Aboriginal Issues Primer

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Yiwah
Aboriginal Issues Primer

I thought it might be a good idea to have a thread with some good background facts for people coming into this forum.  There is an awful lot left out of Canadian education when it comes to even the most basic of issues pertaining to Aboriginal peoples.  The majority of Canadians do not even understand Status, much less more complex issues like Aboriginal title, or duty to consult. 

Historical issues such as early interactions between Aboriginal peopls and Europeans is barely covered in schools, though if you're looking for Aboriginal content, that's generally where it stays.  Information on Residential Schooling took decades to come to light and become a nationally known (if not fully understood) fact.  It's no surprise then that the vast majority of Canadians have no idea how Aboriginal rights directly impact them (or don't). 

So, here we go!  A thread to be fleshed out!  If you wish to contribute, please do so, either with questions or information.  As much as possible, please provide sources (if you are adding content).

Issues Pages: 
Catchfire Catchfire's picture

Great idea, Yiwah, thanks!

ETA. I think I'll make this thread a sticky.

NDPP

Excellent!. Great start too - the term 'First Nation' is very dodgy, its provenance is the Department of Justice and DIAND and it was, according to a lawyer who was there, developed to avoid and circumvent international law in which there are only 'NATIONS' not 'First-Nations' which is a meaningless PC sounding term they now have everyone using. Actually I believe in domestic law 'First Nation' is now defined as an administrative unit of the Canadian government under the Indian Act. Anyway good thread can't wait for more.

Yiwah

(I apologise for the wonky formatting that I can't quite get rid of, but typing this up again ain't gonna happen)

The Métis

The Métis of Canada are a legally recognised Aboriginal people under s.35 of the Constitution Act of 1982.  However, there is still a lot of confusion about who the Métis are, and in many cases, outdated definitions of ‘mixed blood’ prevail in people’s minds.

The Métis did begin as the offspring of European men and Aboriginal women.  However, modern day Métis are not ‘created’ by intermarriage between indigenous peoples and non-indigenous peoples. 

“Over 300 000 people self-identify as Métis in Canada. Most Métis people today are not so much the direct result of First Nations and European intermixing any more than English Canadians today are the direct result of intermixing of Saxons and Britons. The majority of Métis who self-identify today are the direct result of Métis intermarrying with other Métis.” [1]

“The term “Métis” in s.35 of the Constitution Act, 1982 does not encompass all individuals with mixed Indian and European heritage; rather, it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, and recognizable group identity separate from their Indian or Inuit and European forebears.  A Métis community is a group of Métis with a distinctive collective identity, living together in the same geographical area and sharing a common way of life.” [2]

Defining the Métis has been a difficult legal exercise for many years.  At times, Métis persons have been included within the meaning of “Indians” in s.91(24) of the Constitution Act 1867.  Generally in those cases, the person in question was found to be leading an “Indian way of life”.  More often though, the Métis have not been considered Indian.  It wasn’t until R. v. Powley[3] that any sort of consistent legal definition was created.  That decision laid down a general groundwork to determine who is Métis.  It comprised essentially of three elements:

-          Self-identification as Métis

-          Is of historic Métis nation ancestry

-          Is a member of a contemporary Métis community

While this definition helps clarify the issue, it doesn’t completely do away with ambiguity.  “Métis communities” both historical and contemporary are being ‘validated’ on a case by case basis.  Intense amounts of research is being done all over Canada by Métis organisations, and by those with an interest in disproving Métis claims, in order to determine which communities can be legally defined as Métis or not.  There are some which have fairly settled status, but others, such as Métis communities on the East Coast, are very controversial. 

Métis rights

The Métis do not have Status.  Again, only Status Indians have Status.  At most, Métis people will have membership in a regional or national Métis organisation.  Membership rules vary from organisation to organisation, but the Powley decision has ensured that membership rules must conform to the legal definition, or the organisation risks undermining its own rights claims by giving membership to those who would not be found legally Métis.

The issue of Métis rights is an emerging one.  In cases dealing with First Nations people, an Aboriginal right has to undergo the Van Der Peet[4] test in order to be affirmed by the court.  That test looks at whether a practice existed pre-contact and was ‘integral to the distinctive culture’ of the particular group in question.  Some First Nations would have practiced commercial fishing, for example, while others didn’t until contact.  The Van der Peet test would only allow the former, not the latter to be recognised as an Aboriginal right.

