Atleo calls for end of Indian Act within five years

charter.rights · July 21, 2010

Aboriginal rights are, under the current arrangement, separate, and different. They lack some rights that others have and they enjoy some that others don't. It is, in reality, an injustice of a sort.

Aboriginal rights are exempt from limitations of the Charter.

But back to the OP. The Indian Act does contain many rights that were agreed upon during the Royal Proclamation 1763 and other treaties, while at the same time has been amended from time to time to attempt to abrogate those same existing rights. Those of us who interpret and test the Indian Act all know that if it were tested against the Charter, it would fail completely. That is one particular reason why no one (including the Crown) want to touch it. It would open an entire constitutional change which would strengthen aboriginal claims in almost every sector of society (land claims, health and social benefits, perpetual care, infrastructure funding etc.

I would believe that if First Nations are consulted about becoming Canadian, then the Constitution would not only have to be amended, but the Indian Act filtered by the Charter BEFORE the Indian Act is repealed.

If the Indian Act is repealed without first going through a Constitutional conference, I would suspect that Canada would be worse off, given that Charter right exemptions contained in Sect.25 and 35, are far broader, and more open to court interpretation, than the refinements of the Indian Act.

Smallc · July 21, 2010

Aboriginal rights are exempt from limitations of the Charter.

:rolleyes: Yeah...I'm not going through this again. You'e a hopeless case.

Wild Bill · July 21, 2010

That was definitely on purpose. Constitutions aren't meant to be changed on a whim, an they're written as such.

That's not the case. Nobody is talking about "changed on a whim". Our amending formula is such that it is next to impossible to ever be changed AT ALL!

The very idea of writing such a document so that it is perfect from the onset, with no need to ever have any amendments to fit with changing times or history, is absurd! Constitutions and Charters of Rights are not Commandments written by God and handed out on Mt. Sinai. They are man made documents, subject to errors and expected to need changing over the years.

The American documents have not had hundreds of 'whimsicial' amendments! Just what their people found necessary. My point is that it doesn't matter what OUR people feel! We are NOT going to see any changes!

Shwa · July 21, 2010

That's not the case. Nobody is talking about "changed on a whim". Our amending formula is such that it is next to impossible to ever be changed AT ALL!

The very idea of writing such a document so that it is perfect from the onset, with no need to ever have any amendments to fit with changing times or history, is absurd! Constitutions and Charters of Rights are not Commandments written by God and handed out on Mt. Sinai. They are man made documents, subject to errors and expected to need changing over the years.

The American documents have not had hundreds of 'whimsicial' amendments! Just what their people found necessary. My point is that it doesn't matter what OUR people feel! We are NOT going to see any changes!

So are you saying that we haven't seen any Constitutional changes since 1982?

punked · July 21, 2010

Ummmmm he called for an end to it so that new distinctions between first nations and other Canadians can happen. Like them getting votes in parliament, and vetos on things the government does. Isn't that what he said when he wanted to end the Indian Act he wants to end to give first nations a larger say in the government as a whole.

Shwa · July 21, 2010

Ummmmm he called for an end to it so that new distinctions between first nations and other Canadians can happen. Like them getting votes in parliament, and vetos on things the government does. Isn't that what he said when he wanted to end the Indian Act he wants to end to give first nations a larger say in the government as a whole.

Yep, which would mesh in nicely with the overall policy towards self-government for Aboriginal people. Here is the INAC page on the topic:

Self-Government

Smallc · July 21, 2010

The American documents have not had hundreds of 'whimsicial' amendments! Just what their people found necessary. My point is that it doesn't matter what OUR people feel! We are NOT going to see any changes!

The Constitution in Canada is no harder to change than in the US. The reality is, there isn't a big push for any change right now. If there was, and it was really necessary, you'd see change. Most people don't share your view Bill, and that's something you have to deal with, not the rest of us.

Oh, and for the record, the Constitution has been changed 10 times since 1982. There were 6 (oops) failed attempts at change in the same amount of time.

