Canadian Aboriginal Law - Essay Example

Canadian Aboriginal Law The Canadian Aboriginal law is the customs legislation by aboriginal people upheld in the Canadian Supreme Court. It is a doctrine of Western law that was adopted to disparate the people’s fundamental rights of using and being governed by their own laws. It concerns various issues related to the aboriginal people in Canada by providing specific rights to traditional practices and land. However, the doctrine interprets, controls, and enforces several treaties agreed between the Aboriginal people and the government. This assists in managing and bonding the interaction between the government and the aboriginals. The aboriginal law was adopted from several sources of legislation since Section 91 (24) of the 1867 Constitution Act gives federal parliament the powers to legislate on matters affecting or relating to the Indians and their reserved land. Such mandate has led to enactment of various legislations including Indian Oil and Gas Act, Indian Act, and First Nations Land Management Act among others as discussed by Elkins (1999 p23). However, there had been a breakdown of the rule of law for Aboriginal people as this paper discusses. The study also describes how breaking the laws affect the Aboriginal people and the involved stakeholders such as the governmental agents. The study points out various aspects of the breakdown of the rule of law and government defiance in respect to aboriginals. The first aspect is the way the Aboriginal people are colonized internally in Canada through processes of cultural suppressions, breaching the trust and promises, legislative, dispossession, and public discriminations. The Aboriginals have no freedom of dispossessing their traditional resources and land in Canada. There had been forced relocations and taking of First Nations’ land and resources that increase the dispossession cases from indigenous people. There has also enforcement and enactment of other policies, laws, and practices perceived to weaken the Aboriginal societies and economies, forcing the people to be assimilated into Canadian mainstreams. The Aboriginal Law reinforces the approach of colonialism by ignoring the fundamental rights of the aboriginal people, especially the rights treaty (Hogg p.631). The Canadian Constitution ironically, recognizes such legislations. Moreover, the federal government of Canada continues to strengthen and maintain the domination of Indian Act by adopting legislations that affect the Aboriginals’ human rights of determining and governing their own political future. The federal government also breaks the law by refusing to fairly, promptly, and equal address several cases of private or governmental theft of Aboriginal’s reserved land and resources. This undermines the rule of law and hinders the aboriginal people from getting their justice. Another aspect is the dishonor of treaties between the government and the Aboriginal people. The treaties gives a fundamental framework for the First Nation people to govern themselves and their cultural diversities be respected by all stakeholders in the country. Unfortunately, the dishonor by the federal government of the treaties means the infringement of law and order. This gives the government an opportunity to oppress the aboriginals, especially discriminating them from better public service deliveries. This results to poor governmental services to the society such as health, water, poor infrastructures, and food safety among other services. Study reveals that among the diseases such as Tuberculosis are commonly affecting the Aboriginal societies, as compared to un-Aboriginals in Canada. Other diseases such as diabetes were uncommon to the Aboriginal society, but it is currently affecting them at the highest rate as compared to the rest societies in the world (Coon, 2003). This is because the government discriminate them from the medical services such as insurance care system. The life expectancy of Aboriginal people is six years lower than the non-Aboriginal Canadians. This shows the impacts caused by the adoption of Aboriginal doctrine, especially the refusal to implement the agreements outlined in it. In addition, the women from the Aboriginal society living in reserves are the major victims of discrimination, sexual racism, and the increasing domestic violence. The cases are mostly motivated by lack of conviction or prolonged and delayed investigation of the crime leaving the perpetrators free, thereby denying the victims justice for their violated human rights (Dupuis, 2002). This is caused by the abandonment of Aboriginal law of culture and traditions. In this case, there is need to recognize the Aboriginal customary laws, in order to ensure the appropriate support and protection to women is considered. The Aboriginal customary laws have inhumane and unacceptable punishments and treatments of the people that hinder it from being accepted in the society. The basic human rights should be guaranteed whenever the legislation is accorded in order to refrain from affecting only the individuals from a single party in the Canadian society. The legislation has been criticized of