792. Native Peoples in Canada. Four separate groups of native peoples are commonly identified in Canada: Status Indians, Non-Status Indians, Metis and Inuit (previously called Eskimos). Together these native peoples, ‘by far the most economically impoverished and socially disadvantaged group in Canada’, constitute approximately 4% of the Canadian population, made up of 300 000 status Indians in 575 bands, 600 000 non-status Indians, approximately 150 000 Metis (people of mixed Indian and European ancestry) and 25 000 Inuit. The identification of the separate groups carries with it important legal implications, especially the distinction between status and non-status Indians. Status Indians are subject to the Indian Act, which recognises a special relationship between them and the Federal Government, a relationship from which other native peoples are excluded. ‘Indian’ is defined in s 2 of the Act as:
a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian.
The Inuit are specifically excluded from the provisions of the Act (s 4).
793. Legal Position of Canadian Native Peoples. In terms of their position under the law, native peoples in Canada are closer to Australian Aborigines than American Indians. The two countries have legal systems of common origin and the treatment of the indigenous minorities involving the taking of their land, the bringing together of different tribal groups on reserves and the general non-recognition of their customs and laws, has followed a similar pattern. But there are important differences. The Royal Proclamation of 1763 provided one basis for the legal recognition of native title to land in Canada. No such recognition took place in Australia. While no treaties were ever signed with Aborigines in Australia a large number of treaties were signed with Indian bands in Canada, although not with the Inuit. Responsibility for ‘Indians, and lands reserved for Indians’ in Canada has belonged exclusively to the Federal Government since the British North American Act (now termed the Constitution Act) 1867, whereas in Australia until 1967 the States had exclusive legislative responsibility. Indeed, since 1982 special reference has been made to the Indian, Metis and Inuit Peoples of Canada in the Constitution, which specifically preserves their existing rights.
794. No Tribal Courts. There is no equivalent in Canada to the tribal courts in the United States, and only in relatively recent times has there been serious discussion of the idea. Indian bands in Canada have long had power to make local by-laws applicable on reserves, and there is provision for the appointment of native justices of the peace, although these have had little impact. Very few measures have been taken to create official mechanisms to allow Indians and Inuit to deal with their own law and order problems. The James Bay and Northern Quebec Agreement of 1975, concluded between the Governments of Canada and Quebec, the Cree Indians and the Inuit, is the most significant development in this regard in recent years (although current negotiations through meetings of First Ministers focussing on self-government for native peoples may also have great significance for the future). The James Bay and Northern Quebec Agreement resulted from lengthy negotiations with the native people of the area who were to be affected by the building of a large hydro-electricity project. The Agreement contains specific provisions (s 18, 19, 20) dealing with the administration of justice’ these impose obligations on the governments of Canada and Quebec, in consultation with native parties, to adapt the criminal justice system to their circumstances, usages, customs and way of life. The Agreement has now been in existence for nine years, but little has been done to implement these provisions. Other attempts have been made, again only in recent times, to make the legal system more receptive to the special needs and difficulties of the native people. Largely this has involved Indians being made more aware of their legal rights and the working of the legal system by such measures as the appointment of Indians as para-legals and ‘native court workers’, special recruitment into police forces and special entry provisions for Indians into University law schools. It has also involved the conferral of additional responsibility for child welfare matter on Indian bands. Some recognition of native law and custom has come from the courts themselves, especially in the North West Territories.