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104-680: The Kitigan Zibi Anishinabeg are governed by a band council elected according to an election system based on Section 11 of the Indian Act . For 2020-2022 tenure, the chief of this council is Dylan Whiteduck. According to Statistics Canada 's 2011 Census , on a total population of 1,395, 36.2% knew an indigenous language. More precisely, 25.4% had an indigenous language still spoken and understood as first language and 21.1% spoke an indigenous language at home. Regarding Canada's two official languages , 43% knew both English and French , 54.8% knew only English and 2.1% knew only French. Concerned about

208-741: A preamble declaring that the three provinces New Brunswick , Nova Scotia , and the Province of Canada (which later became Ontario and Quebec ) have requested to form "one Dominion ...with a Constitution similar in Principle to that of the United Kingdom ". This description of the Constitution has proven important in its interpretation. As Peter Hogg wrote in Constitutional Law of Canada , some have argued that, since

312-409: A different set of Indigenous rights. "Enfranchisement" derives from the idea of "franchise", which has gradually been degraded as "vote". Indigenous people with the franchise became official citizens of Canada (or British subjects before 1947), were allowed to vote for representatives, were expected to pay taxes, and lived "off-reserve". By contrast, groups of people who lived on a reserve were subject to

416-532: A different set of rights and obligations. One needed to descend from an Indian to be allowed to live on a reserve. The tenure of land in a reserve was limited to the collective, or tribe, by virtue of a Crown protectorate . Interactions between enfranchised citizens and Indians were subject to strict controls; for example, the enfranchised were forbidden by the Royal Proclamation of 1763 to traffic in alcohol or land with Indians. The Crown (in this case

520-679: A greater quality of status than women. Under Bill C-31, this system became known as the second generation cut-off. Bill C-31 amendments create a new system for classifying status Indians that maintains gender discrimination. Indigenous women's movements expressed that Bill C-31 failed to eliminate all gender discrimination from the Indian Act , and in 2010 the Canadian government introduced Bill C-3 (the Act to Promote Gender Equality in Indian Registration ). Bill C-31 attempts to recognise

624-486: A husband with status. In Attorney General of Canada v. Lavell (1974), these laws were upheld despite arguments made under the Canadian Bill of Rights . The act was amended in 1985 (Bill C-31) to restore status to people who had lost it in one of these ways, and to their children. Though people accepted into band membership under band rules may not be status Indians, Bill C-31 clarified that various sections of

728-421: A lawyer for the purpose of making a claim against Canada, and further forbade them from raising money to retain a lawyer, on punishment of imprisonment. Section 87 exempts Indians from paying taxes on two types of property: (a) the interest of an Indian or a band in reserve lands or surrendered lands; and (b) the personal property of an Indian or a band situated on a reserve. The rights exclusive to Indians in

832-408: A reserve are used or are to be used is for the use and benefit of the band. Marginal note: Use of reserves for schools, etc. 18. (2) The Minister may authorize the use of lands in a reserve for the purpose of Indian schools, the administration of Indian affairs, Indian burial grounds, Indian health projects or, with the consent of the council of the band, for any other purpose for the general welfare of

936-793: Is hereby declared to continue and be vested in the Queen ". In section 10, the Governor General or an administrator of the government , is designated as "carrying on the Government of Canada on behalf and in the Name of the Queen". Section 11 creates the King's Privy Council for Canada . Section 12 states that the statutory powers of the executives of the former provinces of Upper Canada, Lower Canada, Canada, Nova Scotia, and New Brunswick continue to exist, until modified by subsequent legislation. To

1040-664: Is in a delimited federal competency like those listed under section 91 (see e.g. AG Canada v AG Ontario (Labour Conventions) , [1937] AC 326 (PC)). In 2019, the Saskatchewan Court of Appeal sided with the federal government in a 3–2 split on the Greenhouse Gas Pollution Pricing Act , allowing an expansion of the federal government's taxation power over the provinces in the wake of the climate change crisis, concurrently as Parliament joined with other national legislatures in declaring that

1144-447: Is the question of defining who they are (e.g. who are the "Indians" of the Indian Act ?), and this aspect of the legislation has been an ongoing source of controversy throughout its history. Not all people who self-identify as "Aboriginal" are considered "Indians" under the terms of the act. Only those on the official Indian Register maintained by the federal government (or a local "band list" in some cases) are Status Indians, subject to

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1248-820: The British North America Act, 1867 ( BNA Act ), is a major part of the Constitution of Canada . The act created a federal dominion and defines much of the operation of the Government of Canada , including its federal structure , the House of Commons , the Senate , the justice system , and the taxation system. In 1982, with the patriation of the Constitution, the British North America Acts which were originally enacted by

