Opinion: Whose Law is it Anyway?

By Alain Bartleman and James C. Hopkins 

Section 88 of the Indian Act was intended to clarify the application of laws on a reserve. Instead, it’s catapulted obscure legal questions into a daily headache for First Nations.

Mechanics shouldn’t put diesel in a gasoline engine. Chefs shouldn’t mistake Celsius for Fahrenheit. Bakers shouldn’t swap baking soda for baking powder. And lawyers should probably cite the right law when making their case. Yet, and unlike in the case of hapless mechanics, bakers, and chefs, it’s perfectly possible for competent lawyers working in Aboriginal law to make basic mistakes over which law to apply. In the case of the Indian Act, some legal experts caution it ought to be expected. The laws surrounding First Nations are complex and questions like whether to simply apply provincial or federal laws illustrate how complicated and out of proportion the solutions are. The culprit in this instance can be blamed on section 88 of the Indian Act, which unduly complicates the question of jurisdiction.

Section 88 of the Indian Act states that subject to any “treaties or federal laws” to the contrary, “all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province.” This makes section 88 unique because it is the only statutory provision of a federal law that tells the reader provincial law applies to First Nations, a group that the constitution places exclusively under federal authority. Like much of the Indian Act, section 88 came from a paternalistic attempt to protect existing rights of First Nations while simultaneously encouraging the provinces to play a greater role in the assimilation or “integration” of First Nations communities.  Originally passed in 1951 as part of the same set of amendments to the Indian Act that gave us the Indian Register and the “Double Mother” rule, section 88 was passed without meaningful input from First Nations leaders, and still less debate in Parliament. As noted in Kerry Wilkin’s excellent article, “Still Crazy after All These Years”, section 88 was borne of two contradictory impulses. The first impulse was the need to protect Treaty rights from provincial encroachment. The second impulse, and arguably the more powerful of the two, was to reinforce Canada’s policy of assimilation by forcing First Nations to obey provincial laws. It is difficult to see the legislative intent differently considering that “registered Indians” could not legally vote in federal elections until 1960.

Canada is a federation (technically, a “confederation”) in which decision-making authority is split between the federal and provincial governments. The Constitution Act of 1867 determines which area of authority is given to which level of government. Section 91(24) of that law reserves jurisdiction, or rule-making power, over “Indians and Indian Lands” for the federal government. Regulation of “local matters”, by contrast, are reserved for the provinces. Cases in which laws overlap are commonly resolved by looking at the “heart” of a law to determine its “pith and substance”, with cases of true overlaps generally resolved in favour of the federal government. So, to use the example of a motorist without insurance, looking at the “pith and substance” of a provincial automobile insurance law would allow the application of a provincial law requiring that a motorist hold valid automobile insurance on-reserve, since the heart of the legislation would not touch on the heart of the federal power.

Section 88, by contrast, would reinforce the application of provincial powers by bringing those provincial powers into the federal law – thereby making them applicable to Indians- unless there existed a federal law, or treaty, to the contrary.

There are limits to what section 88 can do; however, most notably in that it prohibits the provincial regulation of Indians qua Indians. After 34 years since the passing of section 88, the Supreme Court provided a clear explanation of the application of section 88 in Dick. Writing for the Court, Justice Beetz noted that section 88 allowed for provincial laws to apply to Indians for so long as they did not seek to regulate Indians in their capacity as Indians.

However, the relatively short decision left a few questions remaining. The first, and most obvious question, is what is meant by the term “in their capacity” as Indians. If a band council, exercising (for sake of simplicity), its right to pass bylaws on speeding, smoke detectors, or environmental regulation, would its laws trump those of the province, since the right of a band to pass bylaws is at the heart of its capacity as a political organization affirmed and recognised by the federal government? Likewise, are courts, being comprised almost exclusively of non-Indigenous persons, in the best position to determine what lies at the heart of “Indianness”? Until such time as the courts can better fix section 88, we seem to be stuck with another paternalistic and unduly complex law.

Sadly, the law is unlikely to change anytime soon. Much ink and millions of dollars in legal fees have failed to provide a better guidepost than that provided by the Supreme Court writing in 1985. It’s doubtful whether the Court will, or even can, impart more clarity on a law drafted with such seemingly contradictory purposes. Until such time as we can fix the Act however, we are stuck, to adapt the words of Kerry Wilkins, with “Crazy 88”.

The content provided in this post is to be considered as legal information only. It is not legal advice and does not necessarily reflect the opinion of Nahwegahbow Corbiere.