Indian Act Of 1927 The Band example essay topic

In a society that is governed by laws no one person can be expected to know them all and how to interpret them. In Canada we have a group of judges that sit on a bench that interpret the laws and rule on cases. This groups of judges is called the Supreme Court of Canada. This essay will deal with four cases that this body of government decided to have the final ruling on.

The first case is Her Majesty The Queen versus John Sundown. The second case is Blueberry River Indian Band versus Canada (Department of Indian Affairs). These two cases are about the same topic that is dealt with many times over again in our society and that is land rights. The next two cases that we will deal with are Canadian Pacific Ltd. versus Matsqui Indian Band and Union of New Brunswick Indians versus New Brunswick (Minister of Finance). These next two cases deal with taxation and the Natives right to either be taxed or to tax.

John Sundown is a member of a Cree First Nation that is part of the treaty referred to as treat number six. John cut down some trees in a provincial park and used them to build a log cabin. This goes against the provincial parks regulations that prohibit the construction of a temporary or permanent dwelling on park land without permission. One of the entitlements of treaty six gives the member the right to hunt for food on land that is occupied by the provincial crown this includes the provincial parks. John testified that he needed the cabin while hunting, both for shelter and as a place to smoke fish and meat and to skin pelts. Evidence at the trial was provided that stated that it was a long time band practice to conduct expeditionary hunts in an area now included within the park.

In order to carry out this hunting practice shelters were built at the hunting sites. The shelters were originally moss covered lean-tos and latter tents and log cabins were used. In 1930, the Natural resources transfer agreement between the province of Saskatchewan and the federal government modified treaty six to hunt commercially but expanding the geographic areas in which Indians have the treaty right to hunt for food. John was convicted of building a permanent structure on provincial park without permission. The summary conviction appeal court quashed the appeal. The court of appeal agreed with their decision.

Which then meant that the casse was sent to the Supreme Court of Canada which herd all the evidence and found that the appeal should be dismissed. The reasons forth is decision are stated as. A hunting cabin is a reasonable use for the First Nations right to hunt in their traditional style. This use of the cabin is traditional to the First Nations style of hunting. The small log cabin is an appropriate shelter for expeditionary hunting in today's society. By building a permanent structure like the log cabin, John was not asserting a property interest in park land.

Treaty rights, like aboriginal rights, must not be interpreted as if they were common law property rights. Any interest in the hunting cabin is a collective right that is derived from the treaty and the traditional expeditionary method of hunting. This cabin belongs to the band as a whole group not just to the one member, John Sundown, or any other individual that is part of the band. There are also limitations on permanency implied within the right itself. Provincial legislation that relates to conservation and that passes the justificatory standard that is dealt with in the sparrow case which could validly restrict the building of the hunting cabin. Also there must be compatibility between the crowns use of the land andthe treaty right claimed.

The third limitation on the treaty right to hunt is found inthe term of the treaty that restricts the right to hunt on lands that are not required or taken up for settlement. Neither the second or the third limitations apply tothe Sundown case. With the realisation that the Crown is not arguing on the grounds of conservation, the issue of weather they can be justified under the sparrow test is not to be considered for this appeal. Under's.

88 of the Indian Act, all provincial laws of general application apply to Indians subject to the terms of any treaty. Since the regulations in issue would conflict with treat six, which permits the respondent to build a cabin as an activity reasonably incidental to his right to hunt, they are beside the point to him under's. 88. Some factual information on John Sundown.

He is a member of the Joseph Bighead First Nation which is a member of the group that signed treaty number six. In 1992 Mr Sundown cut down 25 mature white spruce trees in Meadow Lake Provincial Park. He built his log cabin with these trees and it was approximately thirty feet by forty feet. He broke Parks regulations number six which states that you are prohibited from both the construction of a temporary or permanent dwelling on park land without permission. The next case deals with the surrendering of land from a First Nation to the government. In 1916 the Beaver Band of Indians entered into a treaty with the Crown.

In exchange for surrendering aboriginal title, the Band was given a parcel of land in British Columbia. The Band was nomadic, subsisting through trapping and hunting. The reserve was used as its site for its summer campground. In the winter, the band trapped further north. In 1940, the band surrendered the mineral rights on its reserve to the Crown, in trust to lease for its benefit.

At the end of world war two, the federal government instituted a program under which agricultural land was made available to veterans for settlement. The band was not using the reserve land for farming and after considerable discussion agreed in 1945 to surrender the reserve to the crown so it could sell or lease it to interested parties. The Department of Indian Affairs then transferred the reserve land to the Director of the Veterans Land Act (DVLA) for 70,000 dollars in march 1948. Part of that sum was later used by the Department of Indian Affairs (DIA) to purchase other lands for the band closer to its trap lines. The DVLA also obtained the mineral rights because they had not been reserved from the 1948 transfer. In the same year gas was discovered near the former reserve and in 1949 oil companies expressed interest in exploring the land for oil and gas.

Between 1948 and 1956 the land of the former reserve was sold to veterans. In 1976 oil and gas were discovered and the revenues from this discovery went to the veterans or their assigns. In 1977 the Beaver Band was divided into the Blueberry River and Doig River Indian Bands. That same year a DIA officer found out how the Beaver Band had lost the mineral rights and informed the appellant bands. The two Bands started their action on September 1978 claiming damages from the crown for allowing it to make an improvident surrender of the reserve and once surrendered for disposing of it under value.