Since the Métis didn’t exist until contact, the Powley decision used a ‘modified Van der Peet’ test, which asks if the practice existed pre-control (pre-Crown sovereignty, or perhaps pre-actual control even after sovereignty, that point hasn’t been decided yet). 

Essentially what this means is that there are no ‘blanket’ Métis rights.  So even though Métis rights are constitutionalised, the box is somewhat empty at the moment.

 


[1] Métis people (Canada), Wikipedia online: <http://en.wikipedia.org/wiki/M%C3%A9tis_people_%28Canada%29> , [accessed June.21, 2010].

[2] [url=http://www.canlii.org/en/ca/scc/doc/2003/2003scc43/2003scc43.html]R. v. Powley[/url], [2003] SCC 43.

[3] Ibid.

[4] [url=http://csc.lexum.umontreal.ca/en/1996/1996scr2-507/1996scr2-507.html]R. v. Van Der Peet[/url], [1996] 2 S.C.R . 507.

 

Yiwah

NoDifferencePartyPooper wrote:

Excellent!. Great start too - the term 'First Nation' is very dodgy, its provenance is the Department of Justice and DIAND and it was, according to a lawyer who was there, developed to avoid and circumvent international law in which there are only 'NATIONS' not 'First-Nations' which is a meaningless PC sounding term they now have everyone using. Actually I believe in domestic law 'First Nation' is now defined as an administrative unit of the Canadian government under the Indian Act. Anyway good thread can't wait for more.

I can't speak to the origin of the term, or what political issues motivate its use.  However, knowing how hard Canada and the international community fought the addition of 's' to "Indigenous People", it wouldn't suprise me at all that the term is strategic.

However, in practice, the term First Nations is in wide use among Aboriginal people (as is Aboriginal, another contentious term), so I don't have a huge problem with it in non-legal conversations.

Yiwah

Federal/Provincial Authority

Canada has never explained how it is that the Crown gained sovereignty over lands within Canada, it is simply a legal axiom.  All of the early theories have been soundly rejected in case law.  These lands were neither empty (terra nullius), nor conquered. Nonetheless, the legal ‘fact’ of Crown sovereignty is the starting point from which all Aboriginal law cases must begin.  (hence the limitations in approaching these issues from within the Canadian legal system).

However, there are two Crowns in Canada...federal and provincial.  So who has ‘authority’ to deal with Aboriginal people?

Section 91(24) of the Constitution Act 1867[1] gives exclusive legislative authority to the federal parliament over “Indians, and Lands reserved for the Indians.”

Well, glad that cleared everything up!  Obviously, the Feds are entirely responsible for all Aboriginal peoples.

Oh.  Wait.

While it is true that the Feds are in the main responsible for Indians, that does not exclude the provinces from having authority as well.  Section 88 of the Federal Indian Act[2] permits provinces to pass laws of “general application” that apply to Indians too.  So provincial Traffic Acts apply to Indians as well as non-Indians, even on Reserve.  What the provinces cannot do is pass laws which affect “an integral part of primary federal jurisdiction over Indians and lands reserved for the Indians”. 

But wait!  We’re only talking about Indians here!  What about other Aboriginal peoples?

Well, the Inuit are not governed by any piece of federal legislation at all.  The Métis are generally dealt with through the provinces, as the Federal government has not recognised any obligation to them. 

What this means is, the entire issue is a mess.

For Status Indians, education and health care are provided via the Federal government.  The Feds are not particularly set up to provide those services, however, as health and education are provincial issues.  What usually happens is that the Feds provide the funds, the mass of paperwork to fill out, and the individual has to access education/health through the provincial structure.  More and more, First Nations are assuming control over their own health and education via negotiated agreements with the Federal government.

There are major issues with access to health and education under this regime.  For Inuit and Métis peoples, access is entirely through the province.

I won’t go into more detail on this right now, it’s just a brief overview.  However, one more important thing to know is that Aboriginal peoples cannot surrender their lands to the Provincial Crown, only to the Federal Crown.  That is why British Columbia has suddenly realised it doesn’t actually own the land it’s sitting on.  The province believed it had extinguished Aboriginal title, only to find that they never had the power to do so in the first place.

Caught with their pants down.