being divisive to the society, especially in public opinions in the lines of racial integration and unity. It creates the undesirable legal pluralism, and many professionals argue that the constitution should provide the law for all, and desist from dividing the society as advocated by the federal system. However, the doctrine allows the discriminatory protection and service delivery to the Aboriginals in Canada. The dispossession practices constitute an extraordinary, refined, and evolving scope of social warfare against the Indians living in Canada. According to the Amnesty International (1985), the Ipperwash case was an evidence of extrajudicial executions, where the security agents falsely insisted on claiming they were returning fire from attackers. The police portrayed the Aboriginals as being armed, although investigations showed they had killed unarmed person. In Canada, the Aboriginal people were mischaracterized as insurgents due to their lethal responses against the forceful, harsh, and oppressive government. The use of force and violence had been eminent in Canada where Indian chiefs and other leaders were executed as a political tool to avert the Aboriginals’ governance. This is against the rule of law where the leaders should be prosecuted, in case they oblige the laws set but not to execute. However, the systematic application of statutory and judicial “violence” by government acts in infringement of law and order of the country. The government uses such the approach of state violence to oppose the vibrant and informed Aboriginals, clergies, and their lawyers who articulates the protests for their rights. Moreover, the adoption of oppressive, discriminative, and forceful legislations have caused various responses and reactions among the Aboriginal people, who are currently scattered throughout the country. As a prove to show their faith in social institutions, the Aboriginal people, their supporters and lawyers filed thousand of cases in courts, and negotiation efforts, despite the challenges they face such as delay, costs, and discriminatory convictions. Even though there negotiation and legal victories on cases files by Aboriginal people, one can be concerned on the level at which they lack resources and become landlessness. There have been protests and marches that are done peacefully and non-violent throughout Canada. Unfortunately, the non-native mobs and state marshals respond with threatening and overwhelming forces. This obliges the constitutional protection of the Aboriginal human rights, as well as the treaty rights. In addition, the dishonoring the treaties and negotiations agreed by the First Nations with the Canadian federal government have also affected the employment sector. Aboriginal people have been affected of unemployment that has caused the young people in the society to take control of their own livelihood. This is because the society are perceived to be extraordinary in absorbing discrimination, socio-economic, and legal pain sustained from oppressions from the federal government and the Canadian people. They receive such humiliation as an approach to assimilate their customary believes and culture, and thus their elimination. The responses of the Aboriginal people are unique from other similar occurrences in the world. The calculated abuse and injuries heaped upon the aboriginals is equivalent to the black South Africans, which against the rule of law and should be taken for granted. People need to be curious on the acts and propose fundamental changes on the legislations aimed at achieving the discriminatory objectives. In this case, the constitutional amendments and evaluation of negotiated treaties are needed in order to address the challenges facing the Aboriginal people. This will also ensure the customary rights and culture of the Aboriginals are safeguarded from being assimilated by the Canadian customs. On the other hand, there are tragic civil responses by the Aboriginals from the harsh, insults, discrimination, and oppressive conditions they encounter. They include increased instances of alcoholism, suicides, internal violence against the communities or self. According to RCAP (1996), the suicide statistics among the Aboriginal society sent a shocking and blunt message in Canada that most Aboriginals prefers dying than living. The report continues to identify the root cause of the suicide cases as living hardships, which are politically motivated, adapted from oppression and colonial perspectives. Other implications of breaking the rule of law in adopting Aboriginal law include high rates of drug abuse, alcoholism, and gas sniffing that is parallel to suicidal activities leading to violent injuries and deaths. In some cases, the prohibition of liquor to the Aboriginals helped to control the issue of harm and deaths, although the legislation was against the rule of law in giving them their civil rights. These notions show the hopeless life underwent by the Aboriginals in Canada and such criminal activities are survival comforts, inclusion, and acceptance of their culture. Such situation can be addressed by stabilizing the social, political, economic, and cultural