First Nation People And Justice In Canada

Essay, Research Paper

First Nation rights in North America have a history of being overlooked and exploited. The first law that exploited Native people in North America was the Royal Proclamation of 1763, which was designed by the British Crown to take the sovereignty and lands away from the First Nation peoples. This law knowingly violated two of the prevailing European principles of international justice. The Crown was setting itself up as the exclusive real estate agent for the vast First Nation lands in North America. The Royal Proclamation of 1763 was the first, but not the last, instance of injustice towards Native Americans. Injustice to First Nations in Canada can be placed on three pillars; the Canadian government, the Canadian courts, and the Canadian people. The Canadian government has been guilty of having treated First Nation people incorrectly. The Canadian government used the Indian Act to define Indian status in racial terms. Also in Canada, Native Americans have been segregated into reserves, dispossessed of large amounts of land, and administered under a separate department of the government. First Nation people are a small minority in Canada so the democratic power of the one-person one vote system does not work for them. The Canadian government can use its political majority to create and implement any legal position it wants in respect of its Indian wards. (Boldt p. 9) The judges who interpret the laws dealing with Native people are predominately white. They do not see the cultural bias that these laws have. The drafting of the Constitution of Canada has not addressed Native rights in a meaningful way. None of the constitutional amendments or First Ministers Conferences have ever dealt with righting the injustices that First nation people have had put upon them. The focus of these have never been to deal with First Nation people in a fair and just way, but rather to defend the existing power structures in the government. Offers by the Canadian government have regularly offered empty promises. Former Prime Minister Brian Mulroney, offered First Nations justice if they would withdraw their opposition to the Meech lake accord. The problem with this was that each provincial government would have been given veto power over first nation self-determination. The problem with this government strategy is that the Canadian government offered justice as a bribe for First Nation people withdrawing opposition to the Meech Lake Accord, when it was a bad deal for First Nation people. Justice is a fundamental principle of human rights. When Mulroney denies this principle, he perverts the meaning of justice. (Boldt p. 11) The court system has also been historically unfair to Native rights. The Supreme Court of Canada has consistently ruled in favor of the colonial doctrines that the Royal Proclamation of 1763 enshrined in regards to land title and sovereignty. The present day judiciary system is fully aware that aboriginal peoples were present when King George III claimed lands in Canada, based on the racist grounds that the Native people were uncivilized. Even though Canadian courts recognize these facts, they still refuse to accept First Nation claims to their ancestral lands. Instead Native people are allowed to live in reservations where there is destitution and dependence on the federal government. The original occupants of the land should have at least enough land to enable them to feed themselves. (Boldt p. 11) The court system has occasionally made minor favorable decisions on Native rights such as allowing First nation people the right to hunt out of season on vacant Crown lands. These are matters that have limited implications and low stakes. However there have been no major decisions which have favorable consequences for First Nation peoples concerning sovereignty and land title. There have also been examples of Canadian interests being given priority over First Nation treaty rights. The Ontario Court of Appeal ruled in 1989 that the federal Fisheries Act takes precedence over aboriginal, treaty, or other rights and freedoms. The ruling was made for the betterment of Canadians, the interests of the dominant group were more important in the eyes of the court than the rights of the minority group. Canada has been guilty of blatant gender discrimination that was just corrected in 1985. Section 12 (1)(b) of the Indian Act denied status to Native women who married non-Natives. The Canadian Supreme Court ruled in favor of section 12 of the Indian Act when it was challenged. It took the United Nations Human Rights Commission to correct this obvious gender discrimination. The Canadian government amended the Indian Act with Bill C-31, which repelled section 12 (1)(b). First Nation individuals have also been failed by the court system. Donald Marshall Jr., a Micmac, spent eleven years in prison for a crime he did not commit. The report of the royal commission, published in 1990 implicates police, defense lawyers, prosecutors, trial judges at lower and appeal court levels, and senior government officials as having participated in a charade of justice characterized by malice, negligence, malfeasance, incompetence, and improper actions emanating from racial stereotyping. (Boldt p. 13) What is frightening is that the Marshall case has not been an isolated case. Recent provincial inquiries in Ontario (1987), Manitoba (1991), and Alberta (1991) have also found that Native people encoun