[1] [url=http://www.canlii.org/en/ca/const/const1867.html#distribution]Constitution Act[/url], 1867, 30&31 Vict., c.3 (U.K.), (R.S.C. 1985, App. II, No.5)

[2] [url=http://www.solon.org/Statutes/Canada/English/I/I-5.html]Indian Act[/url], R.S.C. 1985, c. I-5.

 

Sven Sven's picture

Thank you for posting your definitional primer, Yiwah.  The definitional challenges in Canada appear to be similar to the definitional challenges under "Federal Indian Law" in the U.S.

I have three questions:

First, I have a question regarding this conclusion of yours: "'Aboriginal' peoples in Canada are constitutionally defined as status and non-status Indians, Inuit, and Métis." (emphasis mine)

But, earlier you said: "[S]ection 35 of the Constitution Act, 1982 defines the Aboriginal as including "the Indian, Inuit and Métis peoples of Canada"", that "Indian" is not defined in the Constitution Act but that "'Indian' is defined by the Indian Act explicitly", and that "non-status Indians are not 'Indian' according to the Indian Act."  You further noted that "whether or not [Indians] are 'Aboriginal' according to the Constitution Act, 1982 is an issue that has not yet been satisfactorily resolved."

So, given that, how have you concluded that "'Aboriginal' peoples in Canada are constitutionally defined as status and non-status Indians, Inuit, and Métis" (again, my emphasis)?

Second, it sounds like it's possible for one individual to be a "status Indian" under federal law yet not be a "member" in a band (because the band's membership definition may exclude that individual from membership) while, at the same time, another individual may be a "member" in that band but not be a "status Indian" under federal law.  Is that correct?  Has there ever been any movement for a change of the federal definition of (status) "Indian" to mean any individual who is a "member" of a band - such that the bands would decide who is and who is not a (status) "Indian"?

Third, is the term "First Nation" an informal term or does it have a legal meaning, too?  And, a related question: Is there any commonly-accepted definition of the term "First Nation"?

Yiwah

I wrote this last fall for a class, but also to have a ready-made, quick outline of status issues since it is one of the most misunderstood issues out there.

 

INDIAN STATUS

On this forum, my default term for First Nations, Metis and Inuit is 'Aboriginal'.  There are various terms that are used within the Canadian legal context, and because my purpose is to clarify the meaning of these terms, I do not wish to start using them interchangeably.  When speaking generally, I will use the term ‘indigenous’.  When referring to specific legal definitions, I will use the legislated terms.

Status versus Membership

Status is a legal definition, used to refer to indigenous peoples who are under federal jurisdiction[1].  The particular piece of federal legislation that defines status is the Indian Act[2], which was created in 1876[3] and has been updated many times since then.  Status then refers only to those indigenous peoples who fit the definition laid out in the Indian Act.

Membership is a much more complex issue.  It can refer to a set of rules created by an indigenous community, traditional or not, that define who is a member of that community.  It can also refer to those who are considered members of certain regional or national indigenous organisations.  It can be used in a much less formal and subjective sense, such as being part of an urban or rural indigenous group.

Obviously these definitions will overlap at times.  The most important thing to note is that having membership is not the same as having status.

Who is Aboriginal?

The term ‘Aboriginal’ came into legal existence in 1982 when it was defined in section 35 of the Constitution Act, 1982.[4] Section 35(2) defines the Aboriginal as including “the Indian, Inuit and Métis peoples of Canada”. [5] It is a general, catch all term that has gained legal status in Canada, and therefore is particular to the Canadian context.  The term ‘indigenous’ is another such catch all descriptor, but does not have the same national legal connotations.  Throughout this paper, I will use ‘Aboriginal’ in the legal sense only.

The Constitution Act, 1982 does not define ‘Indian’, ‘Inuit’ or ‘Métis’.  As we will see, the ‘Indian’ is defined by the Indian Act explicitly.  The other two terms, ‘Inuit’ and ‘Métis’ have been defined through case law, and have changed at times, depending on the interpretation and ruling of the court.  Even more confusing is the fact that non-status Indians are not mentioned in the Constitutional definition of ‘Aboriginal’, despite the fact that this growing group self-identifies as Aboriginal in census surveys.[6]  Therefore non-status Indians are not ‘Indian’ according to the Indian Act, but whether or not they are ‘Aboriginal’ according to the Constitution Act, 1982 is an issue that has not yet been satisfactorily resolved.  A common sense approach to this issue would allow us to use the legal term ‘Aboriginal’ to refer to non-status Indians as well, and any specific questions about who has jurisdiction or responsibility for this group can be addressed later on.