diversities among the Aboriginal societies in Canada. This is because the political tensions among the leaders in the aboriginal society create fear of executions by the governmental agencies in order to achieve the assimilation and colonizing objectives. The economical stabilizations will make the society financially strong in fighting their fundamental rights that are abused by the federal government or other Canadians. The social and cultural diversities will ensure a well-united society and practice their customs in interacting with one another. However, the resistance and protests among the Aboriginal people, as discussed, do not show the legal order and civil responsibilities in respect to rule of law. This is because the protests and resistances attract harsh and inhumane punishments by the Canadians and the government as a response to the activity, which is against the rule of law since everyone has a fundamental right to protest against the violation of their rights. In addition, it is a breach of laws for one to abuse drug and alcohol, or even commit suicide as a response to their violation of rights. It is a civil responsibility to maintain, assist, and protect the life of a person. Responding with activities that can cause harm or even death to a person is against the rule of law, as one is responsible to follow the legal processes in order to address any itching or impending issues towards their lives. The legal processes may include judicial platforms or negotiating approaches that are objected to solve any disparity. However, the paper exposes the concurrent treatment processes of Canadian Aboriginal people to be historically wrong, which includes the discrimination and displacement, forced relocating, colonial treatment, forced assimilation, and societal destruction. It also involves the cultural genocide of the Aboriginals. The application of Rule of Law and the supreme laws in court have been used for many centuries and still acts as a tool to dispossess and subjugate the Aboriginals. The major problem surrounding the issues affecting the Aboriginal society in Canada is the legal oppressive realities they face through the breakdown of the rule of law. The efforts to eliminate and assimilate the Aboriginal people in Canada were a denial of rule of raw principles that promotes justice, peace, and harmony in the country. However, the assimilation policies failed in Canada because Aboriginal people were civilized, although they suffer a lot from the discriminatory and oppressing situation they undergo. It was impossible for the Aboriginal people to be assimilated due to their secretive nature of their culture for its survival. The Canadian Aboriginals have their personal enduring sense, especially in the uniqueness of their heritage and their rights to continue with their culture (Bell & Val, 2008). Therefore, the Canadian government breaks the rule of law of not giving the Aboriginal people their rights to continue with their culture. Their fight for their cultural rights drives them to protest by blocking roads, and occupying the sacred locations in solidarity of their culture. They protests to resist against the merging of their Aboriginal culture with Canadian customs, which is a cultural suicide. In conclusion, the adoption of Aboriginal customary laws in Canada has been surrounded by the breakdown of rule of law. This is through the adoption of various legislations that violates the fundamental human rights that allows forceful eviction, oppression, and assimilation of the Aboriginal people and culture. The government uses oppressing judicial system to discriminate, assimilate, and dispossess the Aboriginals’ land and resources. On the other hand, the Aboriginal people respond uniquely by absorbing the injuries imposed against them; or else commit suicides and involve themselves in drug abuse as an approach to make them comfortable. In order to end the breakdown of rule of law, the Canadians need fundamental change in understanding that the Aboriginals are also nationals. They should also recognize the cultural and political groupings of the Aboriginal society with distinct way of life and values from Canadian way of life (Smith, p.16). Works Cited Amnesty International. “East Timor violations of human rights: extra-judicial executions, “disappearances,” torture, and political imprisonment, 1975-1984.” London: Amnesty International, 1985 Bell, Catherine, & Val Napoleon. First Nations Cultural Heritage and Law: Case Studies, Voices, and Perspectives. UBC Press, 2008. ISBN 978-0-7748-1461-4 Coon C. Matthew. “Remarks to the British Association of Canadian Studies.” (Lecture given to the British Association of Canadian Studies). Leeds, 9 April 2003 Dupuis, Renee. Justice for Canada's Aboriginal peoples. James Lorimer and Company, 2002 ISBN 1-55028-775-3 Hogg, Peter. Constitutional Law of Canada, 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003 RCAP Publications. Choosing Life: Special Report on Suicide among Aboriginal People. CD ROM: Ottawa: Libraxus, 1997 Smith, David. The Republican Option in Canada. Toronto, Buffalo, London: University of Toronto Press, 1999 ISBN 0-8020-4469-7. Read More