‘Zombie laws’ reveal history of colonization

Indian Act statutes offer insight into an ugly aspect of Canada’s past

Every so often the government has to revisit old legislation and renovate and discard obsolete laws that remain on the books long after they serve a useful purpose. Recently, the federal Minister of Justice, Judy Wilson Raybould, tabled legislation to remove “zombie laws” from the Criminal Code. These are laws that have been struck down by the courts or are past their best before date. For example, it will no longer be against the law to challenge someone to a duel. From now on, Canada will be known as the nation of universal medical care and the Charter of Rights and Freedoms, and the country that tolerates consensual fighting. Of course it’s not a carte blanche if you decide to participate in a duel. You will face charges such as unsafe use of a firearm, attempting to injure, attempted murder or — if you’re the successful party — murder. Also, it’s no longer illegal to fraudulently practise witchcraft. Which begs the question: how did they determine between fraudulent witchcraft and the real thing? The Indian Act is a rich treasure trove of obsolete laws. According to this legislation, First Nations governments have a list of responsibilities that includes prevention of disorderly conduct and nuisances, destruction and control of noxious weeds, and the regulation of beekeeping and poultry raising. First Nations self government and the version dumped on us by the colonial office are poles apart. In the Prairie provinces, any Indian wishing to sell farm produce must have a permit from the Indian Agent. Here again, this section hasn’t been used for years, but it was still incorporated in the Indian Act revisions of 1951. Section 93 states that the Minister must approve of the removal of gravel, minerals, stone, sand, clay or soil, or trees, saplings, shrubs, underbrush, timber, cordwood or hay from a reserve. If someone tries this without the minister’s written permission, he or she will be liable for a fine of $500 or three months in jail. The pass system that was implemented to control Indians and keep us on the reserve was never included in the Indian Act, nor was it passed by order in council. The pass system was merely a policy imposed by the Department of Indian Affairs. There are historical accounts of the RCMP refusing to lay charges because it was not passed in legislation but only an act of bureaucratic repression. While the liquor laws have been liberalized to allow First Nations people access to alcohol, according to the Indian Act it is against the law to provide liquor to an Indian either on or off the reserve. If I go to a bar and a non-Indian friend of mine buys me a drink, he has broken the law. To illustrate our perceived status in this country, “a municipal or local authority or a corporation is empowered to take or to use lands or any interest therein without the consent of the owner; the power may, with the consent of the Governor in Council and subject to any terms that may be prescribed by the Governor in Council, be exercised in relation to lands in a reserve or any interest therein.” In other words, if a government, municipality or corporation wants our land, they can legally take it. So at one time a pipeline could legally be pushed across Indian Land under the terms of the Indian Act. This section thankfully is redundant because the Supreme Court ruled that First Nations must give their informed consent when resource projects are concerned. The old colonial administration ruled our lives from the womb to the tomb. We can’t even die unmolested. The Indian Act states, “No will executed by an Indian is of any legal force or effect as a disposition of property until the Minister has approved the will ... ” I doubt if this clause is used anymore, but the law is still on the books. When people read the Indian Act, they can’t believe that we have such a colonial piece of legislation in this day and age, but that’s the reality of being a First Nations person in Canada.