To sum up, ‘Aboriginal’ peoples in Canada are constitutionally defined as status Indians, Inuit, and Métis.  Being Aboriginal does not mean one has legal status; status refers only to Indians defined by the Indian Act.

Status

Status Indians are persons who, under the Indian Act are registered or are entitled to be registered as Indians.[7]  All registered Indians have their names on the Indian roll, which is administered by Indian and Northern Affairs Canada (INAC)[8].  Status Indians are entitled to certain programs and services not available to other Aboriginal peoples.

Bill C-31

There were various Federal policies over the years that caused status Indians to be removed from the Indian roll.[9] Some lost status when they gained a university degree, joined the Army, joined the priesthood, gained fee simple title of land, gained the right to vote, or married a non-Indian (this applied only to women).  Bill C-31[10]was passed in 1985, and was intended to reinstate status for those who had lost it.  In particular the Bill was supposed to reverse sexual discrimination that had cause Indian women who married non-Indians to lose their status while men who married non-Indian woman not only kept their status, but also passed status on to their wives.

Bill C-31 added new categories to the Indian Act, defining who is a status Indian, and who will be a status Indian in the future.  The legislation does not specifically refer to any sort of blood quantum, therefore there is no official policy that would take into account half or quarter Indian ancestry.  Nonetheless, ancestry continues to be a determining factor in who is a status Indian.

Section 6 of the Indian Act identifies two categories of status Indians, called 6(1) and 6(2) Indians.   Both categories provide full status; there is no such thing as half status.  The categories determine whether the children of a status Indian will have status or not[11].  A 6(1) Indian who marries a 6(1) or a 6(2) Indian will have 6(1) children.  A 6(1) Indian who marries a non-Indian will have children who have 6(2) status.  A 6(2) Indian who marries a non-Indian will have children with no legal Indian status.  If two 6(2) Indians marry, they will have children with 6(1) status.

One of the most criticised aspects of Bill C-31 was that it did not actually reverse the sexism inherent in denying women status if they married a non-Indian.  Women who had their Indian status reinstated under Bill C-31 have 6(1) status, but their children have 6(2) status.  Men who married non-Indian women and passed on status to their wives had children with 6(1) status.  Therefore, the children of ‘Bill C-31 women’ cannot pass on status to their children unless they marry a status Indian, while men who also married non-Indians have children who will pass on 6(2) status to their children.

Band Membership

There are a number of sub-categories that apply to status Indians.[12]  The first category is Band Membership. A Band is defined as a group of Indians for whom land has been set aside (a Reserve), or who have been declared a Band by the Governor General (no Reserve).[13] Some registered Indians do not belong to a Band.  This means that they are not entitled to any rights that would be held by members of a particular Band.  Nonetheless they still have status as ‘Indians’. 

What makes the issue of Band Membership even more confusing is that there are non-registered Indians who have Band Membership.  They have been admitted to the Band under its own membership rules, but do not have legal status as ‘Indians’. A person who fits the legal definition of ‘Indian’ who does not register as such, is not recognised as an Indian until s/he registers, and the Indian Act will not apply to that person until that point.  Therefore, membership in a Band does not guarantee one status, nor does lack of membership in a Band mean that one is not a legal ‘Indian’.

Treaties

Another sub-category distinguishes between Treaty and Non-Treaty Indians.  Treaties in this context refer to formal agreements between legal Indians or their ancestors and the Federal government, usually involving land surrenders.  The so called ‘numbered Treaties’[14]were signed between 1875 and 1921 and cover most of western and northern Canada.  British Columbia, with the exception of Vancouver Island is not covered by any historical Treaty. Other Treaties were signed in eastern Canada, but there are vast areas in the east that are still not covered by any Treaty. A number of modern (since 1976) Treaties have been signed in BC, and in other areas of the country, and negotiations are still underway to create more Treaties.  Some Treaties provided for Reserves and others did not.

