| Indian reserve | |
|---|---|
| Category | Administrative division |
| Location | Canada |
| Created by | Constitution Act, 1867 |
| Created |
|
| Number | 3,394[1] (as of 2020) |
| Government | |
In Canada, anIndian reserve (French:réserve indienne)[nb 1] orFirst Nations reserve (French:réserve des premières nations) is defined by theIndian Act as a "tract of land, the legal title to which is vested inHis Majesty,[3] that has been set apart by His Majesty for the use and benefit of aband."[4] Reserves are areas set aside forFirst Nations, one of the major groupings ofIndigenous peoples in Canada, after a contract with the Canadian state ("the Crown"), and are not to be confused withIndigenous peoples' claims to ancestral lands underAboriginal title.
Canada has designated 3,394 reserves for over600 First Nations, as per the federal publication "Registered Indian Population by Sex and Residence," Indian Status is granted to members of a registered band who are eligible to live on these reserves. By 2020, reserves provided shelter for approximately half of these band members.[1]
Many reserves have no resident population, such as theKainai Nation (Blood) which hasBlood 148 (population 4,572 at the2021 census), andBlood 148A (population 0 at the 2021 census).[5][6] Typically they are small, remote, non-contiguous pieces of land, a fact which has led many to be abandoned, or used only seasonally (as atrapping territory, for example).Statistics Canada counts only those reserves which are populated (or potentially populated) as"subdivisions" for the purpose of the national census.
At the2021 Canadian census there were over 3,200 reserves across the country. Of these, 992 werecensus subdivisions, including 73 that had been added and 28 that had been removed since the2016 census.[7] Some reserves that were originally rural were gradually surrounded by urban development.Montreal,Vancouver andCalgary are examples of cities withurban Indian reserves.
Band governments may administer more than one reserve, such as theBeaver First Nation with two reserves,Boyer 164 andChild Lake 164A,[8] or theMembertou First Nation, withCaribou Marsh 29,Sydney 28A, andMembertou 28B.[9]
Some reserves are shared by multiple bands, whether as fishing camps or educational facilities such asPekw'Xe:yles, a reserve on theFraser River used by 21 bands.[10][11] Another multi-band reserve of theStó꞉lō peoples isGrass Indian Reserve No. 15, which is located inChilliwack and is shared by nine bands.[12]
After theRoyal Proclamation of 1763 but beforeConfederation in 1867, theUpper Canada Treaties (1764–1862 Ontario) and theDouglas Treaties (1850–1854 British Columbia) were signed. "Some of these pre-confederation and post-confederation treaties addressed reserve lands, hunting, fishing, trapping rights, annuities and other benefits."[13] GovernorJames Douglas of theColony of British Columbia, which formally became a colony in 1858, also worked to establish many reserves on the mainland during his tenure, though most of these were overturned by successor colonial governments and laterroyal commissions once the province joined Confederation in 1871.
In 1867, legislative jurisdiction over "Indians and Lands reserved for the Indians" was assigned to theParliament of Canada through theConstitution Act, 1867,[14] a major part ofCanada's Constitution (originally known as theBritish North America Act), which acknowledged that First Nations had special status. Separate powers covered "status and civil rights on the one hand and Indian lands on the other."[15][16]
In 1870, the newly formed Dominion government acquiredRupert's Land, a vast territory inBritish North America consisting mostly of theHudson Bay drainage basin that had been controlled by theHudson's Bay Company under itscharter with theBritish Crown from 1670 to 1870. Numerous aboriginal groups lived in the same territory and disputed the sovereignty of the area. TheDominion of Canada promised Britain to honour the provisions of theRoyal Proclamation of 1763 to "negotiate with its Amerindians for theextinguishment of their title and the setting aside of reserves for their exclusive use."[citation needed] This promise led to theNumbered Treaties.[17]
Between 1871 and 1921, throughNumbered Treaties with First Nations, the Canadian government gained large areas of land for settlers and for industry inNorthwestern Ontario,Northern Canada and inthe Prairies. The treaties were also called the Land Cession or Post-Confederation Treaties.[18]Treaty 1 is an agreement established 3 August 1871, between the Crown and variousFirst Nations in southeasternManitoba, including theAnishinaabe and theSwampy Cree tribes. Treaty 1 First Nations comprise theBrokenhead Ojibway, Fort Alexander (Sagkeeng),Long Plain,Peguis,Roseau River Anishinabe,Sandy Bay, andSwan Lake First Nations.[19]
The rights and freedoms of Canada's First Nations people have been governed by theIndian Act since its enactment in 1876[20] by the Parliament of Canada. The provisions of Section 91(24) of theConstitution Act, 1867, provided Canada's federal government exclusive authority to legislate in relation to "Indians and Lands Reserved for Indians".[14]
Wikwemikong Unceded Reserve onManitoulin Island is subject to theIndian Act provisions governing reserves even though its lands werenever ceded to the Crown by treaty.[21][22]
TheIndian Act gives theMinister of Crown–Indigenous Relations and Northern Affairs the right to "determine whether any purpose for which lands in a reserve are used is for the use and benefit of the band."[23] Title to land within the reserve may be transferred to only the band or to individual band members. Reserve lands may not be seized legally, nor is the personal property of a band or a band member living on a reserve subject to "charge, pledge, mortgage, attachment, levy, seizure distress or execution in favour or at the instance of any person other than an Indian or a band".[24]
While the act was intended to protect the Indian holdings, the limitations make it difficult for the reserves and their residents to obtain financing for development and construction, or renovation. To answer this need,Canada Mortgage and Housing Corporation (CMHC) has created an on-reserve housing loan program. Members of bands may enter into a trust agreement with CMHC, and lenders can receive loans to build or repair houses. In other programs, loans to residents of reserves are guaranteed by the federal government.
