Difference between revisions of "Aboriginal Law"

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Aboriginal Law (view source)

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==Who is an Aboriginal Person and why does it matter?==
==Who is an Aboriginal Person and why does it matter?==
Section 35 of the ''[http://laws-lois.justice.gc.ca/eng/CONST/page-15.html#h-38 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.
'''Three groups'''—section 35 of the ''[http://laws-lois.justice.gc.ca/eng/CONST/page-15.html#h-38 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 means all Aboriginal peoples of Canada (Indian, Métis and Inuit). Before ''Daniels'', it was uncertain if Indian meant only status Indians, and not all Aboriginal peoples.


'''Indians''' are people registered as '''Indians''' with the federal government under the ''[http://laws-lois.justice.gc.ca/eng/acts/I-5/ 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'''—under the ''[http://laws-lois.justice.gc.ca/eng/acts/I-5/ Indian Act]'', the term '''Indian''' means a person registered with the federal government as a '''status Indian''' or '''registered Indian'''. But apart from this law, the word 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 [http://www.aadnc-aandc.gc.ca/eng/1100100032374/1100100032378 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.
'''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:
'''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;
*self-identification as a Métis person;
*ancestral connection to an historic Métis community; and
*ancestral connection to an historic Métis community; and
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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.
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.
'''Legal position of Aboriginal people in BC'''—Aboriginal people 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.
Most provincial laws apply to Aboriginal people. Some provincial laws do not apply to Aboriginal people or reserve land; others apply through section 88 of the ''Indian Act''. As well, some Aboriginal people have signed 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 Aboriginal people in BC involves a complex interplay of federal and provincial law, plus treaty and other rights.
'''First Nations'''—this is a term for Indigenous people of Canada (both status and non-status Indians) who are not Inuit or Metis. 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 [http://www.aadnc-aandc.gc.ca/eng/1100100032374/1100100032378 Indigenous and Northern Affairs Canada].
This [https://www.ictinc.ca/blog/indigenous-peoples-terminology-guidelines-for-usage website] has more on terms and definitions.


==How does criminal law apply to Aboriginal people?==
==How does criminal law apply to Aboriginal people?==
Canada’s ''[http://laws-lois.justice.gc.ca/eng/acts/C-46/index.html 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.
Canada’s ''[http://laws-lois.justice.gc.ca/eng/acts/C-46/index.html Criminal Code]'' applies to all Aboriginal people. 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.
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 ''[http://www.legalaid.bc.ca/publications/pub.php?pub=488 Your Gladue Rights]'' and ''[http://www.legalaid.bc.ca/publications/pub.php?pub=487 Gladue Rights at Bail and Sentencing]'' from the Legal Services Society for more information.
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 ''[http://www.legalaid.bc.ca/publications/pub.php?pub=488 Your Gladue Rights]'' and ''[http://www.legalaid.bc.ca/publications/pub.php?pub=487 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 [http://www.provincialcourt.bc.ca/about-the-court/specialized-courts#FirstNationsCourt First Nations Court]. The Legal Services Society factsheet ''[http://www.mylawbc.com/pubs/pub.php?pub=489 What’s First Nations Court]''? also has 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 [http://www.provincialcourt.bc.ca/about-the-court/specialized-courts#FirstNationsCourt First Nations Court]. The Legal Services Society factsheet ''[http://www.provincialcourt.bc.ca/about-the-court/specialized-courts#FirstNationsCourt What’s First Nations Court?]'' also has more information.  


==How does family law apply to Aboriginal people?==
==How does family law apply to Aboriginal people?==
Two BC laws—the ''[http://bclaws.ca/civix/document/id/complete/statreg/11025_00 Family Law Act]'' and the ''[http://bclaws.ca/civix/document/id/complete/statreg/96046_01 Child, Family and Community Service Act]'' —apply to Aboriginal families on and off reserve. But there are some important exceptions.
Two BC laws—the ''[http://bclaws.ca/civix/document/id/complete/statreg/11025_00 Family Law Act]'' and the ''[http://bclaws.ca/civix/document/id/complete/statreg/96046_01 Child, Family and Community Service Act]''—apply to Aboriginal families on and off reserve. But there are some important exceptions.  


The ''[http://bclaws.ca/civix/document/id/complete/statreg/11025_00 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 ''[http://bclaws.ca/civix/document/id/complete/statreg/11025_00 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 ''[http://laws-lois.justice.gc.ca/eng/acts/F-1.2/ 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 [http://www.aadnc-aandc.gc.ca/eng/1408981855429/1408981949311 Indigenous and Northern Affairs Canada website].
The federal ''[http://laws-lois.justice.gc.ca/eng/acts/F-1.2/ 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 [http://www.aadnc-aandc.gc.ca/eng/1408981855429/1408981949311 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.
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.  


[https://www.aadnc-aandc.gc.ca/eng/1100100032553/1100100032557 Indigenous and Northern Affairs Canada] has more on this topic. So does the [http://www.coemrp.ca/ Centre of Excellence for Matrimonial Real Property] (hosted by the [http://www.nalma.ca/ National Aboriginal Lands Managers Association]).
[https://www.aadnc-aandc.gc.ca/eng/1100100032553/1100100032557 Indigenous and Northern Affairs Canada] has more on this topic. So does the [http://www.coemrp.ca/ Centre of Excellence for Matrimonial Real Property] (hosted by the [http://www.nalma.ca/ National Aboriginal Lands Managers Association]).
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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''.
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 ''[http://bclaws.ca/civix/document/id/complete/statreg/96046_01 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 ''[http://bclaws.ca/civix/document/id/complete/statreg/96046_01 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 [https://www2.gov.bc.ca/gov/content/family-social-supports/data-monitoring-quality-assurance/reporting-monitoring/accountability/delegated-aboriginal-agencies Delegated Aboriginal Agencies]. Those agencies and the province negotiate what the agency what each agency is responsible for. Plus, the BC Director of Child Welfare decides how much responsibility to delegate to each agency.  


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.
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, heritage, and tradition. They consider those factors in trying to preserve the cultural identity of Aboriginal children.  


==How does tax law differ for status Indians?==
==How does tax law differ for status Indians?==
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[updated February 2018]
[updated March 2018]


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