Reserves

The final sub-category is between Reserve and non-Reserve Indians.  This does not refer to whether one actually lives on the Reserve or not, but rather describes whether a status Indian is affiliated with a Reserve.  Even though no historical Treaties were signed in British Columbia, there are many Reserves, while in the Northwest Territories which is covered by a numbered Treaty (and two Modern Treaties), there are no Reserves.

Conclusion

To sum up, status is held only by Indians who are defined as such under the Indian Act. Inuit and Métis do not have status, nor do non-status Indians.  There are many categories of status Indians, but these are legal terms only, and tell us what specific rights an indigenous person has under the legislation.  If an indigenous person is not a status Indian, this does not mean that he or she is not legally Aboriginal.  More importantly, not having status does not mean someone is not indigenous.


[1] J. S. Frideres, R. R. Gadacz, Aboriginal Peoples in Canada, 7th ed. (Toronto: Pearson Prentice Hall, 2005), at 25.

[2] [url=http://laws.justice.gc.ca/en/I-5/]Indian Act[/url], R.S.C. 1985, c. I-5.

[3] Supra note 1, at 23.

[4] [url=http://laws.justice.gc.ca/en/const/index.html]Constitution Act[/url], 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s.35.

[5] Ibid, s.35(2).

[6] C. Cook, J. D. Lindau eds, Aboriginal Rights and Self Government: The Canadian and Mexican Experience in North American Perspective. (Quebec: McGill-Queen’s University Press, 2000), at 103.

[7] Supra note 2, at ss. 6, 7, 8, 9.

[8] Indian Status, Indian and Northern Affairs Canada, online: Government of Canada, <http://www.ainc-inac.gc.ca/br/is/index-eng.asp>, [accessed Nov. 2, 2009].

[9] Supra note 1, at 28 – 36.

[10] Bill C-31, an Act to Amend the Indian Act.

[11] M. Furi, J. Wherrett, Indian Status and Band Membership Issues, Political and Social Affairs Division: Parliamentary Information and Research Service Online: <http://www.parl.gc.ca/information/library/PRBpubs/bp410-e.htm#achangestx> , [accessed Nov.4, 2009].

[12] Supra note 1, at 27.

[13] Supra note 2, s.2.

[14] Supra note 1, at 28.

 

Yiwah

Sven wrote:

Thank you for posting your definitional primer, Yiwah.  The definitional challenges in Canada appear to be similar to the definitional challenges under "Federal Indian Law" in the U.S.

I have three questions:

First, I have a question regarding this conclusion of yours: "'Aboriginal' peoples in Canada are constitutionally defined as status and non-status Indians, Inuit, and Métis." (emphasis mine)

But, earlier you said: "[S]ection 35 of the Constitution Act, 1982 defines the Aboriginal as including "the Indian, Inuit and Métis peoples of Canada"", that "Indian" is not defined in the Constitution Act but that "'Indian' is defined by the Indian Act explicitly", and that "non-status Indians are not 'Indian' according to the Indian Act."  You further noted that "whether or not [Indians] are 'Aboriginal' according to the Constitution Act, 1982 is an issue that has not yet been satisfactorily resolved."

So, given that, how have you concluded that "'Aboriginal' peoples in Canada are constitutionally defined as status and non-status Indians, Inuit, and Métis" (again, my emphasis)?

 

Thanks for catching that! It's overly confusing, and I'll edit to clarify.  What I meant by "constitutionally defiined as status and non-status Indians" was that there are two 'kinds' of Indians out there.  The ones that are defined by the Indian Act, and the ones that are excluded from official status.  Non-status Indians exist as a recognised group, but they have no yet explicitly been included in the category "Aboriginal". A lot of legal scholars believe they are there, but until a court makes a ruling on point, it's speculation.  I think I covered that well enough to not bother with muddying the waters with the sentence you've quoted, so out it goes!  Thanks again!

Sven wrote:

Second, it sounds like it's possible for one individual to be a "status Indian" under federal law yet not be a "member" in a band (because the band's membership definition may exclude that individual from membership) while, at the same time, another individual may be a "member" in that band but not be a "status Indian" under federal law.  Is that correct?  Has there ever been any movement for a change of the federal definition of (status) "Indian" to mean any individual who is a "member" of a band - such that the bands would decide who is and who is not a (status) "Indian"?