1352-715: The British Parliament , including this Act, were renamed. However, the acts are still known by their original names in records of the United Kingdom . Amendments were also made at this time: section 92A was added, giving provinces greater control over non-renewable natural resources . The long title is "An Act for the Union of Canada, Nova Scotia and New Brunswick, and the Government Thereof; and for Purposes Connected Therewith." The act begins with

1456-562: The Government of Canada interacts with the 614 First Nation bands in Canada and their members. Throughout its long history, the act has been a subject of controversy and has been interpreted in different ways by both Indigenous Canadians and non-Indigenous Canadians. The legislation has been amended many times, including "over five major changes" made in 2002. The act is very wide-ranging in scope, covering governance , land use , healthcare , education , and more on Indian reserves. Notably,

1560-663: The Governor General in Council as the governor general acting with the advice of the Privy Council. Section 14 allows the Governor General to appoint deputies to exercise their powers in various parts of Canada. The Commander-in-Chief of all armed forces in Canada continues to be vested in the King under Section 15. Section 16 declares Ottawa to be the seat of government for Canada. The Parliament of Canada comprises

1664-654: The Gradual Civilization Act until 1961, the enfranchisement process was optional for men of age 21 able to read and write English or French. The great aim of our legislation has been to do away with the tribal system and assimilate the Indian people in all respects with the other inhabitants of the Dominion as speedily as they are fit to change. John A Macdonald, 1887 Reserves, under this legislation, were islands within Canada to which were attached

1768-737: The Indian Act are beyond legal challenge under the Constitution Act, 1982 . Section 25 of the Constitution Act, 1982 provides that the Canadian Charter of Rights and Freedoms shall not be interpreted as negating Aboriginal, treaty or other rights of Canada's Aboriginal peoples. Section 88 of the act states that provincial laws may affect Aboriginals if they are of "general application", meaning that they affect other people as well as Aboriginals. Hence, provincial laws are incorporated into federal law, since otherwise

1872-458: The Indian Act without success. Those changes that have been made have been piecemeal reforms, rather than sweeping revisions. Since the 1990s, several pieces of legislation have been passed allowing individual bands to opt out of a particular section of the Indian Act if an agreement is signed between the band and the government putting alternative measures in place. These are called "Sectoral Legislative Arrangements". The band remains subject to

1976-439: The Indian Act would apply to such members. The sections in question are those relating to community life (e.g., landholdings). Sections relating to Indians (Aboriginal people) as individuals (in this case, wills and taxation of personal property) were not included. Bonita Lawrence (2003) discusses a feminist position on the relationship between federal definition and Indian identity in Canada. Until 1985, subsection 12(1)(b) of

2080-589: The Indian Act , updated to April 2013, the term "band" means a body of Indians (a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951, (b) for whose use and benefit in common, moneys are held by Her Majesty, or (c) declared by the Governor in Council to be a band for the purposes of this Act. Fundamental to Canada's ability to interact with First Nations peoples

2184-480: The Indian Department ) hoped, by means of fiduciary duty that it voluntarily took on, to preserve Indian identity. But later the government of the Province of Canada conceived of the compulsory enfranchisement scheme of the Gradual Civilization Act . The 1985 amendment to the Indian Act extinguished the idea of enfranchisement, although by then Status Indians were Canadian citizens by birth . Under

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2288-604: The Maritime Provinces and the Western Provinces (at the time of the Union, there were 72 senators). Section 23 lays out the qualifications to become a senator. Senators are appointed by the governor general under Section 24 (which until the 1929 judicial decision in Edwards v Canada (AG) was interpreted as excluding women), and the first group of senators was proclaimed under section 25. Section 26 allows

2392-708: The Royal Proclamation of 1763 which made it illegal for British subjects to buy land directly from Indian nations, because only the Crown could add land to the British Empire from other sovereign nations through treaties. This led to early treaties between Britain and nations the British still recognized as sovereign, like the " Peace and Friendship Treaties " with the Mi'kmaq and the Upper Canada treaties. During

2496-634: The Supreme Court of Canada ruled that the Indian Act was not discriminatory, as the pair gained the legal rights of white women at the same time they lost the status of Indian women, in a parallel to R. v. Drybones . In 1981, Sandra Lovelace , a Maliseet woman from western New Brunswick , forced the issue by taking her case to the United Nations Human Rights Committee , contending that she should not have to lose her own status by her marriage. The Canadian law

2600-506: The exclusive jurisdiction of a section 96 court. To validate the jurisdiction of a federal or provincial tribunal it must satisfy a three-step inquiry first outlined in Reference Re Residential Tenancies Act (Ontario) . The tribunal must not touch upon what was historically intended as the jurisdiction of the superior court. The first stage of inquiry considers what matters were typically exclusive to

2704-421: The matrilineal cultures of many First Nations, whereby children were born to the mother's clan and people gained their belonging in the clan from her family. Often property and hereditary leadership passed through the maternal line. In addition, the 1876 Indian Act maintained that Indigenous women with status who married status Indigenous men would, in the event of divorce, be unable to regain their status to

