Still Crazy after All These Years: Section 88 of the Indian Act at Fifty

Abstract

Section 88 of the Indian Act which provides, as a matter of federal law, for the application of much provincial law to Indians, is fifty years old this year: an apt time to review what we know of its origins and to reflect on the impact it has had on the Canadian law of Aboriginal peoples. This article attempts just such an assessment. As it turns out, we know very little about the reasons for s. 88 's enactment; when introduced, it attracted almost no scrutiny from the public, in Parliament, or even at Cabinet. In the years since, we have paid dearly for that inattention. By happenstance, it has managed to fulfill its original mandate to protect Aboriginal peoples' treaty rights from the impact of standards enacted provincially. In almost every other respect, however, s. 88 has given rise to confusion and to controversy, frustrating courts' efforts to apply it coherently, thwarting Aboriginal peoples' (and others') attempts to tell what mainstream law prescribes, and complicating otherwise routine tasks of enforcement and administration. It is, for these reasons, a provision overdue for reconsideration.