Provinces and municipalities may expropriate reserve land if specifically authorized by a provincial or federal law. Few reserves have any economic advantages, such as resource revenues. The revenues of those reserves that do are held in trust by the minister ofCrown–Indigenous Relations and Northern Affairs Canada. Reserve lands and the personal property of bands and resident band members are exempt from all forms of taxation except local taxation.
Corporations owned by members of First Nations are not exempt, however. This exemption has allowed band members operating in proprietorships or partnerships to sell heavily taxed goods, such as cigarettes, on their reserves at prices considerably lower than those at stores off the reserves. Most reserves are self-governed, within the limits already described, under guidelines established by theIndian Act.
Due to treaty settlements, some Indian reserves are now incorporated as villages, such asGitlaxt'aamiks, British Columbia, which like otherNisga'a reserves was relieved of that status by theNisga'a Treaty. Similarly, the Indian reserves of theshíshálh Nation are nowIndian government districts, theshíshálh Nation Government District.
Indian reserves play a very important role in public policy stakeholder consultations, particularly when reserves are located in areas that have valuable natural resources with potential for economic development. Beginning in the 1970s, First Nations gained "recognition of their constitutionally protected rights."[25] First Nations' rights are protected by section 35 of theConstitution Act, 1982. By 2002, (Valiente) First Nations had already "finalised 14 comprehensive land claims and self-government agreements, with numerous others, primarily in northern Canada and British Columbia, at different stages of negotiations." Land claims and self-government agreements are "modern treaties" and therefore hold constitutional status.
TheCanadian Environmental Protection Act, 1999 (CEPA), "places aboriginal participation on par with federal ministers and the provinces in the National Advisory Committee."[25] Among other things, CEPA clarified the term "aboriginal land" in 3 (1): "The definitions in this subsection apply in this Act. "aboriginal land" means (a) reserves, surrendered lands and any other lands that are set apart for the use and benefit of a band and that are subject to theIndian Act."[26] Under sections 46–50 of the CEPA, theNational Pollutant Release Inventory (NPRI) was initiated byEnvironment and Climate Change Canada. NPRI is the inventory of "pollutants released, disposed of and sent for recycling by facilities across the country".[27] The NPRI is used by First Nation administrations on reserves, along with other research tools, to monitor pollution. For example, NPRI data showed theAamjiwnaang First Nation inSarnia, Ontario, was "ground zero for Ontario's heaviest load of air pollution."[27]
By 21 December 2017, there were 67 long-termboil-water advisories that had been in effect for longer than a year.[28] These are "public water systems managed by the federal government".[28] There were also 18 communities that had "water issues for between two and 12 months."[28]
According to statistics gathered byHealth Canada and theFirst Nations Health Authority, in 2015, there were "162 drinking water advisories in 118 First Nation communities".[29] In October 2015,Neskantaga First Nation reported that its "20-year boil-water advisory" was "the longest running drinking water advisory in Canada."[29]Shoal Lake 40 First Nation was under an 18-year boil water advisory.[29]
By 2006,[30] nearly 100 Indian reserves had boil-water advisories and many others had substandard water.Ḵwiḵwa̱sut'inux̱w Ha̱xwa'mis First Nation, onVancouver Island, had a boil-water advisory beginning in 1997.[30] In October 2005, "highE. coli levels were found in theKashechewan First Nation reserve's drinking water and chlorine levels had to be increased to 'shock' levels, causing skin problems and eventually resulting in an evacuation of hundreds of people from the reserve and costing approximately $16 million."[30]
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