Under the Constitution Act,
1867 the federal government was given responsibility for “Indians and Indian
Lands”. Since 1876 the main federal law
governing Indians and Native people in Canada has been the Indian Act. It dictates the manner in which Indian reserves and treaties are
administered by Indian and Northern Affairs Canada
and the limited control exercised by bands and band councils.
Under the Indian Act:
·
A community of “Indians” living on a reservation are
known as a band and are governed by a Chief and Council.
·
In most communities the Chief and Council function very
much like the mayor and council of a municipal government.
·
Under the Indian Act, a Band Council only has certain
powers which can only be exercised over the reserve and Band members.
The Indian Act also defines who
is an Indian (and therefore entitled to live on reserve), and how they are to
be treated by the Canadian Government.
This Guide focuses on control of watershed management issues under the
Indian Act, and does not examine the very real social issues facing First
Nations under the Indian Act.
Extent of Environmental Powers
The Indian Act gives Indian and
Northern Affairs Canada a high level of control over what takes place on a
reserve. It may determine whether the
use of reserve lands are “for the use and benefit of the band” and is given
wide powers to oversee the use of such land.
The federal Cabinet can pass regulations for a range of purposes
including the use of natural resources on the reserve. Some regulations of note include:
·
The Indian Mining
Regulation – Sets rules for the grant of mining rights on reserve lands.
·
The Indian Reserve
Waste Disposal Regulation – Prohibits anyone from operating a garbage dump
or dispose of waste on reserve lands without the approval of the minister (or
council if the minister has delegated that responsibility).
·
The Indian Timber
Regulation – Creates a process for allocating timber rights on reserve
lands.
·
While passed under the Indian Oil and Gas Act,
and not the Indian Act, the Indian Oil and
Gas Regulations relate to the grant of leases for oil and gas production on
reserve lands.
The powers of the Band Council,
resemble those of a municipal government, but are not as extensive. As noted above, these powers are frequently
subject to federal government regulations and/or the powers of the Minister of
Northern and Indian Affairs. Even the
ability to manage reserve lands must be granted (and can be taken away) by the
federal cabinet.
The Band Council does have
powers (among others) that may be of some use for watershed protection,
including powers to create bylaws that:
·
provide for the health of residents on the reserve;
·
prevent disorderly conduct and nuisances;
·
construct and maintain watercourses, roads, bridges,
ditches, fences and other local works; and
·
preserve, protect and manage fur-bearing animals, fish and
other game on the reserve.
In addition, if the Band
Council has been delegated powers to manage lands, or if the federal government
is willing to cooperate with Band requests, the Band Council may have
considerably more power over the use of reserve lands.
Provincial Environmental Laws and the Indian
Act
The Constitution Act, 1867 says
that the federal government has control over “Indians and Indian Lands”. As a result, the provincial government’s
environmental laws would not apply at all to reserve lands except that
section 88 of the Indian Act says that provincial laws of “general application”
do apply to reserves.
Laws of “general application”
apply to all people and do not affect the First Nations people or their land
“in their Indianess”. Consequently
provincial laws that affect the rights of First Nations or their lands
(potentially including lands covered by aboriginal rights) directly will
apply. This is a complex area of law
and it is not possible to lay down a clear rule about when provincial laws will
apply to Indian lands.
Evolution of the Indian Act
The Indian Act remained
largely unchanged until 1985. At that
time it was amended to bring it into line with the Canadian Charter of Rights
and Freedoms, removing some of the Act’s assumptions about male lineage and
other less political correct ideals.
The Indian Act continues to be
widely criticized. First Nations people
and their supporters often resent the high level of control that Indian and
Northern Affairs Canada exercise over their communities as well as the
assumption in the Act that whatever powers First Nations governments are
“granted” by the Act.
Laws governing First Nations
are in a state of change. The Courts
have recognized common law rights of First Nations to lands with aboriginal title, as well as to self-government outside the limits of the Indian
Act. The First
Nations Land Management Act allows First Nations governments to expand
their powers over land use by developing a land code. A proposed First Nations Governance Act, although strongly
criticized by First Nations as not recognizing self-government rights,
introduces new rules governing First Nations.
Related Guide Pages:
·
Aboriginal Rights and Title
·
First Nations Government
·
First Nations Land Management Act
·
Indian Reserves and First Nations
Land
For more information on the Indian Act:
·
Electronic Version of the Indian Act.
·
Northern
and Indian Affairs Canada website.
Of special interest may be the Federal Policy Guide on
Aboriginal Self-Government, First Nations
Effective Practices, and Sustainable Development
Strategies.
·
Aboriginal Law and
Legislation On-line, including Henderson’s Annotated
Indian Act.
·
Parts One and Two of a 1978 Article
Entitled “History of the Indian Act” published in the Saskatchewan Indian.
·
Royal Commission on
Aboriginal Peoples
