Aboriginal Law (No. 237)

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The legal position of Aboriginal people in British Columbia involves an interplay of federal and provincial law, plus treaty and other rights. Learn the basics of Aboriginal law in BC.

Understand the legal framework

Who is an Aboriginal person and why this matters

Section 35 of the Constitution Act, 1982 recognizes three groups of Aboriginal peoples — Indians, Inuit, and Métis peoples.

Indians

Under the Indian Act, the term Indian means a person registered with 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 show they have a right to be registered based on the Indian Act. (Apart from this law, 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 and non-Aboriginal ancestry. 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. 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 people deal with both the federal and provincial governments, depending on the subject. For example, land and criminal law involve the federal government, while 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 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.

Gladue rights

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.

Support for Aboriginal people in criminal matters

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 Your Gladue Rights and Gladue Rights at Bail and Sentencing from the Legal Services Society for more information.

First Nations Court

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 sits in selected communities. They are usually held once a month at each location. The Provincial Court of BC website has information about First Nations Court. The Legal Services Society factsheet “What’s First Nations Court?” also has more information.

How family law applies to Aboriginal people

Two BC laws dealing with families and children apply to Aboriginal families on reserve and off reserve. But there are some important exceptions.

Family breakdown

The Family Law Act deals with parenting arrangements, child and spousal support, and division of 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 and division 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, new in 2013, responds to this gap in two ways. First, it allows individual First Nations to make their own matrimonial real property laws. First Nations that have done this are listed on the federal government website. Second, the federal law has provisional (or temporary) rules that apply until First Nations make their own laws. 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.

Child protection laws

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.

Best interests of the child

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 tax law differs for status Indians

Many people mistakenly think 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. 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. 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 living on reserve affects wills and estates

Indigenous Services Canada deals with the wills and estates of status Indians who are “ordinarily resident” on reserve when they die. The federal government department 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. Indigenous Services 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. Our information on preparing a will (no. 176) covers the requirements for a will. The Indigenous Services Canada estates program has more information. Call 604-775-5100 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.

Human rights and Aboriginal people in BC

The Charter and the Constitution

The Charter of Rights and Freedoms applies to every person in Canada, including Aboriginal people. The Charter applies 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. See our information on the Charter (no. 230) for an overview of rights under the Charter.

Section 35 of the Constitution Act, 1982 gives constitutional protection to existing Aboriginal and treaty rights and to rights acquired through treaty and land claim negotiations. Since 1982, there have been extensive developments in the case law on identifying and defining Aboriginal and treaty rights and how they fit with Canadian society. So far, Aboriginal rights relate mainly to the use of natural resources and Aboriginal governance.

Human rights law

The Canadian Human Rights Act applies to the federal government and businesses that it regulates, such as airlines and banks. The Act applies to federal or band government decisions made under the Indian Act. The Canadian Human Rights Commission investigates complaints of discrimination and other violations of this law.

The BC Human Rights Code applies to the provincial government and businesses it regulates. It prohibits discrimination by schools, stores, restaurants, and rental properties. For more details, see our information on human rights and discrimination protection (no. 236).

Some Aboriginal people have relied on international human rights law to have their rights recognized, such as the Universal Declaration of Human Rights.

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.

Get help

With more information

Indigenous Services Canada is the federal government department supporting access to services for First Nations, Inuit and Métis.

Web: canada.ca/indigenous

The Aboriginal Legal Aid in BC website from Legal Services Society provides information and publications on issues important to Aboriginal people, and information about the help that legal aid and other groups can give.

Web: aboriginal.legalaid.bc.ca

Confirm the status of individual First Nations in treaty negotiations with the BC Treaty Commission.

Web: bctreaty.ca


[updated March 2018]

The above was last reviewed for legal accuracy by Rhaea Bailey, Legal Services Society.



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