There have been MANY movements to remove Status from Federal power, and turn it over to the bands themselves.  Indian Act status is one of the lasting provisions though, even in areas where negotiated agreements have removed almost all other forms of Indian Act governance.  The Feds are adamant about controlling who has Status, because Status is directly linked to the amount of funding the Feds are obligated to provide.  Amending the Status provisions is a major focus among First Nations, but there has been little 'give' on the Federal side.

Sven wrote:

Third, is the term "First Nation" an informal term or does it have a legal meaning, too?  And, a related question: Is there any commonly-accepted definition of the term "First Nation"?

To answer your second question first, First Nations refers to "Indians", so it doesn't apply to Inuit or Metis.  The term DOES have legal meaning within legislation like the [url=http://www.ainc-inac.gc.ca/br/mrp/ip/ipn8-eng.asp]First Nations Land Management Act[/url], but only as a definition, and not as a term that applies beyond the legislation.

[url=http://www.justice.gc.ca/eng/dept-min/pub/legis/n14.html]INAC[/url] states that First Nations refers to both Status and non-status Indians, so it is more a term of art than a legal term.

Many bands have changed their name from 'x' Indian band to 'x' First Nation.

Joey Ramone

Thanks for this thread Yiwah.  I thought of starting one like this a few times but never got around to it. 

The categories into which Aboriginal peoples can and have been divided are almost endless.  At the risk of adding even more confusion, I think it's worth noting that s. 91(24) of the Constitution Act 1867 (formerly known as the 'BNA Act') provides that the federal Parliament has exclusive jurisdiction over "Indians and lands reserved for Indians".  This was the only mention of Aboriginal peoples in Canada's founding constitutional law, which is still in effect. There was no Indian Act in 1867 (first appeared in 1876), so clearly s. 91(24) cannot mean "status" Indians.  The courts have held long ago that Inuit are s. 91(24) "Indians" but it is still not clear whether Metis and non-status FNs are under exclusive federal jurisdiction.  It seems likely that non-status FN are since the feds have expanded and narrowed the Indian Act definition of "status" Indian many times over the years, which implies that Parliament has jurisdiction over all "Indians", whether status or non-status.

The terms "treaty Indian" and "status Indian" are often used interchangeably, but that is incorrect.  There are thousands of non-treaty status Indians, especially in BC, and many non-status FN people are "Treaty Indians" by virtue of their descent from Treaty signatories.

It's often thought too that that non-status Indians have more "FN blood" than non-status, but that's also incorrect.  There are many "status Indians" without any FN ancestry and there are thousands of full-blooded FN people who are not status and never will be.  That's because eligibility for registration depends upon descent from registered status "Indians", not blood quantum.

As far as I'm concerned, these divisions into "status" and "non-status" are utterly repugnant, but I don't see them ending any time soon, not only because the federal government needs to classify who is eligible for certain programs, but also because too many Indian Act band chiefs, and the AFN, also want to exclude non-status FN people from sharing in those programs and services. 

N.Beltov N.Beltov's picture

Yay!! Excellent idea, Yiwah.

Ghislaine

Excellent idea and thank you so much for taking the time post this Yiwah. 

Unionist

I'll add my three cheers. Long overdue.

 

writer writer's picture

Much appreciated.

Green Grouch

Thank you Yiwah!

Yiwah

Awesome addition, Joey Ramone. The definitional tangles are so utterly ridiculous and hard to follow that it's no wonder most people (including many Aboriginal people themselves) don't really understand it.  It literally took me three plus years of legal training to wrap my head around this crap and no matter how I've tried, I've been unable to boil it down to less than what I've posted here.

If anyone has specific questions, they can post them in this thread too...I'm not saying we'll be able to answer all questions (I hope people have gotten a sense of how complex the issues are), but it would provide some focus.  It's hard for me, sometimes, to know what people don't know.  If that makes sense.

Bacchus

I'll add my cheers to the chrous.!!  Excellant work and much needed

KenS

Great work. Have to digest later.

In the spirit of a sticky, and it not becoming cumbersome....

How about we keep this as much as possible to a primer that people can consult? There hasnt been any debate yet, but if people want to contest points, maybe do it in another thread? Then a summary could come back here?

Something like that.

And if it starts getting long, a moderator could always remove this comment and the various congrats.

Refuge Refuge's picture

Great thread.

I think a post on why there are tax exemptions, health care provided etc would be helpful as well as I run across a lot of people who don't understand why these exist.  

