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{{Dial-A-Law TOC|expanded = rights}}
==Who is an Aboriginal Person and why does it matter?Understand the legal framework=='''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====Under the ''[http://canlii.ca/t/7vhk Indian Act]'', the term '''InuitIndian''' are people of the arctic. They deal means a person registered with both the federal government as an Indian (a “status Indian”) or who is entitled to be registered as an Indian. A person must apply for Indian status and provincial government, the same as Indians do, depending show they have a right to be registered based 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 (Apart from this scriptlaw, the word Indian is no longer used to describe Aboriginal people.)
====Inuit===='''Inuit''' are Indigenous people of the Arctic. They deal with both the federal government and provincial government (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 British Columbia, so this information does not cover the specific laws that apply to Inuit people. ====Métis==== '''Métis''' are people of mixed aboriginal Aboriginal and non-aboriginal Aboriginal ancestry, but their . 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 the term “First Nations” fits in=== '''First Nations''' is a term for Indigenous people of Canada who are not Inuit or Métis. The term includes both status and non-status Indians. 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'''Legal . Indian status does not necessarily include band membership. Band membership depends on who controls the band’s membership list: the federal government or the band. Only the federal government can decide on status. ===What is unique about the legal position of Aboriginal people in BC'''—Aboriginal ===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 health care 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 reserve 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.
===How criminal law applies to Aboriginal people===Canada’s '''First Nations'[http://canlii.ca/t/7vf2 Criminal Code]''—this is a term for Indigenous applies to all Aboriginal 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 The ''Indian ActCriminal Code''tells judges to consider all reasonable alternatives to imprisonment, it with particular attention to Aboriginal offenders. This is called a '''band'''. Indian status does not necessarily include band membership. Band membership depends on who controls Parliament’s response to 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]fact that Aboriginal people are overrepresented in Canadian prisons.
==How does criminal law apply to ==Support for Aboriginal people?in criminal matters====Canada’s 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 their lawyer knows about their ancestry, so they can ensure Gladue factors are raised before sentencing, such as 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 the publications ''[http://laws-loiswww.justicelegalaid.gcbc.ca/engpublications/acts/C-46/indexpub.html Criminal Codephp?pub=488 Your Gladue Rights]'' applies to all Aboriginal people. The and ''Criminal Code[http://www.legalaid.bc.ca/publications/pub.php?pub=487 Gladue Rights at Bail and Sentencing]'' tells judges to consider all reasonable alternatives to imprisonment, with particular attention to Aboriginal offenders. This is Parliament’s response to from the fact that Aboriginal people are overrepresented in Canadian prisonsLegal Services Society for more information.
====First Nations Court====Aboriginal people often experience disproportionate social problems throughout in BC who plead guilty to a crime and accept responsibility for 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 actions can apply when an Aboriginal person’s freedom is at risk, including to have their bail and sentencing hearings. in '''First Nations Court'Gladue'' principles also apply . This is a criminal sentencing court that uses restorative justice and traditional ways to sentencing reach balance and healing. There may be limitations on the types of cases heard in First Nations Court. First Nations Court sits in appeals, parole hearings, Mental Health Review Board hearings, dangerous and longselected communities. They are usually held once a month at each location. The Provincial Court of BC website has information about [http://www.provincialcourt.bc.ca/about-the-court/specialized-term offender hearings, and civil contempt decisionscourts#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.
====Child protection laws====The ''[http://bclawscanlii.ca/civixt/document/id/complete/statreg/11025_00 84dv Child, Family Law and Community Service 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 protection on reservesor off reserve. So there is a gap in the law dealing Some First Nations have their own child protection agencies with authority from the ownership, division, and possession of real property on reserves and what happens when a spousal relationship ends, or a spouse diesprovince. 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].
====Best interests of the child====The federal ''[http://key principles guiding all family laws-lois.justice.gc.ca/eng/acts/F-1are the best interests of the child plus protection and safety of the child.2/ Family Homes To decide on Reserves an Aboriginal child’s best interests and Matrimonial Interests or Rights Act]'' responds to this gap in two ways. Firstsafety, courts look at the child’s community, extended family, as of December 16and culture, 2013heritage, it allowed individual First Nations and tradition. They consider those factors in trying to make their own matrimonial real property laws. First Nations that have done this are listed on preserve the [http://www.aadnc-aandc.gc.ca/eng/1408981855429/1408981949311 Indigenous and Northern Affairs Canada website]cultural identity of Aboriginal children.
====The BC Supreme Court deals with Charter and the wills Constitution====The ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]'' applies to every person in Canada, including Aboriginal people. The Charter applies to laws and estates government actions, or the actions of status Indians not “ordinarily resident” on reserve when they die agencies very closely connected to government, such as school boards and with all non-status Indians labour relations boards. The Charter normally applies to band councils and other Aboriginal peoplegovernments, but not always. The BC Public Guardian See our information on [[Charter of Rights and Trustee is also sometimes involved with these casesFreedoms: Overview (Script 230)|the Charter (no. 230)]] for an overview of rights under the Charter.
====Human rights law====The federal ''[http://laws-loiscanlii.justiceca/t/7vh5 Canadian Human Rights Act]'' applies to the federal government and businesses that it regulates, such as airlines and banks.gcThe Act applies to federal or band government decisions made under the ''Indian Act''.caThe [http:/eng/acts/Fwww.chrc-1ccdp.2ca/ Family Homes on Reserves and Matrimonial Interests or Canadian Human Rights ActCommission]'' also affects wills investigates complaints of discrimination and estates on reserves. This area other violations of this law is complex, so if you are in this situation, get legal advice.
==Get help=Canadian ''Human Rights Act''===The ''[http://laws-lois.justice.gc.ca/eng/acts/H-6/index.html Canadian Human Rights Act]'' applies to the federal government and businesses that it regulates, such as airlines and banks. The [http://www.chrc-ccdp.ca/ 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 [[Human Rights and Discrimination Protection (Script 236)|236]] has more on human rights and discrimination.
===British Columbia ''Human Rights Code''With more information===The BC ''[http://bclaws.ca/civix/document/id/complete/statreg/96210_01 Human Rights Code]'Indigenous Services Canada''' is like the federal ''Human Rights Act'' but it applies government department supporting access to the provincial government and businesses it regulates. The ''Human Rights Code'' prohibits discrimination by schools, stores, restaurantsservices for First Nations, Inuit and rental propertiesMétis. The :Web: [httphttps://www.bchrt.bccanada.ca/ BC Human Rights Tribunal] enforces the ''Code'' and has more informationindigenous canada. As well, check script [[Human Rights and Discrimination Protection (Script 236)|236]] and the [http://www.bchrc.netca/ BC Human Rights Clinicindigenous] operated by the [http://www.clasbc.net/ Community Legal Assistance Society].
[updated March 2018]
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