Provincial Law of Applicability is a negative law for Indigenous peoples
The Provincial Law of Applicability deals with welfare service delivery for the First Nations people and the communities. One of the prominent aspects of the First Nations People Welfare in Canada is the diversity in culture and their organization. Shorn of legal authority, the Canadian government would execute child welfare for the First Nations families who resided on the reserves, especially before the 1950s. At the time, there was no legal basis for the intervention by the Indian Agent, on a neglected and abused on an emergency basis. The allegedly abused child would then be sent to a residential school.
After introducing the provincial Law of Applicability in the 1950s, the provincial authorities engage in child welfare activities within the reserve without a distinction between different government levels. The enactment of the provincial law of applicability occurs in several revisions of the Federal Indian Act and Section 88 (Tait, 2017). The section provides for the restriction for the application of the constitutional responsibilities of the Federal Government. This paper will illustrate that the Provincial Law of Applicability is a negative law to the First Nations people and the community in general.
Provincial Law of Applicability: Federal Indian Act’s jurisdiction
The provisional welfare was placed under the Federal Indian Act’s jurisdiction, something that led to legal complications on its implementation. Furthermore, the provinces have the legal capacity to provide child and family services to other people beyond their constitutional jurisdiction. This is subject to the Canadian government’s Act of the Parliament with its application across time. The Federal government was relinquished the legislative enactment of the child welfare of the First Nations People.
Furthermore, an explicit reference on child welfare is not referred to in the Constitutional or Indian Act, which facilitated them being designated to the Federal Government (Sayers, 2021). This granted the provinces the ability to interfere with the way of life within the reserves. However, even after reducing the power of the Indian Agent, the Indian Act continued to allow the exploitation of child welfare to send the indigenous people to the residential school, thus facilitating a cultural genocide.
Despite the Provincial Law of Applicability enactment, various contemporary issues have persisted among the First Nations People within and beyond the reserve schools. This includes removing the First Nation’s people from the reserves, where their families live and sending them to schools. This led to worsening emotional and psychological trauma, resulting in social ills like domestic violence, high suicide rates, and high unemployment rates.
The overemphasis on the Christian religion also played a critical role in demining the cultural diversity among the various First Nations tribes (Shipley, 2017). The Provincial Law of Applicability provides this in providing welfare services to the First Nations people under the Child and Family Services Agency. It is also essential to note that despite the shared responsibility of the First Nations on welfare, the Provisional Law of Accountability failed to facilitate the reasonable distribution of jurisdictional authority in decision-making.
Provincial Law of Applicability: Self-government Model
The self-government model is provided under the Provincial Law of Applicability and focuses on recognizing the Indigenous people’s jurisdictional authority. This First Nation’s people are granted the ability to set the provincial standards on family and child services. In addition to this, the model is based on the global culture and history in addressing welfare.
However, the law was not contextualized to the First Nations people’s culture, thus further facilitating the Canadian government’s cultural genocide efforts. Furthermore, the First Nations People stopped being served by the Aboriginal Child and Family Service Agency. This can be attributed to the small economies of scale leading to a reduction in human and financial resources, thus exacerbating the federal government’s reliance on welfare.
Negative Impact of the Provincial Law of Applicability
Despite the significant negative impact of the Provincial Law of Applicability, it can be perceived as a positive law as it increased the transfer of economic resources from the Canadian government to the First Nations community. However, this economic benefit was in the form of welfare targeted to First Nation’s people (Edwards, 2020). The law also facilitates the improvement of community accountability in the decision-making process and the management of wellbeing at the community level.
Conclusion: Provincial Law of Applicability
In conclusion, the Provincial Law of Applicability established a system of control in the First Nations People reserves, thus leading to a paternalistic and homogenizing manner without recognizing the diversity of the Indigenous people in the country. Furthermore, the health of the First Nations People’s culture was negatively affected, for example, through the loss of land, traditional food, and economies. Therefore, the Provincial Law of Applicability is more negative than positive law as it fails to promote equality.
References: Provincial Law of Applicability
- Edwards, A. (2020). When knowledge goes underground: Cultural information poverty, and Canada’s Indian Act. Pathfinder: A Canadian Journal for Information Science Students and Early Career Professionals, 1(2), 19-35.
- Sayers, A. (2021). Canadian Indian Act Modernism. Modernism/modernity Print Plus.
- Shipley, W. B. (2017). Governance disputes involving First Nations in Canada: culture, custom, and dispute resolution outside of the Indian Act. In Comparative Law and Anthropology. Edward Elgar Publishing.
- Tait, M. J. (2017). Examining the provisions of section 87 of the Indian Act as a means to promote economic participation and treaty implementation.