2808-589: The seats of government of the first four provinces (Ontario, Quebec, Nova Scotia, New Brunswick), but also allows those provinces to change their seats of government. Sections 69 and 70 establishes the Legislature of Ontario, comprising the lieutenant governor and the Legislative Assembly of Ontario , and Sections 71 to 80 establishes the Parliament of Quebec , which at the time comprised

2912-485: The "double mother" clause, "removed status from children when they reached the age of 21 if their mother and paternal grandmother did not have status before marriage." Much of the discrimination stems from the Indian Act amendments and modifications in 1951. Lawrence discusses the struggles of Jeannette Corbiere Lavell and Yvonne Bédard in the early 1970s, two Indigenous women who had both lost their Indian status for marrying white men. Lavell , whose activism helped create

3016-789: The "grass dance". The dance ceremony involved the giving away and exchange of blankets and horses; thus it breached Section 114 of the Indian Act. As a result, Wanduta, an elder of the Dakota community, was sentenced to four months of hard labour and imprisonment on January 26, 1903. According to Canadian historian Constance Backhouse, the Aboriginal "give-away dances" were ceremonies more commonly known as potlatches that connected entire communities politically, economically and socially. These dances affirmed kinship ties, provided elders with opportunities to pass on insight, legends and history to

3120-561: The 1980s, as prison wardens often denied Indigenous peoples access to materials used for prayer. Starting in the early 1900s, the Nisga'a First Nation started or attempted to start several legal proceedings to take control of their traditional territory. A series of attempts were denied by the B.C. government or not pursued by the Canadian Government. A 1927 amendment (Section 141) forbade any First Nation or band from retaining

3224-547: The Algonquin culture and history. A living museum, Mawandoseg Kitigan Zibi, is dedicated to the Anishinaabeg way of life. Indian Act The Indian Act ( French : Loi sur les Indiens ) is a Canadian Act of Parliament that concerns registered Indians , their bands , and the system of Indian reserves . First passed in 1876 and still in force with amendments, it is the primary document that defines how

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3328-732: The Canadian Charter of Rights and Freedoms . In Canada (Canadian Human Rights Commission) v. Canada (Attorney General) (2018), the majority found that the Canadian Human Rights Tribunal 's determination that the Indian Act did not violate the Canadian Human Rights Act was reasonable due to judicial deference . Constitution Act, 1867 [REDACTED] Canada portal The Constitution Act, 1867 ( French : Loi constitutionnelle de 1867 ), originally enacted as

3432-538: The Commons under Section 53 and must be proposed by the governor general (i.e. the government) under section 54. Sections 55, 56, and 57 allow the governor general to assent to in the Queen's name, withhold assent to or "reserve" for the "signification of the Queen's pleasure" any bill passed by both houses. Within two years of the governor general's royal assent to a bill, the Queen-in-Council may disallow

3536-511: The Commons, under Section 37, consists of 308 members : 106 for Ontario, 75 for Quebec, 11 for Nova Scotia, 10 for New Brunswick, 14 for Manitoba, 36 for British Columbia, 4 for Prince Edward Island, 28 for Alberta, 14 for Saskatchewan, 7 for Newfoundland and Labrador, 1 for Yukon, 1 for the Northwest Territories, and 1 for Nunavut. The House is summoned by the governor general under Section 38. Section 39 forbids senators to sit in

3640-459: The Commons. Section 41 divides the provinces in electoral districts and Section 41 continues electoral laws and voting qualifications of the time, subject to revision. Section 44 allows the house to elect its own speaker and allows the House to replace the speaker in the case of death (Section 45) or prolonged absence (47). A speaker is required to preside at all sittings of the House (46). Quorum for

3744-585: The Crown to add four or eight senators at a time to the Senate, divided among the divisions, but according to section 27 no more senators can then be appointed until, by death or retirement, the number of senators drops below the regular limit of 24 per division. The maximum number of senators was set at 113, in Section 28. Senators are appointed for life (meaning until age 75 since 1965), under Section 29, though they can resign under Section 30 and can be removed under

3848-563: The Crown and the Indigenous peoples of the Great Lakes basin together in a familial relationship, a relationship that exists to this day, exemplified by First Nations attendance at the coronation of King Charles III . Treaty rights would be incorporated into the 1982 Constitution. Section 91(27) gives Parliament the power to make law related to the "criminal law, except the constitution of courts of criminal jurisdiction, but including

3952-525: The Department of Indian Affairs. Consequently, the reality of scarce access to essential services and resources amongst Indigenous communities became a primary factor driving the membership process and its outcomes. As stated in Bill C-31, women who lost their status as a result of marrying a man who was not a status Indian can apply for reinstatement and regain status under subsection 6(1). However,