They also claimed damages for permitting the transfer of the mineral rights to the DVLA and also the veterans. In the federal court, trial division, the trial judge dismissed the claims except for the sale of the surface rights to the DVLA which he found to be under value. He held however that the appellants action was bared by the thirty year limitation period under the British Columbia limitations act. The majority of the federal court of appeal dismissed the appellants appealand the crowns cross appeal on the issue of sale under value. At this point the appeal went to the Supreme Court of Canada and they decided that the appealand the cross appeal should be allowed.

It is stated that the appellants have not established that the Crown wrongfully failed to prevent the surrender of the reserve in 1945. Under the Indian act of 1927 the band had the right to decide weather or not to surrender its reserve and its decision was to be respected. The Crowns obligation was limited to preventing exploitative bargains. The Crown could refuse to consent to the sale if it thought that the band's decision was foolish. The court decided that the surrender of the mineral rights did not amount to anything that was exploitive. The duty of the crown was maintained and did not exploit the Indian Band and therefor the sale was valid and there is nothing the Band can do to change that.

These two cases are different in there outcomes but show how the Canadian Supreme Court works in ensuring the rights of many people who all want the same part of the package. I believe that the findings for the cases were well decided by the different people in charge and when a ruling is to be sent down there is no one group that gets exploited. In the end it is interesting to see how our legal system interprets the rules that have been around longer than evan this country. The next two Cases that we will explore deal with the Natives rights to create there own tax system and who to tax. The next case that we can look at is Canadian Pacific Ltd. versus Matsqui Indian Band. Amendments to the Indian Act enabled First Nations bands to pass their own by-laws for the levying of taxes against real property on reserve lands.

The appellant bands each developed taxation and assessment by-law provided for the appointment of Courts of Revision to hear appeals from theassessment, the appointment of an Assessment Review Committee to hear appeals from the decisions of the Courts of Revision and, finally, and appeal on questions of law to the Federal Court, Trial Division from the decisions of theAssessment Review Committee. The other bands provided for a single hearing before a Board of Review, with an appeal to the Federal Court, Trial Division. All the by-laws provided that members of the appeal tribunals could be paid, but did not mandate that they indeed be paid, and gave no tenure of office so that members might not be appointed to sit on future assessment appeals. Members of the bands could be appointed to the tribunals. The appeals were heard concurrently at all levels and turned on essentially identical facts.

Each appellant sent the respondent, Canadian Pacific Limited (CP), a notice of assessment in respect of the land forming its rail line which ran through the reserves. The Matsqui Band also sent a notice of assessment to the respondent, United Communications Inc., which laid fibre optic cables on the CPl and. The respondents commenced an application for judicial review in the Federal Court Trial Division, requesting that the assessments be set aside. CP claimed that its land could not be taxed by the appellant bands because it possessed fee simple in the rail line and the rail line therefore formed no part ofthe reserve lands. The appellants brought a motion to strike the respondents application for judicial review on the grounds that, the application was directed against a decision which could not be the subject of judicial review because of an eventual right of appeal to the Federal Court, Trial Division or, alternatively, theassessment by-laws provided for an adequate alternative remedy- an eventual right of appeal to the Federal Court, Trial Division. The motions judge accepted the second of these arguments and struck out the respondents application for judicial review.

The Federal Court of Appeal allowed an appeal from this decision, set it aside and dismissed the appellants motion to strike. At issue was whether the motions judge properly exercised his discretion to strike the respondents application for judicial review, thereby requiring them to pursue their jurisdictional challenge through the appeal procedures established by the appellant bands. The determination of whether or not the land was in the reserve was not at issue. The next case that was herd dealt with taxation as well the case is referenced as Union of New Brunswick Indians versus New Brunswick (Minister of Finance).

New Brunswick's Social Services and Education Tax Act levies tax on items sold for consumption at the time of the sale. In 1993, a provision giving status Indians an exemption from paying provincial sales tax on goods purchased off-reserve for on-reserve use was repealed so that only goods and services purchased on reserve lands or delivered there by the vendor were sales tax exempt. The respondents brought a test case involving items for personal use and consumption which had been purchased by Indians off the reserve for use onthe reserve. The trial judge concluded that's. 87 of the Indian Act, which exempts goods on reserves form taxation, applies only to property actually situated on a reserve. A majority of the Court of Appeal reversed this decision.

At issue here is whether New Brunswick Indians were required to pay provincial sales tax on goods purchased off the reserve for consumption on the reserve. The constitutional question queried whether, if as a matter of statutory interpretation's. 87 of the Indian Act prohibits taxation of tangible personalproperty purchased off-reserve, New Brunswick's Social Services and Education Tax Act was tendered inoperative to the extent of the inconsistency with's. 87. The court found appeal should be allowed., New Brunswick's Social Services and Education Tax Act is not inconsistent with's. 87 of the Indian Act because that section does not prohibit taxation in respect of tangible personalproperty purchased off-reserve even if destined for use on-reserve.

The previous two cases we can see how it is getting to the point of Indidnself government. The ideas on taxation are part of a government ability and by giving the right to taxation such as in the first case our government is slowly becoming more pron to the idea of self government. In the end we can see how these two cases are different from the first two that we talked about. They both deal with Native issues and all cases dealt withthe Indian Act as well as the Constitution Act but all four cases were dealt within individual basis and also different years.

This proves how our court has the ability to interpret the many different laws on an individual basis without any prejudged conceptions and how well our system can work.