1E9Ct5D

Section 25 does not stand alone, however,and must be read in conjunction with othersections of the Charter, including section 1which provides that the rights and freedomsset out in the Charter are subject to “suchreasonable limits prescribed by law as canbe demonstrably justified in a free anddemocratic society.”Recent Federal Statutory DevelopmentsThis is another fluid area of Aboriginal law.The federal government has recentlyenacted legislation governing matrimonialproperty on reserves, and has alsoproposed legislation on First Nationseducation. Both aim to give First Nationsmore control over these areas.The Application of Provincial StatutesIt has been discussed that section 91(24) ofthe Constitution Act, 1867 gives Parliamentthe exclusive power to make laws related to“Indians, and Lands reserved for theIndians.” Historically, one effect of thisconstitutional authority was to limit theapplication of certain provincial statutes toFirst Nations and to reserve lands.Determining whether and which provincialstatutes apply to reserve lands can be acomplicated process. There are two options:provincial laws may apply “ex propriovigore” (of their own force) – the usual route– or via section 88 of the Indian Act. It isdifficult to provide a comprehensive list ofwhich provincial statutes will or will notapply, and extra care should be takenwhere the provincial law relates to land.However, the law seems to be movingtowards a general assumption that theprovincial legislation applies, unless there isa specific interference with Aboriginalinterests that cannot be justified.This is certainly the case where the land isheld under Aboriginal title. The SupremeCourt of Canada has recently said that“provincial laws of general application” willbe presumed to apply to land held underAboriginal title, unless the provincial lawbreaches the Aboriginal right to the land. Abreach will be proven if the provinciallegislation is unreasonable; imposes unduehardship on the Aboriginal group; preventsthe Aboriginal group from exercising its rightover the land in its preferred manner; andcannot be justified by the province. It isunlikely that provincial laws governingmatters like environmental protection wouldbe found to unjustifiable infringe Aboriginaltitle, so legislation of that nature would likelyapply.ABORIGINAL TITLESui Generis Land InterestIn Canada, Aboriginal title refers to a distincttype of proprietary land interest that arisesfrom the occupation and use of land byAboriginal societies prior to Europeansettlement. It is often described as a suigeneris interest, meaning that it is unique toAboriginal people and Aboriginal culture.Aboriginal title operates differently fromtypical proprietary land interests, in that:Title must be held by a communityrather than an individual;The land interest is communal,where all members of an Aboriginalgroup have a collective right to theland interest;The root of Aboriginal title is nottraced from a Crown grant but tracedfrom the first occupancy of land byan Aboriginal group seekingentitlement; andAboriginal Law 147