Access to Justice was Outlawed with the Indian Act
Indigenous communities are rising up to defend their rights, their lands and future generations. Through skillful use of Canada’s courts, First Nations have become a force for human rights and environmental justice, uniting diverse communities in solidarity for the cause.
The sheer determination required to assert Indigenous rights, together with the necessary fundraising for access to justice through the courts is an act of resilience. Taking place within the ongoing legacy of oppression and assimilation in Canada through the Indian Act, the gains made by First Nations against all odds are astonishing.
Did you know, under the Indian Act, it was illegal for an Indigenous person to hire a lawyer? If a person offered Indigenous people legal counsel or raised funds to support their access to justice, they could be fined up to $200. Until the 1950’s, RAVEN’s work – and the groundbreaking legal gains Indigenous Peoples have made in the past 70 years – would have been against the law.
In the early 1900s, Indigenous Nations were organizing and beginning to push back against policies that were stripping their cultures and communities of rights and dignity. In response, in 1927, the federal government amended the Indian Act to include Section 141, which stated:
“Every person who… receives, obtains, solicits or requests from an Indian any payment or contribution or promise of any payment or contribution for the purpose of raising a fund or providing money for the prosecution of any claim which the tribe or band of Indians to which such Indian belongs…shall be guilty of an offence and liable to a penalty not exceeding two hundred dollars and not less than fifty dollars or to imprisonment for any term not exceeding two months.”
Section 141 was enacted in response to movements such as the Nisga’a Land Committee and the Native Brotherhood of British Columbia. This amendment effectively barred Indigenous peoples’ ability to fight for their rights and prohibited Indigenous governments from exercising any real power in the political and legal systems. Put together with the potlatch ban – another Indian Act edict – Indigneous People were stripped of their ability to govern. There is no question that the Indian Act set out to destroy Indigenous identity and values in Canada.
When Canada committed to the United Nations’ Universal Declaration of Human Rights in 1951, the government revised some sections of the Indian Act, including Section 141. The repeal precipitated a renaissance in Indigenous assertion of sovereignty that continues to this day.
Anishinaabe scholar John Borrows – a member of RAVEN’s legal advisory board – outlined some of the tremendous gains for Indigenous rights claimed by communities through the courts:
- In R. v. Sparrow the Court recognized that existing Aboriginal rights could include fishing for food, social, and ceremonial purposes.
- In R. v. Gladstone the Court affirmed that in certain instances, where evidence warranted, Aboriginal peoples could claim rights to fish for commercial purposes.
- Blueberry Indian Band v. Canada recognized a fiduciary duty on the part of the government.This is similar to a trustee relationship and means that the Crown must make decisions in the best interests of Indigenous communities.
- Delgamuukw v. British Columbia defined Aboriginal title as a special right arising from prior occupation of the land by Indigenous people and affirmed Indigenous communities’ intimate relationship with the land. It also affirmed that Aboriginal title included the exclusive right to use title lands for a wide variety of purposes for the benefit of the community.
- R. v. Badger, R. v. Sundown, and R. v. Marshall (I and II) lifted treaty rights above non-treaty uses of lands and resources to protect agreements negotiated by Indigenous peoples that are often over two hundred years old.
“These and other cases have re-inscribed Aboriginal rights over a Canadian legal structure that had built over the country’s Indigenous systems. They are changing the story of Canada and its relationship to the First Peoples who lived on its shores.”
“Law in North America does not just orient our relationships to one another on a horizontal axis. It does much more than merely mediate individuals’ actions on an even plane. Law also has a vertical orientation that builds relationships hierarchically and thereby forges how we interact with one another […] In Canada, the law has often layered itself over pre-existing Indigenous legal landscapes, concealing this previous presence.”
In the wake of Section 141’s repeal, Indigenous rights are beginning to take their rightful place in Canadian society. Witness Dr. Borrow’s Joint JD and Indigenous Law program, training the next generation of lawyers to understand, and defend, both colonial and Indigenous legal frameworks. Witness the many cases that have swung in favour of Indigenous Peoples – including cases fought with RAVEN’s support such as Gitxaala (Northern Gateway pipeline case), the Peel Watershed Supreme Court victory, and the very recent Tsilhqot’in win over Taseko Mines.
Despite countless attempts to thwart Indigenous governance, culture, identity and legal rights, Indigenous communities persist and rise from the cracked foundations of Canadian colonization.
An understanding of the racist historical context in which Indigenous peoples were barred from asserting their rights and accessing justice is fundamental. It is a critical tool, not only in dismantling systems of oppression and colonialism but also in appreciating the power of the Indigenous rights movement. Indigenous peoples are defying all historic odds by raising millions of dollars to support their legal actions, persevering for decades to protect their territories and way of life, becoming lawyers themselves and appealing unjust decisions until justice is truly served.
When Indigenous communities have access to justice and the ability to assert their rights, powerful change happens.
You can be part of supporting the resurgence of rights and the defence of Aboriginal values by supporting RAVEN. Make a donation to a campaign of your choice, or join the Circle of Allies and become a monthly donor.
John Borrows University of Toronto, Indian Agency: Forming First Nations Law in Canada, Canadian Law: My Story
BC STUDIES, no. 89, Spring 1991 the Suppression of Indian Rights in Canada CHIEF JOE MATHIAS and GARY R. YABSLEY: https://www.vancouverbiennale.com/wp-content/uploads/2014/07/Resende-Unit-Plan-Mathisas-Yabsley.pdf