4056-520: The Indians". Aboriginal Affairs and Northern Development Canada (AANDC), formerly known as Indian and Northern Affairs Canada (INAC), has been the main federal organization exercising this authority. This empowered the Canadian government to act as if the treaties between the Indigenous peoples and the British Crown preceding Confederation did not exist. The Treaty of Niagara of 1764 bound

4160-613: The International Covenant, in concurrence of Article 27. As well, In Article 2(3)(a) of the decision, the Government of Canada must provide effective remedy. Under the United Nations' International Covenant on Civil and Political Rights, the Government of Canada is required in 180 days to fulfill these requirements: to ensuring that paragraph 6(1)(a) of the Indian Act is understood in a way that allows registration of those who were not previously registered under

4264-502: The King and two chambers (the House of Commons of Canada and the Senate of Canada ), as created by section 17. Section 18 defines its powers and privileges as being no greater than those of the British parliament . Section 19 states that Parliament's first session must begin six months after the passage of the act. The Senate has 105 senators (Section 21), most of whom represent (Section 22) one of four equal divisions: Ontario, Quebec,

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4368-515: The North American British "Provinces" (colonies) of Canada, New Brunswick, and Nova Scotia. Section 3 established that the union would take effect within six months of passage of the act and Section 4 confirmed "Canada" as the name of the country (and the word "Canada" in the rest of the act refers to the new federation and not the old province). Section 5 listed the four provinces of the new federation. Those were formed by dividing

4472-539: The Ontario Native Women's Association and also held the position of vice president of the Native Women's Association of Canada , and other Indigenous women were key actors in generating public awareness of gender discrimination in Canadian law and paving the way for later amendments to the Indian Act that allowed some women and their children to regain and/or attain status under Bill-C31. Meanwhile,

4576-503: The Provincial Provinces power over the competency of education, but there are significant restrictions designed to protect minority religious rights. This is due that it was created during a time when there was a significant controversy between Protestants and Catholics in Canada over whether schools should be parochial or non-denominational. Section 93(2) specifically extends all pre-existing denominational school rights into

4680-671: The Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général)" addresses gender-based inequalities in the Indian Act . Bill S-3 received royal assent in December 2017 and came in to full effect in August 2019. In 1894 amendments to the Indian Act made school attendance compulsory for Indigenous children between 7 and 16 years of age. The changes included a series of exemptions regarding school location,

4784-544: The United Kingdom had some freedom of expression in 1867, the preamble extended this right to Canada even before the enactment of the Canadian Charter of Rights and Freedoms in 1982; this was a supposed basis for the Implied Bill of Rights . In New Brunswick Broadcasting Co. v. Nova Scotia , the leading Canadian case on parliamentary privilege, the Supreme Court of Canada grounded its 1993 decision on

4888-564: The United Kingdom. Section 96 authorizes the federal government to appoint judges for "the Superior, District, and County Courts in each Province". No provinces have district or county courts anymore, but all provinces have superior courts. Although the provinces pay for these courts and determine their jurisdiction and procedural rules, the federal government appoints and pays their judges. Historically, this section has been interpreted as providing superior courts of inherent jurisdiction with

4992-525: The United Nations' Human Rights Committee decision in the Sandra Lovelace case and Charter compliance issues. However, under Bill C-31, women who regain status fall under 6(1) and her children fall under 6(1) status. However, anybody who loses and regains status that is not from marriage falls under 6(2) and cannot gain status [like 6(1)]. This action has ultimately violated the United Nations' International Covenant on Civil and Political Rights through

5096-451: The act "discriminated against Indian women by stripping them and their descendants of their Indian status if they married a man without Indian status." Under subsection 12(2) of the act, "'illegitimate' children of status Indian women could also lose status if the alleged father was known not to be a status Indian and if the child's status as an Indian was "protested" by the Indian agent." Further, subparagraph 12(1)(a)(iv), which Lawrence calls

5200-614: The act except for the section in question. The 1895 amendment of the Indian Act (Section 114) criminalized many Aboriginal ceremonies, which resulted in the arrest and conviction of numerous Aboriginal people for practising their basic traditions. These arrests were based on Aboriginal participation in festivals, dances and ceremonies that involved the wounding of animals or humans, or the giving away of money or goods. The Dakota people (Sioux) who settled in Oak River, Manitoba, in 1875 were known to conduct "give-away dances", also known as

5304-422: The act is not the Constitution of Canada's only preamble. The Charter also has a preamble . Part I consists of just one extant section. Section 1 gives the short title of the act as Constitution Act, 1867 . Section 2 , repealed in 1893, originally stated that all references to the Queen (then Victoria ) equally apply to all her heirs and successors. The act established the Dominion of Canada by uniting