Edited July 21, 2010 by Smallc

Smallc · July 21, 2010

Ummmmm he called for an end to it so that new distinctions between first nations and other Canadians can happen.

Well, he can think what he wants. That definitely won't happen. People around the world are becoming more equal, not less.

Shwa · July 21, 2010

The Constitution in Canada is no harder to change than in the US. The reality is, there isn't a big push for any change right now. If there was, and it was really necessary, you'd see change. Most people don't share your view Bill, and that's something you have to deal with, not the rest of us.

Oh, and for the record, the Constitution has been changed 10 times since 1982. There were 3 failed attempts at change in the same amount of time.

No thumbs up icon, but thumbs up anyways!

g_bambino · July 21, 2010

That's not the case. Nobody is talking about "changed on a whim". Our amending formula is such that it is next to impossible to ever be changed AT ALL!

Er... The Charter was amended in 1993.

Smallc · July 21, 2010

Sorry, my mistake, there have been 6 failed amendments....I just looked it up.

Edited July 21, 2010 by Smallc

g_bambino · July 21, 2010

That definitely won't happen. People around the world are becoming more equal, not less.

Yet, the Royal Proclamation of 1763 is a part of our constitution and seems to still quite clearly define lands reserved "under [the Queen's] Sovereignty, Protection, and Dominion, for the use of the said Indians" as "not included within the Limits of Our said... Governments." This clause has always made me wonder on what grounds the federal and provincial governments base the belief they can govern First Nations reserves.

Smallc · July 21, 2010

Well, there is argument that the reserves are still subject to federal law (just as the provinces are), but I agree that they shouldn't be subject to provincial law. The kind of change I'm talking about would mean altering many, many documents, and would probably not be a short or easy task.

g_bambino · July 21, 2010

Well, there is argument that the reserves are still subject to federal law.

Right, but how? Unless, by "government" the Royal Proclamation means specifically the Queen-in-Council, whereas the Queen-in-Parliament and the Queen-on-the-Bench (neither of which are technically the government) have jurisdiction over First Nations reserves. That would mean Canadian laws apply on FNs territory, but Orders-in-Council don't. Anyone know if that's the case?

Smallc · July 21, 2010

Well, since the Crowns power is in practice exercised by executive, I don't see why there should be a problem. Perhaps we'll find out for certain some day. Perhaps I'm misinterpreting things. I simply find it hard to understand who would govern the first nations in the name of the Crown if not the federal government.

Edited July 21, 2010 by Smallc

g_bambino · July 21, 2010

I simply find it hard to understand who would govern the first nations in the name of the Crown if not the federal government.

The Queen in an aboriginal council?

Smallc · July 21, 2010

The Queen in an aboriginal council?

I'm not sure if such a system is really set up though. Who would be on the council? How would it work? Would there be more than one council? I really don't know. the Indian Act does give the federal government power over the reserves, and so far, that hasn't been struck down, so I can't help but think that the current arrangement is constitutional.

ToadBrother · July 21, 2010

I like it. Abolish the act, and remove the distinction between aboriginals and everyone else. What's done is done, it's time to move on.

That would require a constitutional amendment. Their status is enshrined in a number of constitutional documents; the Constitution Act, 1982 and the Royal Proclamation of 1763 being the key ones, but there are also numerous treaties, and the Supreme Court's requirement that all levels of government negotiate treaties where none are present. Getting rid of the Indian Act would not in any way eliminate any of this.

g_bambino · July 21, 2010

I'm not sure if such a system is really set up though. Who would be on the council? How would it work? Would there be more than one council? I really don't know. the Indian Act does give the federal government power over the reserves, and so far, that hasn't been struck down, so I can't help but think that the current arrangement is constitutional.

There's no such system to my knowledge, but I've contemplated the possibility of it. Essentially, it would be another jurisdiction (or jurisdictions) within the country - with a privy council, legislature, and courts - deriving its sovereignty and authority from the Canadian Crown in the same way the federal and provincial spheres presently do. Nunavut comes close to this, but still remains subordinate to Ottawa as a territory, the Commissioner therein representing the Queen in her federal Council of ministers as opposed to being a personal and direct representative of the Queen herself.

