Aboriginal People and the Canadian Constitution (Lecture 13)
Who are Aboriginal Peoples?
According to the Constitution, 1982, Aboriginal peoples are defined as "Indians, Inuit and Metis"
who have "aboriginal and treaty rights."
Aboriginals were only allowed to vote federally in 1960.
Royal Proclamation, 1763:
o Reserved to Aboriginal peoples.
Not highlighted in the BNA, 1867.
Very limited in early Canadian political life.
o The 1927 Indian Act denied the Aboriginal people of Canada from speaking their native
language, or practicing their original religion.
o People were treated as wards of the state.
Prior to Constitution Act, 1982:
The doctrine of parliamentary sovereignty applied to Aboriginal rights.
Implied that rights could be limited or extinguished through legislation enacted by legislative
No rights were outlined in the Constitution.
Indian Act, 1867
Reflecting the racial and gendered biases of the time, the original "Indian" Act defined "Indian" as
any "male person of Indian blood reputed to belong to a particular band," any of his children and
his legal right.
o Under the terms of the Canadian federalism, the federal government has the power to
regulate First Nations' policy.
o Limited tax exemptions exist.
One of the debates surrounding S.91 (24) who was considered an "Indian" under the Act
o In 1939, the SCC held that Inuit were subject to federal jurisdiction and were to be
considered "Indians" under the Act.
o But the statute was changed to expressively exclude Inuit peoples from its application.
Provincial Legislative Power
Provincial governments can't pass laws in relation to "Indians."
Section 35(1) Constitut