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5408-415: The act worked to disadvantage the position of Aboriginal women and can be considered an attempt to demolish Aboriginal families and alienate Aboriginal women from their land. Inflicting gender discriminatory laws, the Canadian government marginalized and disadvantaged Aboriginal women. Section 12 gained the attention of female movements contributing to a variety of proposals for reform. Amended in 1985 through

5512-467: The act, as stated by its drafters, was to administer Indian affairs in such a way that Indian people would feel compelled to renounce their Indian status and join Canadian civilization as full members: a process called enfranchisement. The idea of enfranchisement predated the 1876 version of the act and survived in some form until 1985. From the introduction in 1857 by the Taché - Macdonald administration of

5616-459: The act; and within two years of the governor general's reservation, the Queen-in-Council may assent to the bill. The basic governing structures of the provinces are laid out in Part V of the act. (Specific mentions are made to the four founding provinces, but the general pattern holds for all the provinces.) Each province must have a lieutenant governor ( Section 58 ), who serves at the pleasure of

5720-448: The band they were originally registered in. This occurred as a result of the act's enforcement of the patrilineal descent principle required to determine an individual's eligibility for Indian status. As individuals, Indigenous women were not eligible for status or able to transfer status to their children in their own right. Indian status could only be reacquired or transferred legally by proof of an Indigenous father or through marriage to

5824-457: The band, and may take any lands in a reserve required for those purposes, but where an individual Indian, immediately prior to the taking, was entitled to the possession of those lands, compensation for that use shall be paid to the Indian, in such amount as may be agreed between the Indian and the Minister, or, failing agreement, as may be determined in such manner as the Minister may direct. In

5928-574: The better Administration of the Laws of Canada". Section 92(14) gives the provincial legislatures the power over the "Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction". This power includes the creation of both the superior courts , both of original jurisdiction and appeal, as well as inferior tribunals. Superior courts are known as "courts of inherent jurisdiction", as they receive their constitutional authority from historical convention inherited from

6032-702: The better Administration of the Laws of Canada". Parliament has used this power to create the Supreme Court of Canada and lower federal courts. It has created the Supreme Court under both branches of s. 101. The lower federal courts, such as the Federal Court of Appeal , the Federal Court , the Tax Court of Canada and the Court Martial Appeal Court of Canada are all created under the second branch, i.e. as "additional Courts for

6136-447: The children of reinstated women are subject to registration under subsection 6(2). Aboriginal people registered under section 6(2) are unable to transmit status to future generations. Thus, by reinstating women under section 6 of the act, the Canadian government failed to completely remove gender discrimination from its legislation, as the children of reinstated women have restrictions on their status, and status Indian men continue to hold

6240-559: The constitution and the Indian Act . The case involved whether Aboriginals were subject to provincial game laws when hunting on Indian reserves. The act was at the centre of the 1969 Supreme Court case R. v. Drybones , regarding the conflict of a clause forbidding Indians to be drunk off the reserve with the Bill of Rights. The case is remembered for having been one of the few in which the Bill of Rights prevailed in application to Indian rights. In Corbiere v. Canada (1999), voting rights on reserves were extended under Section Fifteen of

6344-423: The constitutional authority to hear cases. The "section 96 courts" are typically characterized as the "anchor" of the justice system around which the other courts must conform. As their jurisdiction is said to be "inherent", the courts have the authority to try all matters of law except where the jurisdiction has been taken away by another court. However, courts created by the federal government under section 101 or by

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6448-414: The court at the time of Confederation in 1867. In Sobeys Stores Ltd. v. Yeomans (1989) the Supreme Court stated that the "nature of the disputes" historically heard by the superior courts, not just the historical remedies provided, must be read broadly. If the tribunal is found to intrude on the historical jurisdiction of the superior court, the inquiry must turn to the second stage which considers whether

6552-458: The discriminatory practices of the Indian Act ; that this law discriminates against Indigenous women and her descendants and their right to express their culture. In addition, this decision was also made based on the 2007 Supreme Court of British Columbia case of Sharon McIvor and her son, Jacob Grisner, that have been waiting over a decade of a verdict of their case. The UNHRC's decision has determined that Bill C-31 has violated Articles 3 and 26 of

6656-431: The disinterest of its youth in their own language, the community has decided to reintroduce the teaching of the Algonquin language in school. As of the 2016 census of those living on the Kitigan Zibi reserve: The chiefs have been: The Kitigan Zibi Pow wow is held annually on the first weekend of June. The Kitigan Zibi Cultural Centre has a number of exhibits, cultural artifacts, paintings, and photographs relating to

6760-578: The distinction of paragraph 6(1)(a) on the basis of sex and gender, account for the ongoing discrimination of Indigenous peoples in Canada of gender and sex in the Indian Act and to avoid future discrimination similar to this Bill. Bill C-3 amendments to the act ( Gender Equity in Indian Registration Act —GEIRA) permitted Aboriginal women reinstated under subsection 6(2) to be eligible for 6(1) status. Creating paragraph 6(1)(c.1) registration, reinstated Aboriginal women could only be eligible for registration under 6(1) if they had non-status children. Since it