The validity of the Indian Act is something I've always questioned, given what I pointed out in the Royal Proclamation of 1763.

ToadBrother · July 21, 2010

Yet, the Royal Proclamation of 1763 is a part of our constitution and seems to still quite clearly define lands reserved "under [the Queen's] Sovereignty, Protection, and Dominion, for the use of the said Indians" as "not included within the Limits of Our said... Governments." This clause has always made me wonder on what grounds the federal and provincial governments base the belief they can govern First Nations reserves.

Well, since both the provinces and the Federal governments advise the Queen on these matters anyways, it all comes to the same thing.

William Ashley · July 21, 2010

Wow, this is a breakthrough, I hope the gov't listens. Didn't Chretien write a white paper on abolishing the Indian Act during Trudeaus' reign?

http://www.ctv.ca/CTVNews/Canada/20100720/atleo-indian-act-100720/

Ending the act really ain't a posibility in the near future - what I think ought to be done though, is consulatation with first nations peoples and band cheifs, and lobbies and interest groups to get a list of things they want.

Then look at the public and see where the conflicts of interest exist.

I don't see an issue with providing for first nations communities of expanded size or capacities - I actually think that renegotiating treaties with context to the current situation - is something that is doable - for those natives who agree to the process or change of status. Eg. I firmly beleive that when a dam runs a certain way I am on native land and when it runs the other it is within treaty - due to the "watershed" changing course. My home is at the tip of old upper canada and hudson bay in the mouth of a river that is the transition point of the watershed - but it differs based on how the dam is operating. Sandwiched between two native reserves, with no deed insurance for native land claims. *--* Thing is though I respect native groups - and really do believe due to cultural differences and coercion most of the treaties really don't hold weight as legal. It was more or less invasion and occupation - at a certain point - and early europeans actually abducted and worse native groups. So the whole ethics thing ain't too based legally. They wouldn't stand up to todays contract laws. All in all I think some options should be provided to native groups. What all these are would need to be determined but much like the Quebecqois I wouldn't rule out setting out atonomous land areas for sovereign exercise of government - Canada has a lot of land, and it need not hoard land when it can instead allow for a more free society to evolve. By setting aside areas that do not disturb other segments of the greater Canadian society, nor destabalize previously existing systems. Allowing them to build free isn't wrong just by providing them land, it was those charters that started the new world colonies that later became nations. (I wouldn't even say the social responsibility ends within Canada - but sale of land for establishment of states held in alodial capacity would be a service to the global community - for instance instead of taking in refugees, give them a tract of land to start their own state with certain stipulations - canada is huge - canada can do this - things would have to be well worked out - but it could be profitable - canada basically does this for extraction rights to a certain extent so why not settlement rights ) I think cutting down federal outlays is important, and increasing global or domestic productivity by giving land areas to groups to exercise political authority in a zone will not only reduce outlays but increase potentials for trade or value of land use. I think the more regional political influence canada has - even if it means a quebecois seat and vote at the UN and a first nations seat and vote at the UN. The federal government taking proactive steps to develope how the situation evolves while appeasing those groups and protecting them, without rockets being fired into Canada is a good first start - this may be at first like creating new "provinces or special districts" in Canada it already is that way to a certain extent, and there is no reason why groups who would like to give more powers to their reserves on the global stage ought not to be able to have them - we do need to do so in an organized manner though, and much like groups like the CIS - a secondary federation or brotherhood of nations needn't not exist. The end point is though that NOT all natives desire this, so the act need continue to serve those native groups who desire to be within it.

Edited July 21, 2010 by William Ashley

g_bambino · July 21, 2010

Well, since both the provinces and the Federal governments advise the Queen on these matters anyways, it all comes to the same thing.