Yiwah

Alright, the tax exemption thing is so sticky...I may have to come back to that in a few days when I have some time again to post like crazy:)

Joey Ramone

Here's a bit about tax exemptions.  It's a complex area, so this is just a few notes.

It's widely believed by FN people that they were guaranteed immunity from taxation, as well as free health services and education, when they signed treaties agreeing to share their lands and resources with settlers.  Unfortunately, no treaties (which were all written in English) explicitly mention tax immunity.  In one case (Benoit, I think) the Federal Court found that Treaty 8 negotiators for the Crown promised tax immunity, making it a treaty right despite not being in the written text of the treaty.  That decision was overturned by the Court of Appeal.  No other cases that I'm aware of have found a treaty right to tax exemption.

The only officially recognized tax exemption is s. 87 (I think; I'm traveling and don't have my notes) which exempts the "personal property" of "status Indians" "situated on a reserve" from taxation.  This has been held to exempt the income of status Indians earned on reserve from tax.  There are a few other narrow exemptions, but all based on s. 87 of the Indian Act, and all dependent on linking the property or income of a status Indian to a reserve.

Yiwah

Joey's additions to this are excellent, and I'm very thankful for them.

 

I've got three things to add today.  Now, normally I write these things in a more composed manner, with lots of really juicy legal or statistical sources.  I am not source free right now, but this isn't as clean as I'd like, I'm just saying.  I came up with these three things to say on what I call the "Triumverate of Complaints about First Nations" which are: free housing, free education and tax exemptions.  I've been posting them on various news sites that are covering the G20 native protests, because the regular crowd of racists are out in force. 

 

Feel free to use these, or help clean them up and refine them for posting in those situations.  Please ask for clarification, and when I have time (or Joey or anyone else can answer) the clarifications will be provided.  Until then:

FREE HOUSING: “First Nations people are five times more likely than non-Aboriginal people to live in crowded homes.”

http://tinyurl.com/fncrowding

This has a direct and negative impact on health, including the spread of infectious diseases such as tuberculosis which occurs at 8 times the rate of non-Aboriginals in some years.

http://tinyurl.com/24s8drq

Almost half of the population living on Reserve live in houses in need of major repairs, compared to about 17% among the non-Aboriginal (off-Reserve) population. Even off Reserve, First Nations people are 2.5 times more likely to live in substandard housing than non-Aboriginal people.

So yes! Free housing, what a joy! Perhaps you too could live three families to one home, waiting 10 years or more to get a ‘free house’ that is nearly falling down. You know, if you don’t get TB and die first.

 


 

FREE EDUCATION: First Nations students, like all elementary and secondary students in Canada, receive a free education, which is paid for through taxes given form in per-student amounts. What First Nations schools do not receive, however, are funds for operating costs. Provincial schools do.

First Nations schools are actually UNDERFUNDED. They do not receive funds (as non-Aboriginal schools do) for maintenance of infrastructure, inclusion of libraries, curricular development, vocational training or recreational facilities, operational costs and so on.

http://tinyurl.com/fneducation

The fact of the matter is, First Nations students are funded LESS than non-Aboriginal students for elementary and secondary levels.

Right now, only 4000 INAC funded Aboriginal students graduate from post-secondary institutions per year. This is directly related to low high-school graduation rates.

http://tiny.cc/fned


NO TAXES: Aboriginal people do indeed pay taxes. The only tax exemption First Nations (not Metis, not Inuit) receive are under section 87. The exemptions cover provincial sales taxes (as First Nations are a federal concern) and federal/provincial taxes on property on reserve. If you live off reserve, you are ineligible for this tax exemption. You can only get an income tax exemption if you work on reserve.

http://tinyurl.com/fntaxes
http://www.gov.pe.ca/photos/original/pt_rtn123.pdf

There are no exemptions for all the taxes factored into fuel, the purchase of various goods (recycling taxes on tires, ‘sin’ taxes, the taxes incorporated into any sort of travel etc etc etc).

You find me all the people living large because of the tax exemptions for working on Reserve (which have the highest unemployment in Canada), and on property on Reserve. The majority of Aboriginal people are now urban, and pay taxes just like everyone else.

I mean, come on. Corporations get more tax exemptions than First Nations.

