Why First Nations need to be included:
Over the last four decade, the principles the Canadian governments used oversee, manage and
control Aboriginal Peoples has profoundly changed. Legislation now must reflect aboriginal
peoples. Supreme Court Cases have over turn many of the controlling natures of the laws and
Royal Commissions and International Agreement have place Canada on notice that Canada must
act differently concerning Aboriginal Peoples. This short description doesn’t take into account
the various treaties made to various aboriginal peoples in Canada. These treaties are considered
to be international in nature. For this description, we will use to term Aboriginal Peoples as it is
referred to in the Constitution Act mean Status Indians, Metis and Inuit Peoples.
Federal Government
Departments: Environment & Climate Change Canada, Fisheries & Oceans, AANAC,
Transport Canada & Parks Canada
Each of the acts mention refers to Aboriginal Peoples as part of the act and adds responsibilities
to Aboriginal Governments in these matters.
Legislation that applies to First Nations:
1. Constitution Act:
Def. Aboriginal as Status Indians, Metis and Inuit
2. Indian Act:
Outline the manner in which Canada will interact with Aboriginal Peoples
3. Environmental Protection Act.
Aboriginal communities and lands fall down Federal Crown Lands.
4. Environmental Assessment Act
All projects that use federal monies require EA’s. All funding to Aboriginal
communities must have EA as determine by AANAC.
5. Species At Risk Act
The SARA establishes the ATK subcommittee of COSEWIC and NACOSAR and
applies the Aboriginal Communities.
6. Navigable Waters Act
Almost all waters that flow through Aboriginal Communities fall under the
Navigable Waters Act.
7. Fisheries Act
The Fisheries Act specifically mention the obligation to culturally significant
species of Aboriginal Peoples.
8. Source Water Protection Act
Mandate the provincial government to work with Aboriginal Communities to
protect their Source Water
9. Drinking Water Protection Act
Mandates the provincial government to oversee safe drinking water in Aboriginal
Communities.
10. Waste Water Protection Act
Is under Federal Government control to oversee the best practice for waste water
treatment on Aboriginal Communities.
11. Transportation of Dangerous Goods Act, 1992.
The transport of dangerous goods including nuclear waste are regulated by the
Federal government and the Aboriginal Communities must be consulted.
12. Canada Shipping Act.
Similar to the Transport and Navigable Water Act
13. Hazardous Products Act.
The storage, use and properties apply to Hazardous Material and must be taken to
account when preforming an EA.
14. Pest Control Products Act.
Under this act Aboriginal Trappers can use to control pest e.g. beaver, coyotes or
hyperabundant deer populations.
15. Migratory Bird Act
Aboriginal Peoples must conform to this act but do have certain ceremonial or
cultural practices that may supersede the act but only if conservation is not
impaired.
16. Canadian National Parks Act
This Act acknowledges the place of aboriginal peoples in Canada’s Nation Parks,
the oldest park and the largest parks in Canada were established because
Aboriginal Communities want them to protect these sensitive habitats.
Significant Supreme Court Cases won by First Nations
1985 Gerin vs the Crown
The first strong declaration that the Crown has a fiduciary (trust-like) obligation in
dealing with the lands of Aboriginal Peoples
1990 Sparrow vs the Crown
Clarifies that fiduciary obligation in general and extends to any Crown dealings with
Aboriginal Rights.
1990 Sioui vs the Crown
Confirms that courts will follow liberal rules of treaty interpretation, resolving
ambiguities in favour of Aboriginal peoples, taking notice of historical context and facts.
Treaty obligations are unaffected by the passage of time or the lack of enforcement.
1996 Adams vs the Crown
Establishes that it is possible to have constitutionally protected Aboriginal Rights (to fish
for example) in places where Aboriginal title may not exist or cannot be proven.
1996 VanderPeet Trilogy
Three cases that confirm that Aboriginal rights are activities which are integral to a
people’s distinctive society at the time of first contact with Europeans. This can includes
commercial rights.
1997 Blueberry River Band vs Canada (Honour of the Crown)
-said that courts looking at surrenders and treaties will not take a tight technical approach,
but will enforce the Indian understanding of the transaction. To honour and give effect to
the intentions of Aboriginal Peoples.
