Oh, Canada... - the "Honour of the Crown"
156 Years after the its Creation Indigenous Canadians Occupy Less than 0.3% of the Country’s 10 Million Square kms. The Majority of Which (89%) Remains Under the Control of The Government
The British North America Act received Royal assent on March 29, 1867 and was enacted on this day, July 1, of the same year by the British Parliament in London, England. The British North America Act, also known as the Constitution Act of 1867, did not specifically address the rights or treatment of Indigenous peoples in Canada. However, it did establish the framework for the creation of the Dominion of Canada, which had significant implications for Indigenous peoples.
One of these key impacts was the transfer of control over Indigenous affairs from the British Crown to the Canadian government. This shift in authority allowed the Canadian government to enact policies and legislation that affected Indigenous peoples' lives and lands.
Under the Act, the Canadian government gained the power to make laws related to "Indians and lands reserved for Indians." This authority was later codified in the Indian Act of 1876, which became the primary legislation governing Indigenous peoples in Canada. The Indian Act imposed a system of governance and control over Indigenous communities, including the establishment of reserves, the regulation of Indigenous identity, and the management of Indigenous lands and resources.
The Indian Act also introduced policies that had a detrimental impact on Indigenous peoples, such as the residential school system, which forcibly removed Indigenous children from their families and communities in an attempt to assimilate them into Euro-Canadian culture. Additionally, the Act restricted Indigenous peoples' rights to self-governance, land ownership, and cultural practices.
Through Treaties and the Duty to Consult Indigenous Canadians are expected to have some control, or at least input on the direction of the country. At least in those matters that pertain to the continuity of Indigenous lifestyles, including the ability to evolve those lifestyles in a direction of their own will. However those treaties have found themselves continuously under attack, or worse, outright ignored for a century and a half while the Duty to Consult guaranteed by the Canadian Constitution Act of 1982 seems less important with each passing decade. In fact, a 2018 decision by the Supreme Court against the Mikisew Cree First Nation in Alberta, which had argued that two omnibus budget bills introduced by the former Conservative federal government in 2012 affected its constitutionally protected treaty rights because they amended regulatory protections for waterways and the environment.
Chief Archie Waquan responds to the Supreme Court of Canada's decision on Courtoreille v. Canada in Edmonton, Alberta
The decision was welcomed by the federal government, which has argued such an obligation is far too onerous and slows down the legislative process considerably. In its 7-2 decision, the top court has ruled against the Mikisew Cree First Nation in Alberta, which had argued that two budget bills introduced by the former Conservative federal government in 2012 affected its constitutionally protected treaty rights, because they amended regulatory protections for waterways and the environment.
Those amendments, Mikisew argued, reduced government oversight of lands and waters and thus threatened its established right to hunt, trap and fish on their traditional territory. These rights were guaranteed by the Crown when it signed Treaty 8 in 1899, and were enshrined as constitutional rights after the passage of the Constitution Act of 1982.
A majority of the justices said Indigenous people can pursue other remedies — such as court action — if legislation affects their rights.
And yet while the court said there is no duty to consult during the legislative process, in a 5-4 decision the court found there is still an obligation on the government to act honourably and maintain the "honour of the Crown" when drafting legislation that could affect Indigenous people. The court did not specify how a government would fulfil its duty to act 'honourably', paving the way for future legal challenges to define the practical considerations of this longstanding legal principle
Aboriginal and treaty rights are supposedly protected under Sec. 35 of the Constitution, but it is starting to seem like that may not be enough. If we can’t count on the Duty to Consult, the existing Treaties, or the courts to uphold them what options are we left with? More unification between the bands is needed if we are to survive the next century and a half with our cultures intact. More Indigenous political presence is required on both the Provincial and Federal levels and any negotiation towards the end of the Indian Act must include some political power. If Quebec can have a political party on the National stage fighting for its sovereign rights why can’t we?
Why don’t we?
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