Not really, since the Proclamation specifically says Indian lands are "not included within the Limits of Our said... Governments." That, to me, would say that the cabinets, at least, cannot advise the Queen on what to do regarding FNs reserves. And, yet, when FNs chiefs present a petition to the Queen, she passes it to her Canadian federal ministers... I'm baffled. :blink:

[c/e]

Edited July 21, 2010 by g_bambino

William Ashley · July 21, 2010

Not really, since the Proclamation specifically says Indian lands are "not included within the Limits of Our said... Governments." That, to me, would say that the cabinets, at least, cannot advise the Queen on what to do regarding FNs reserves. And, yet, when FNs chiefs present a petition to the Queen, she passes it to her Canadian federal ministers... I'm baffled.

[c/e]

privy councillors arn't limited in what they can advise the Queen on. Certain powers may exist, or the context of acting on that counsel. There is of course - normative exercise of powers. context, but 'the state is not limited'

The Oath of a Privy Counsellor
You do swear by Almighty God to be a true and faithful Servant unto The Queen’s Majesty as one of Her Majesty’s Privy Council. You will not know or understand of any manner of thing to be attempted, done or spoken against Her Majesty’s Person, Honour, Crown or Dignity Royal, but you will lett and withstand the same to the uttermost of your power, and either cause it to be revealed to Her Majesty Herself, or to such of Her Privy Council as shall advertise Her Majesty of the same. You will in all things to be moved, treated and debated in Council, faithfully and truly declare your Mind and Opinion, according to your Heart and Conscience; and will keep secret all matters committed and revealed unto you, or that shall be treated of secretly in Council. And if any of the said Treaties or Counsels shall touch any of the Counsellors you will not reveal it unto him but will keep the same until such time as, by the consent of Her Majesty or of the Council, Publication shall be made thereof. You will to your uttermost bear Faith and Allegiance to the Queen’s Majesty; and will assist and defend all civil and temporal Jurisdictions, Pre-eminences, and Authorities, granted to Her Majesty and annexed to the Crown by Acts of Parliament, or otherwise, against all Foreign Princes, Persons, Prelates, States, or Potentates. And generally in all things you will do as a faithful and true Servant ought to do to Her Majesty

SO HELP YOU GOD

current

I, [name], do solemnly and sincerely swear (declare) that I shall be a true and faithful servant to Her Majesty Queen Elizabeth the Second, as a member of Her Majesty's Privy Council for Canada. I will in all things to be treated, debated and resolved in Privy Council, faithfully, honestly and truly declare my mind and my opinion. I shall keep secret all matters committed and revealed to me in this capacity, or that shall be secretly treated of in Council. Generally, in all things I shall do as a faithful and true servant ought to do for Her Majesty.

Edited July 21, 2010 by William Ashley

ToadBrother · July 21, 2010

Not really, since the Proclamation specifically says Indian lands are "not included within the Limits of Our said... Governments." That, to me, would say that the cabinets, at least, cannot advise the Queen on what to do regarding FNs reserves. And, yet, when FNs chiefs present a petition to the Queen, she passes it to her Canadian federal ministers... I'm baffled.

[c/e]

I think you're probably reading the Proclamation far more literally than any court would. This, in a way, is no more baffling than, say the Crown Dependencies (Isle of Mann and the Channel Islands). In theory, at least, the British cabinet has no direct say in the Crown Dependencies (though I believe, constitutionally, Parliament can force through legislation, though this seems to be somewhat of an open question). And yet, because the UK does effectively control Crown Dependency citizenship, defense, making of treaties and such, the Queen has little choice in most cases but to pass on any particular issues with them to Her Ministers.

In other words, you have two competing constitutional directives, if you will, and the ultimate solution is that the demands of responsible government require the Queen to act upon the advise of Her Ministers, even if, as far as the status of Indians in Canada or governance of the Channel Islands, it would seem Her constitutional position would free Her from the normal constraints on her use of the Royal Prerogative in cases where there is a conflict.

g_bambino · July 21, 2010

privy councillors arn't limited in what they can advise the Queen on.

Well, there's certainly a limit on what the Queen can do on their advice. A Canadian privy councillor could tell her who to appoint as Governor General of Australia. Doesn't mean she can carry out that direction, though.

[sp]

Edited July 21, 2010 by g_bambino