 


 

 

 

A BIT MORE ON THE HOUSING ISSUE

How is it that the majority of people in Canada can afford to buy houses?

Mortgages.

What is the most common way of securing a loan such as a mortgage?

Collateral. Assets. Something the bank can seize if mortgage is defaulted upon. Most often the property in question is the house or land itself.

First Nations people do not own the land on Reserve in fee simple. Their form of real property ownership is unique, sui generis, and that property cannot be seized by the bank.

The consequences of this should be immediately obvious, but in case they are not, this means that mortgages are not available to most First Nations people living on Reserve. Nor are lines of credit (a common method of effecting minor or major repairs on housing, often secured against the value of the house or land), nor are second mortgages (another common method of raising funds to effect repairs).

In some cases, the band will issue Certificates of Possession, and the band itself will act as a sort of guarantor in order for a First Nations person to secure a mortgage. This has not been very successful until quite recently, and it still is not being accepted in most areas.

Oh but I’m sure none of that would stop the pull-yourself-up-with-your-boostraps folks, who genuinely do it all themselves, and never ever rely on tax-funded programs, credit, or any other ‘hand out’. Gosh, First Nations must just be...well, whatever it is you're accusing them of being.

 

NDPP

An Indictment of Courts for Treason and Complicity in Genocide

http://bcgreen.com/~samuel/fraud+treason.html

Appears to be a point form affidavit/ legal history of Canadian colonization by lawyer/ scholar Dr Bruce Clark.

Catchfire Catchfire's picture

The off-topic posts have all been removed. This isn't a thread for discussion, but for gathering sources around the web and elsewhere that will provide an Aboriginal Issues 101 primer.

cnd.in.nl

This is great info, thanks. 

Not sure if this is off-topic, 
Yiwah, or any other member, are there decent, critical books or textbooks (or any publication really, incl. your own) one would recommend out there that cover the actual history of the Canadian aboriginals - including current socio-economic realities of communities? I'm looking to start 'from 0' to catch up on the knowledge I was deprived of growing up in Canada :) 

quizzical

the actual history of FN's across this land is different even if the result was the same. there are many many works across the land.  here is a overview of one of the one's i trust the most weirdly enough.

excerpt:

Quote:
Brilliant and often described as egotistical, Father Adrien-Gabriel Morice is second only to William Duncan as the most remarkable missionary in B.C. history. He lived in British Columbia for 19 of his best years. In the early 1900s, Morice established a printing operation from a cabin behind his church at Fort St. James, communicating with the outside world via the post office at Quesnel, and he produced a collection of his essays, printed in British Columbia, by his own Stuart Lake Mission Press, in 1902. Hence an argument can be made that British Columbia’s first truly independent publishing house was at Fort St. James and Father Morice began the tradition of self-publishing in British Columbia.

His best-known work in English, The History of the Northern Interior of British Columbia, Formerly New Caledonia, 1660–1880 (1904), is the classic history of the trading area known as New Caledonia where Morice spent most of his nineteen years in B.C. Interested in both anthropology and linguistics, he had talked to elderly chiefs to ascertain the pre-contact history of the region. Morice also benefited from the discovery of a trove of old letters and manuscripts by the Hudson's Bay Company manager Alexander C. Murray at Fort St. James. His resulting manuscript was praised so highly by Bernard McEvoy, who wrote for the Daily Province under the pen name Diogenes, that the Toronto publishing firm of William Briggs opted to publish the work unseen, with much success. The preface confidently states, “The record of these times has never been written, not to say published, and the only author who has ever touched on some of the events with which we will soon entertain the reader, Hubert Howe Bancroft, is so irretrievably inaccurate in his remarks that his treatment of the same might be considered well-nigh worthless.” The oral accounts in Morice’s ground-breaking history make clear how alcohol was deliberately introduced by the fur trade to weaken the resistance of aboriginals. This fundamental B.C. history was reprinted in 1978 by Interior Stationery as The History of the Northern Interior of British Columbia.

it's a fascinating book.

the history of my Mi'kmaq ancestors in Cape Breton is amazing. to me at least. people's caught between 2 colonist nations waring and they suffered hard. my grandma has inherited several chunks of the divided 7000 acres. it must stay in the family and can't be sold. this said the Mi'kmaq themselves as a whole have no treaty with the country of canada other than a peace and friendship accord.