6864-445: The extent those pre-Confederation statutory powers now came within provincial jurisdiction, they could be exercised by the lieutenant governors of the provinces, either alone or by the advice of the provincial executive councils. To the extent the pre-Confederation statutory powers now came within federal jurisdiction, they could be exercised by the Governor General, either with the advice of the Privy Council or alone. Section 13 defines

6968-471: The federal Divorce Act is valid legislation, even though the Divorce Act has some incidental effects on child custody , which is usually considered to be within the provincial jurisdictions of "civil rights" (s. 92(13)) and "matters of a private nature" (s. 92(16)). Section 92(10) allows the federal government to declare any "works or undertakings" to be of national importance, and thereby remove them from provincial jurisdiction. Sections 93 and 93A give

7072-405: The federal Parliament the legislative power to implement treaties entered to by the British government on behalf of the Empire. With the acquisition of full sovereignty by Canada, this provision has limited effect. Section 133 establishes English and French as the official languages of the Parliament of Canada and the Legislature of Quebec. Either language can be used in the federal Parliament and

7176-419: The federal and provincial governments share power over agriculture and immigration. Either order of government can make laws in this area, but in the case of a conflict, federal law prevails. The authority over the judicial system in Canada is divided between Parliament and the provincial Legislatures. Section 101 gives Parliament power to create a "general court of appeal for Canada" and "additional Courts for

7280-422: The federal government is liable for the debts of the provinces (Sections 111–116). It establishes the tradition of the federal government supporting the provinces through fiscal transfers (Section 119). It creates a customs union which prohibits internal tariffs between the provinces ( Sections 121 –124). Section 125 prevents one order of government from taxing the lands or assets of the other. Section 132 gives

7384-433: The federal government power over divorce and marriage. On this basis, Parliament can legislate on the substantive law of marriage and divorce. However, the provinces have power over the procedural law governing the solemnization of marriage (section 92(12)). There are also several instances of overlap in laws relating to marriage and divorce, which in most cases is solved through interjurisdictional immunity . For instance,

7488-431: The former Province of Canada into two: its two subdivisions, Canada West and Canada East , renamed Ontario and Quebec , respectively, become full provinces in Section 6. Section 7 confirmed that the boundaries of Nova Scotia and New Brunswick are not changed. And Section 8 provided that a national census of all provinces must be held every ten years. Section 9 confirms that all executive authority "of and over Canada

7592-442: The full legal benefits and restrictions of the act. Notably this excludes Métis , Inuit , and so-called Non-Status Indians . Various amendments and court decisions have repeatedly altered the rules regarding who is eligible for Indian Status. Many bands now maintain their own band lists. Prior to 1985, Indigenous persons could lose status under the act in a variety of ways, including the following: These provisions interfered with

7696-420: The function of the tribunal and whether it operates as an adjudicative body. The final step assesses the context of the tribunal's exercise of power and looks to see if there are any further considerations to justify its encroachment upon the superior court's jurisdiction. Not all courts and tribunals have jurisdiction to hear constitutional challenges. The court, at the very least, must have jurisdiction to apply

7800-634: The government of Canada apologized. In 1885, an amendment to the act banned the Potlatch ceremony of the West Coast peoples. The Potlatch ban drove traditional ceremonies underground. A similar amendment in 1895 banned the Sun Dance of the Plains peoples, which was not lifted until 1951. Although lifted in 1951, repression of Indigenous spiritual practices continued in Canadian prisons through to

7904-455: The governor general (Section 59), whose salary is paid by the federal parliament (Section 60), and who must swear the oath of allegiance (Section 61). The powers of a lieutenant governor can be substituted for by an administrator of government (Sections 62 and 66). All provinces also have an executive council (Sections 63 and 64). The lieutenant governor can exercise executive power alone or " in council " (Section 65). Section 68 establishes

8008-557: The health of the children and their prior completion of school examinations. The Canadian Indian residential school system subjected children to forced conversions, sickness, abuse and what has been described as an attempt at cultural genocide by the Truth and Reconciliation Commission . The residential school system severed family ties and diminished the transmission of traditional culture, in an attempt to assimilate Indigenous peoples into broader Canadian society for which on June 11, 2008,

8112-458: The house is set at 20 members, including the speaker by Section 48. Section 49 says that the speaker cannot vote except in the case of a tied vote. The maximum term for a house is five years between elections under Section 50. Section 51 sets out the rules by which Commons seats are to be redistributed following censuses, allowing for more seats to be added by section 52. " Money bills " (dealing with taxes or appropriation of funds) must originate in

