Canada Lacks Authority to Legislate Extinction of Indians

I am in the process of editing my doctoral thesis into a book that will be published either late this year or early next. The topic is Aboriginal citizenship and how we need to think about Aboriginal identity and belonging in a different way. Canada has legislated our individual (status) and communal (membership) identities for so long that many of us have internalized the colonial views about what it means to be an Indian.

I am a Mi'kmaq woman and traditionally, my identity had nothing to do with status and everything to do with culture, language, practices, beliefs, customs, common ancestries, histories and territories. Today, unfortunately, for all practical purposes Canada controls status which largely controls band membership and therefore "recognized" identity.

Some of us have forgotten what it means to be Mi'kmaq, Mohawk or Cree and instead concentrate on Canada's Indian status, blood quantum, hair colour, or reserve residency as the only indicators of Aboriginal identity. Despite the fact that these racist criteria originated with colonial governments, and that they will eventually lead to our collective legal extinction, we are still struggling with high levels of internalization.

My book tries to address these issues. Here is an excerpt from my doctorate which makes the point that Canada lacks the authority to legislate our extinction:

Canada has the power under section 91(24) of the Constitution Act, 1867 to legislate with regards to "Indians". However, this does not give Canada a right to make rules for Aboriginal peoples which are harmful to them or that are inconsistent with Canada’s fiduciary duty towards them.

The protections contained in section 35 of the Constitution Act, 1982 equally act as a limit on federal and provincial governments with regards to Aboriginal and treaty rights. The Court in Sparrow explained that section 35 acts as a specific restraint on Canada’s power to legislate:

"Federal legislative powers continue, including, of course, the right to legislate with respect to Indians pursuant to s. 91(24) of the Constitution Act, 1867. These powers must, however, now be read together with s. 35(1). In other words, federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights. Such scrutiny is in keeping with the liberal interpretive principle... and the concept of holding the Crown to a high standard of honourable dealing with respect to the aboriginal peoples of Canada..." (emphasis added)

When the Aboriginal right to determine citizenship is considered in this light, it is obvious that restrictions on powers apply to all parties. Therefore, Canada lacks the power to ensure the extinction of Aboriginal peoples through its restrictive status and membership provisions in the Indian Act - despite its legislative powers in section 91(24) of the Constitution Act, 1867.

This is an important fact that has been lost in many of the studies and debates over Bill C-3. Canada has assumed that its power to legislate with regards to Indians knows no bounds - but the SCC jurisprudence indicates otherwise.

Many more edits to go before I finish my book - but I welcome comments on this excerpt from my doctorate in the meantime.

Pam