Under section 91(24) of the Constitution Act, 1867, the federal government has exclusive legislative authority for “Indians, and Lands reserved for the Indians.” This responsibility, however, often overlaps with that of the provinces, whose authority extends to areas such as child welfare, education and policing. While “Indians” means all Indigenous peoples for the purpose of section 91(24), the federal government has historically tried to limit its responsibilities to the status First Nations population living on reserves, notably through the Indian Act, leaving other Indigenous peoples in a “jurisdictional wasteland.” These nuances have influenced the relationships First Nations, Inuit and Métis peoples have with the provincial and federal governments. The emphasis placed on federal and provincial responsibility has also historically overshadowed Indigenous peoples’ inherent rights, including their right to govern themselves.
Developments over the past decades in the areas of child and family services, education and policing illustrate how jurisdictional complexities may affect First Nations peoples and their communities, and how gaps have been filled by First Nations themselves as they assert their right to self‑government and self‑determination. To date, however, these developments have been more limited in scope and have mostly resulted from the federal government’s intention to incrementally devolve programming and service delivery.
Read the full text of the Background Paper: Understanding Federal Jurisdiction and First Nations
Authors: Sara Fryer and Olivier Leblanc-Laurendeau, Library of Parliament
Categories: Executive summary, Indigenous affairs, Law, justice and rights