CHARTER OF RIGHTS MAY NOT APPLY TO THE PROPOSED NISGA'A GOVERNMENT

John Cummins, M.P.
Delta-South Richmond

News Release

FOR IMMEDIATE RELEASE
May 12, 1999

CHARTER OF RIGHTS MAY NOT APPLY TO THE PROPOSED NISGA'A GOVERNMENT

OTTAWA--"Canada's Charter of Rights and Freedoms may not apply to the proposed Nisga'a government as contemplated by the Nisga'a Treaty," said John Cummins, M.P. (Delta-South Richmond).

Cummins asked the Government the basis of the Charter's application to the proposed Nisga'a government today in Question Period:

"The Government of Canada has said that the Charter of Rights and Freedoms applies to the Nisga'a Government."

"Yet the Charter only applies if the Constitution says it applies. And the Constitution limits the application of the Charter to the federal and provincial governments or their agents."

"The Charter does not apply simply because the government says it does or even because the Treaty says it does."

"As the Nisga'a government is neither, by what authority does the Charter apply to the Nisga'a government?"

The Minister of Indian Affairs was unable to show how the Constitution guarantees the application of the Charter to the proposed Nisga'a government.

The Constitution Act, 1982, provides that the Charter of Rights and Freedoms specifically applies to the federal and provincial governments. To cure the failure to specifically include aboriginal governments, the Charlottetown Accord, 1992 contained a special provision that would have added aboriginal governments to the Charter application section in the Constitution.

"The issue of the application of the Charter to the proposed Nisga'a government is too important to be left to mere orations from the Minister of Indian Affairs," said Cummins.

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For more information, please contact:

John Cummins, M.P.
(613) 992-2957

BACKGROUNDER

APPLICATION OF CHARTER TO ABORIGINAL GOVERNMENTS

Which Governments does the Charter Apply to?

• The Charter applies to the federal and provincial governments and their agents.

• The Constitution Act, 1982 is very clear on this point. At s. 32 (1) it states: "This Charter applies (a) to the Parliament and the government of Canada..; and (b) to the legislature and government of each province..."

What about new aboriginal governments established by Treaty?

• The Charter applies to aboriginal government under the federal Indian Act because band government is created by and operates under the authority of federal legislation.

• The Charlottetown Accord, 1992 would have amended the Constitution Act, 1982 to have the Charter apply to new aboriginal governments, such as those created by Treaty.

• S. 26 of Charlottetown would have amended s. 32 of the Constitution Act, 1982, the Charter application section, by adding the words: "to all legislative bodies and governments of the Aboriginal peoples of Canada in respect of all matters within the authority of their respective legislative bodies".

• The Charter application section, s. 32 of the Constitution Act, 1982, does not specifically include aboriginal governments, i.e. those not created by either federal or provincial legislation, and whose operating authority is independent of them, are not specifically included.

What about the Nisga'a Government established by the Nisga'a Treaty?

• Nisga'a government is not created by federal legislation nor will it operate under the authority of federal legislation such as the Indian Act and therefore is not covered by the Charter's application section.

• Nisga'a government is not created by provincial legislation nor will it operate under the authority of provincial legislation such as a Municipal Act and therefore is not covered by the Charter's application section.

• Nisga'a government would have been covered by Charlottetown's s. 26 amendment of s. 32 of the Constitution Act, 1982, the Charter application section, had the Charlottetown amendments become part of the Constitution.

May 12, 1999