on several topics from the Continuing Legal Education Society of BC.
• Confirm the status of individual First Nations in treaty negotiations with the BC Treaty Commission.
• Aboriginal Legal Aid in BC website—information and publications about issues important to Aboriginal people from the Legal Services Society, and information about the help that legal aid and other groups can give.

[updated February 2018]

The above was last reviewed for accuracy and edited by John Blois.

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