8216-425: The introduction of Bill C-31, section 12 was removed and status was reinstated to those affected. The 1985 amendments led to the repatriation of status for many Indigenous women and their children but did not guarantee acceptance into an Indian band. A decade later, nearly 100,000 people had their status' reinstated while bands had newly gained control of membership responsibilities which was previously administrated by

8320-401: The law. In N.S. v. Martin; N.S. v. Laseur (2003) the Supreme Court re-articulated the test for constitutional jurisdiction from Cooper v. Canada . The inquiry must begin by determining whether the enabling legislation gives explicit authority to apply the law. If so, then the court may apply the constitution. The second line of inquiry looks into whether there was implied authority to apply

8424-455: The law. This can be found by examining the text of the act, its context, and the general nature and characteristics of the adjudicative body. See Section Twenty-four of the Canadian Charter of Rights and Freedoms for the jurisdiction of the Charter . This Part lays out the financial functioning of the government of Canada and the provincial governments. It establishes a fiscal union where

8528-665: The lieutenant governor, the Legislative Assembly of Quebec (renamed in 1968 to the National Assembly of Quebec ), and the Legislative Council of Quebec (since abolished). The legislatures are summoned by the Lieutenant Governors (Section 82). Section 83 prohibits provincial civil servants (excluding cabinet ministers) from sitting in the provincial legislatures. Section 84 allows for existing election laws and voting requirements to continue after

8632-454: The nation was in a " climate emergency " on 17 June. In Grant Huscroft 's dissenting opinion on the Court of Appeal for Ontario , he provides that "counsel for Canada conceded that the act was not passed on the basis that climate change constitutes an emergency". Section 91(24) of the act provides that the federal government has the legislative jurisdiction for "Indians and lands reserved for

8736-443: The negotiations around Canadian Confederation , the framers of Canada's constitution wanted the new federal government to inherit Britain's former role in treaty-making and land acquisition, and specifically assigned responsibility for "Indians and lands reserved for Indians" to the federal government (rather than the provinces ), by the terms of Section 91(24) of the Constitution Act, 1867 . The Indian Act replaced any laws on

8840-580: The next generation, and were a core part of Aboriginal resistance to assimilation. It is estimated that between 1900 and 1904, 50 Aboriginal people were arrested and 20 were convicted for their involvement in such dances. The Indian Act was amended in 1951 to allow religious ceremonies, including the "give-away dance". In R. v. Jim (1915), the British Columbia Supreme Court found that Aboriginal hunting on Indian reserves should be considered under federal jurisdiction under both

8944-432: The original Indian Act defines two elements that affect all Indigenous Canadians : The act was passed because the Crown relates differently to First Nations (historically called "Indians") than to other ethnic groups because of their previous history on the land. When Canada confederated in 1867 the new state inherited legal responsibilities from the colonial periods under France and Great Britain , most notably

9048-505: The peace, order, and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces". Although the text of the act appears to give Parliament residuary powers to enact laws in any area that has not been allocated to the provincial governments , subsequent Privy Council jurisprudence held that the "peace, order, and good government" power

9152-509: The post-Confederation era. Section 94 allows for the provinces that use the British-derived common law system, in effect all but Quebec, to unify their property and civil rights laws. This power has never been used. Under Section 94A, the federal and provincial governments share power over Old Age Pensions. Either order of government can make laws in this area, but in the case of a conflict, provincial law prevails. Under Section 95,

9256-549: The preamble. Moreover, since the UK had a tradition of judicial independence , the Supreme Court ruled in the Provincial Judges Reference of 1997 that the preamble shows judicial independence in Canada is constitutionally guaranteed. Political scientist Rand Dyck criticized the preamble in 2000, saying it was "seriously out of date". He claimed the act "lacks an inspirational introduction". The preamble to

9360-475: The procedure in criminal matters". It was on this authority that Parliament enacted and amends the Criminal Code . However, under section 92(14), the provinces are delegated the power to administer justice, "including the constitution, maintenance, and organization of provincial courts, both of civil and criminal jurisdictions, and including procedure in civil matters in both courts". This provision allows

9464-568: The provinces powers over the "prisons". This means that offenders sentenced to two years or more go to federal penitentiaries while those with lighter sentences go to provincial prisons. Section 92(13) gives the Provinces the exclusive power to make law related to " property and civil rights in the province". In practice, this power has been read broadly to give the provinces authority over numerous matters such as professional trades, labour relations , and consumer protection. Section 91(26) gives

9568-647: The provinces to create the courts of criminal jurisdiction and to create provincial police forces such as the OPP and the Sûreté du Québec (SQ) . As a matter of policy dating back to Confederation, the federal government has delegated the prosecutorial function for almost all criminal offences to the provincial Attorneys General. Crown Prosecutors appointed under provincial law thus prosecute almost all Criminal Code offences across Canada. Section 91(28) gives Parliament exclusive power over "penitentiaries" while section 92(6) gives

