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The Firearms Act and Canada’s First Nations

The Firearms Act and Canada’s First Nations

People think that the aboriginal peoples have some sort of exemption regarding the provisions of the Firearms Act.  There are minor but important points involved here, and one gigantic time bomb.  I will deal with the minor points first:

The native peoples do not have any kind of an exemption.  C-68’s Firearms Act section 117(u) authorizes the Governor in Council (a thinly-disguised Minister of Justice) to issue Orders in Council (with force of law) “respecting the manner in which any provision of this Act or the regulations applies to any of the aboriginal peoples of Canada, and adapting any such provision for the purposes of that application.” There are several interesting points to be made about that little gem.

First, it may APPEAR to be a provision enabling the government to discriminate IN FAVOR of aboriginal peoples — but look again.  It is EQUALLY a provision authorizing the government to discriminate AGAINST the aboriginal peoples.  For example, an “aboriginal people” (which can, for example, be taken to mean one tribe or the residents on one or more reservations) may block a highway over some dispute regarding land claims, forest rights, etc.  Hey — it HAPPENS.  FAs.  117(u) then apparently authorizes the Minister to revoke every firearms licence and registration certificate held by any member of that “aboriginal people,” so that they can be disarmed by the police or army without having to bother getting a court order.

Note the wording of FAs.  117(u): It does not say, “any aboriginal person of Canada.” It says, “any of the aboriginal peoples of Canada.” That allows discrimination between any of the groups forming “aboriginal peoples” — lawful(?) discrimination on a tribe-by-tribe basis, if one cares to recognize each tribe as an “aboriginal people.” That, in turn, opens any attempt to exercise the powers given in FAs.  117(u) to court action based on the Canadian Charter of Rights and Freedoms – — which requires that everyone be “equal before and under the law.”

Everyone has the right “to the equal protection and equal benefit of the law without discrimination, and, in particular, without discrimination based on RACE, NATIONAL OR ETHNIC ORIGIN, COLOUR, religion, sex, age, or mental or physical disability [CCRF 15].” Therefore, any attempt to USE FAs.  117(u) is likely to run head on into Charter conflict for discrimination based on “race” or “national of ethnic origin” or “colour.”

Note that FAs.  117(u) CANNOT be used to alter anything that is written into C-68’s Firearms Act or Criminal Code alterations.  An Order in Council CANNOT alter legislation, it can only do what the legislation SPECIFICALLY authorizes the Governor in Council (actually, the Minister of Justice, acting alone or almost alone) to do through Orders in Council.  The CFC and Department of Justice do not seem to have grasped that basic principle of law.

When the NFA was consulted by the CFC last spring, several proposed Orders in Council were disclosed to us — OICs that CLEARLY violated that limitation.  That is enough on the SMALL problems built into C-68.  The BIG one is probably going to blow the entire Act out of the water the first time it is used by a lawyer representing an aboriginal person.

When the government negotiated the James Bay Treaty with the aboriginal peoples, one of the provisions was that the Treaty would become a part of the Constitution of Canada.  Therefore, any violations of the terms of that Treaty are unconstitutional — and legislation enacted WHILE violating that Treaty is void from its day of birth.  The Treaty requires that any legislation that will have any effect on aboriginal hunting must be presented to and scrutinized by a council set up by the Treaty itself, BEFORE being presented to Parliament for action.

That was not done — although C-68 clearly DOES heavily affect aboriginal hunting.  During the House Committee hearings on C-68, Reform MP and Justice Critic Jack Ramsay brought that out very clearly.  The government admitted that it had not done what the Treaty required.

Liberal Chairman Warren Allman refused to allow the Committee to drop the consideration of Bill C-68 for unconstitutionality, and the Committee’s Liberal majority voted to ignore the entire problem.  That was an incredible demonstration of arrogance, ignorance and incompetence.  It is going to come back to haunt the Liberals.

The first time an aboriginal person is up on charges under ANY provision of C-68, his lawyer is going to be able to claim that C-68 was never legally before the House, therefore could never have been legally enacted, and it is therefore null and void in its entirety.

I do wonder what the Supreme Court of Canada will do with THAT mess.