1997 Delgum’uukw vs Auditor General of B.C.
Addresses Aboriginal title. Since Aboriginal title is an interest in the land within the
British Common Law system , the “magic date” for the courts to examine whether
Aboriginal title exists is the date of the assertion of British Crown sovereignty in an area.
The case also affirms that both Canadian law and the laws of the Aboriginal nations
involved must be considered in providing definition to Aboriginal right and title.
1998 Maldvik vs the Crown (the duty to Consult and Reasonably Accommodate)
Deals with the obligations of the Crown under modern treaties, the James Bay
Agreement. It requires good faith consultation where Aboriginal or Treaty Rights are
affected by government initiatives.
1999 Marshal 1 & 2 vs Crown
Confirmed that historical evidence and oral tradition that provide context to a transaction,
as well as guide to the way the Aboriginal peoples understood the treaty is always
admissible to help a court interpret a treaty. It confirmed that the Mi”kmaq have a treaty
right to gain a modest livelihood by fishing.
2001 Oosoyus vs the Crown
Confirms that the historical aboriginal rights to land extent to third party agreements.
Canadian Obligations to First Nations
1763 Royal Proclamation of 1763,
The King of England declared that all unceded, unsold land would be reserved to
Aboriginal Peoples. The Proclamation stated that land could not be purchased from the
First Nations without first being negotiated in public through the Crown.
1996 Royal Commission on Aboriginal Peoples
Established in 1992 to address many issues of Aboriginal status that had come to light
with recent events such as the Oka Crisis and the Meech Lake Accord. The commission
culminated in a final report of 4000 pages, published in 1996. The original report "set out
a 20-year agenda for implementing changes."
2007 United Nation Declaration on the Rights of Indigenous Peoples
The Secretary-General warmly welcomes the adoption of the Declaration on the
Rights of Indigenous Peoples as a triumph for indigenous peoples around the world.
He notes that this marks a historic moment when UN Member States and indigenous
peoples reconciled with their painful histories and resolved to move forward together
on the path of human rights, justice and development for all.
The Secretary-General calls on Governments and civil society to urgently
advance the work of integrating the rights of indigenous peoples into international
human rights and development agendas, as well as policies and programmes at all
levels, so as to ensure that the vision behind Declaration becomes a reality.
2012 Great Lakes Water Quality Agreement
The Parties, to help achieve the General Objectives, shall, in cooperation and consultation
with State and Provincial Governments, Tribal Governments, First Nations, Métis,
Municipal Governments, watershed management agencies, other local public agencies,
downstream jurisdictions, and the Public, identify and work to attain Specific Objectives
for the Waters of the Great Lakes, including:
2015 Truth and Reconciliation Commission
Getting to the truth was hard, but getting to reconciliation will be harder. It requires
that the paternalistic and racist foundations of the residential school system be
rejected as the basis for an ongoing relationship. Reconciliation requires that a new
vision, based on a commitment to mutual respect, be developed. It also requires
an understanding that the most harmful impacts of residential schools have been
the loss of pride and self-respect of Aboriginal people, and the lack of respect that
non-Aboriginal people have been raised to have for their Aboriginal neighbours.
Reconciliation is not an Aboriginal problem; it is a Canadian one. Virtually all aspects
of Canadian society may need to be reconsidered. is summary is intended to be
the initial reference point in that important discussion. Reconciliation will take some
time.
2017 Principles respecting the Government of Canada's relationship with Indigenous peoples
The Government of Canada is committed to achieving reconciliation with Indigenous
peoples through a renewed, nation-to-nation, government-to-government, and Inuit-
Crown relationship based on recognition of rights, respect, co-operation, and partnership
as the foundation for transformative change.
Having Affect - still used by Canada & USA in Landclaims
The Doctrine of Discovery, 1493. The Papal Bull “Inter Caetera,”
Papal Bulls of the 15th century gave Christian explorers the right to claim lands they
"discovered" and lay claim to those lands for their Christian Monarchs. Any land that was not
inhabited by Christians was available to be "discovered", claimed, and exploited. If the "pagan"
inhabitants could be converted, they might be spared. If not, they could be enslaved or killed.
The Doctrine of Discovery is basis for landclaims in Canada and the United States.
As Aboriginal you must prove you were on the land and using it e.g. like civilized people or you
don’t have a right to it.
So broadly speaking:
Involving Aboriginal Peoples is not a courtesy but the law and our responsibility as
Canadians. Let us work together in peace.
