I don't understand the scope of this legislation. Does it refer only to people living on a reserve, or to people of certain ancestry living at large?
If it's people on a reserve, then, yes, that's a federal authority, but if it applies to people living in provincial society, isn't that provincial authority? Section 91(24) doesn't give the federal government carte blanche, because section 91 applies only to matters outside provincial authority.
Section 91(24) is not limited to "people living on reserve", it includes two classes of subjects: "Indians" and "Lands reserved for Indians". It has often been policy practice for Indigenous peoples living in cities and towns off reserve to simply be subject to provincial policy, largely because there's often a federal legislative/policy vacuum. But federal authority extends to them as well, and so the "national standards" imposed in this particular law are valid.
I was looking forward to seeing your post on this matter so thanks for getting it out. I also wonder if you could say whether this case can be used to argue other federal devolution of authority like for example regulation of a fishery (Marshall 1999)? Rights are acknowledged there but regulation is still the authority of the DFO and this continues to be a huge area of disagreement in New Brunswick...leading to disputes and violence for 25 yrs now. Thanks again. Appreciate your work very much.
Hi Michele, Yes, I think in some contexts granting Indigenous communities more control over their fishing activities is even more straightforward as a lot of it is already exclusive federal jurisdiction. But this precedent will generally be important moving forward in many different areas, if the federal government chooses to.
I don't understand the scope of this legislation. Does it refer only to people living on a reserve, or to people of certain ancestry living at large?
If it's people on a reserve, then, yes, that's a federal authority, but if it applies to people living in provincial society, isn't that provincial authority? Section 91(24) doesn't give the federal government carte blanche, because section 91 applies only to matters outside provincial authority.
Section 91(24) is not limited to "people living on reserve", it includes two classes of subjects: "Indians" and "Lands reserved for Indians". It has often been policy practice for Indigenous peoples living in cities and towns off reserve to simply be subject to provincial policy, largely because there's often a federal legislative/policy vacuum. But federal authority extends to them as well, and so the "national standards" imposed in this particular law are valid.
Thanks for the clarity on a sometimes confusing Supreme Court decisions, the road ahead seems clear for Indigenous childcare and custody now.
I was looking forward to seeing your post on this matter so thanks for getting it out. I also wonder if you could say whether this case can be used to argue other federal devolution of authority like for example regulation of a fishery (Marshall 1999)? Rights are acknowledged there but regulation is still the authority of the DFO and this continues to be a huge area of disagreement in New Brunswick...leading to disputes and violence for 25 yrs now. Thanks again. Appreciate your work very much.
Hi Michele, Yes, I think in some contexts granting Indigenous communities more control over their fishing activities is even more straightforward as a lot of it is already exclusive federal jurisdiction. But this precedent will generally be important moving forward in many different areas, if the federal government chooses to.
Oh yes, I see. They could already be doing that if they wanted to...it's in their power already. Thanks.