9672-462: The provincial government under 92(14) are generally not allowed to intrude on the core jurisdiction of a section 96 court. The scope of the core jurisdiction of section 96 courts has been a matter of considerable debate and litigation. When commencing litigation a court's jurisdiction may be challenged on the basis that it does not have jurisdiction. The issue is typically whether the statutory court created under section 101 or 92(14) has encroached upon

9776-676: The provincial laws would be unconstitutional. In Kruger and al. v. The Queen (1978), the Supreme Court found that provincial laws with a more significant impact on Aboriginals than other people can be upheld, as "There are few laws which have a uniform impact." Constitutional scholar Peter Hogg argues that in Dick v. The Queen (1985), the Supreme Court "changed its mind about the scope of s. 88." Section 88 could now protect provincial laws relating to primary Aboriginal issues and even limiting Aboriginal rights. Numerous failed attempts have been made by Canadian parliamentarians to repeal or replace

9880-408: The provisions of Section 91(24) of the Constitution Act, 1867 , which provides Canada's federal government exclusive authority to govern in relation to "Indians and Lands Reserved for Indians". It was an attempt to codify rights promised to Native peoples by King George III in the Royal Proclamation of 1763 while at the same time enforcing Euro-Canadian standards of "civilization" . The purpose of

9984-427: The provisions regarding money votes, royal assent, reservation and disallowance, as established for the federal Parliament to the provincial legislatures but with the governor general in the role of the Queen-in-Council. The powers of government are divided between the provinces and the federal government and are described in sections 91 to 95 of the act. Sections 91 and 92 are of particular importance, as they enumerate

10088-406: The section entitled "Reserves" in the Indian Act , reserves are said "to be held for use and benefit of Indians. 18. (1) Subject to this Act, reserves are held by Her Majesty for the use and benefit of the respective bands for which they were set apart, and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which lands in

10192-666: The subjects for which each jurisdiction can enact a law, with section 91 listing matters of federal jurisdiction and section 92 listing matters of provincial jurisdiction. Sections 92A and 93 and 93A are concerned with non-renewable natural resources and education, respectively (both are primarily provincial responsibilities). Section 94 leaves open a possible change to laws regarding property and civil rights , which so far has not been realized. Sections 94A and 95, meanwhile, address matters of shared jurisdiction, namely old age pensions (section 94A) and agriculture and immigration (section 95). Section 91 authorizes Parliament to "make laws for

10296-428: The terms of section 31, in which case the vacancy can be filled by the governor general (Section 32). Section 33 gives the Senate the power to rule on its own disputes over eligibility and vacancy. The speaker of the Senate is appointed and dismissed by governor general under Section 34. Quorum for the Senate is (initially) set at 15 senators by Section 35, and voting procedures are set by Section 36. The composition of

10400-443: The topic passed by a local legislature before a province joined Canadian Confederation, creating a definitive national policy. The act is not a treaty; it is Canada's legal response to the treaties. The act's unilateral nature was imposed on Indigenous peoples after passage by the Canadian government, in contrast to the treaties, which were negotiated. This aspect was resented and resisted by many Indigenous peoples in Canada. The act

10504-439: The union. Section 85 sets the life of each legislature as no more than four years, with a session at least once every twelve months under Section 86. Section 87 extends the rules regarding speakers, by-elections, quorum, etc., as set for the federal House of Commons to the legislatures of Ontario and Quebec. Section 88 simply extends the pre-union constitutions of those provinces into the post-Confederation era. Section 90 extends

10608-885: Was amended in 1985. The Canadian government applied gender bias requirements to the legal status of Aboriginal peoples in Canada. First passed as part of the Gradual Enfranchisement Act , a status Indian woman who married a man who was not a status Indian became non-status. Without legal status, Aboriginal women are unable to access treaty benefits, practice inherent rights to live on their reserve, inherit family property or be buried on reserve with ancestors. Restricted from access to their native community, Aboriginal women without legal status were unable to participate in ceremonies and rituals on their traditional land. However, these conditions did not apply to status Indian men who married non-status women; these men were able to keep their status. Section 12, paragraph 1(b) of

10712-678: Was introduced in 1875 by the Liberal government as a consolidation of various laws concerning Indigenous peoples enacted by the separate colonies of British North America prior to Confederation , most notably the Gradual Civilization Act passed by the Parliament of the Province of Canada in 1857 and the Gradual Enfranchisement Act of 1869. The act was passed by the Parliament of Canada under

10816-402: Was the children of Aboriginal women who had been affected by restrictions under subsection 6(2) legal registration, only women who had children were eligible to be registered under subsection 6(1) of the act. Continuing to place restrictions on the status of reinstated women, Bill C-3 does not remove all gender bias provisions from the act. Bill S-3, "An Act to amend the Indian Act in response to

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