Aboriginal self-government in Canada

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Aboriginal self-government refers to proposals to give governments representing the Aboriginal peoples of Canada greater powers of government. These proposals range from giving Aboriginal governments powers similar to that of local governments in Canada to demands that Aboriginal governments be recognized as sovereign, and capable of "nation-to-nation" negotiations as legal equals to the Crown (i.e. the Canadian state), as well as many other variations.

Background

Aboriginal peoples in Canada are defined in the Constitution Act, 1982 as Indians, Inuit and Metis. Prior to the acquisition of the land by European empires or the Canadian state after 1867, First Nations (Indian), Inuit, and Metis peoples had a wide variety of polities, from band societies, to tribal chiefdoms, multinational confederacies, to representative democracies (in the case of the Metis-led Legislative Assembly of Assiniboia). These were ignored or legally suppressed by the Canadian federal government.[1] For the Metis and Inuit, nothing was put specifically in as a replacement beyond the fact that these people could vote for the standard municipal, provincial, and federal elections as citizens of Canada. For the First Nations, the government created the band system under the Indian Act, which allowed First Nations people to vote in band elections but they could not vote in federal elections before 1960 unless they renounced their status as Registered Indians. Band governments had very little authority, however; they exercised only whatever power was delegated to them by the Minister of Indian Affairs, and only had authority on the Indian reserves which represented a tiny proportion of their traditional territories.[2]

Rationale

Aboriginal people may claim an “inherent right to self-government” either because it is seen as a natural right emanating from prior occupation of the land or because of a gift or covenant with the Creator. In this case Aboriginals do not seek to be “granted” self-government, but simply to have their pre-existing right recognized in law. As well an argument for self-government can be made on the basis of the right of self-determination as understood in international law generally or as specifically enumerated in the Declaration of the Rights of Indigenous Peoples.[3]

Evolution of government proposals

In 1969 the White Paper on Indian Policy proposed abolishing band governments and transferring the delivery of social programs on reserves to the provincial governments (as the provinces already run these services for non-Aboriginal people). Opposition to this proposal helped to galvanize the creation of national political organizations among Aboriginal peoples, bringing the concept of Aboriginal self-government to the national political consciousness for the first time.[4]

The constitutional amendments of 1982 included Section 35 which recognized Aboriginal rights and treaty rights but did not define these.[5] In 1983, the Special Committee of the House of Commons on Indian Self-Government, released its report (also called the Penner Report after committee chair Keith Penner). It recommended that the federal government recognize First Nations as a distinct order of government within the Canadian federation and begin to negotiate self-government agreements with Indian bands.[6]

An attempt was made by Aboriginal leaders to have the concept of Aboriginal self-government enshrined via the 1987 Meech Lake package of constitutional amendments, but they failed to convince the first ministers to include such provisions[7] This led to Aboriginal hostility to the agreement and saw Manitoban MLA Elija Harper, a Registered Cree Indian, help to defeat the accord. The follow-up Charlottetown Accord (1992) included recognition of an inherent Aboriginal right of self-government, but this package also failed[8] though not because of Aboriginal resistance: in fact self-government was unpopular with many non-Aboriginal voters and may have been a factor in its defeat in the national referendum which followed.

The Royal Commission on Aboriginal Peoples issued its final report in 1996, which recommended that Aboriginal governments become recognized as the third order of government in Canada (alongside the federal government and the provinces) and that Aboriginal peoples receive special representation in Parliament.[9]

After this time, however, the emphasis shifted away from constitutional entrenchment towards negotiations with individual communities. The Conservative government announced its Community-Based Self-Government (SBSG) policy in 1986, to "enable negotiation of new Crown - Aboriginal relationships outside of the Indian Act" on a community-by-community basis.[10]

In 1995 the Liberal government issued the Inherent Right of Self-Government Policy[11] which recognized that self-government was an inherent right, but limited it implementation to a model which resembles delegation of authority from the Crown to the communities. It requires that individual bands or groups of bands sign modern treaties with the federal (and sometimes provincial) government to be removed from the strictures of the Indian Act.

Self-government agreements

As of 2013, twenty comprehensive self-government agreements had been signed by the federal government. Of those, seventeen were part of a comprehensive land claim agreement or modern treaty. Those numbers included the Yale Final Agreement and the Sioux Valley Final Agreement which have been signed, but have not yet been brought into effect through legislation.[12]

In addition to the comprehensive agreements with Indian bands mentioned above, the Nunavut Land Claims Agreement of 1993 with the Inuit of the eastern Arctic, pursued a different model of governance. A new federal territory, Nunavut was created in 1999 where the Inuit were the majority, separate from the North West Territories where more First Nations, Metis, and non-Aboriginal people lived. Nunavut is not reserved exclusively for the Inuit, and any Canadian can move there and vote in its elections.[13] However the strong Inuit majority is reflected in the governance of the territory and Inuktitut and Inuinnaq are two of the territory's official languages (alongside English and French).

Another model is the Cree of northern Quebec. Since the passage of the Cree-Naskapi (of Quebec) Act in 1984, nine Cree communities are not subject to the Indian Act or the band system. Instead they are represented by the Grand Council of the Crees (Eeyou Istchee) or GCCEI and governed by the closely linked Cree Regional Authority. The GCCEI signed an agreement in 2012 with the province of Quebec that would abolish the municipalities in the region and merge them with the Cree Regional Authority in a new regional government called the Eeyou Istchee James Bay Territory. As of 2014 the GCCEI are in talks with the federal government on a Cree Nation Governance Agreement to refine the new structure's relationship to the federal authorities.[14]

Unilateral moves towards self-government

Some bands, rejecting the idea that they must negotiate with the federal government in order to exercise their right to self-government, have acted unilaterally. In January 2014, the Nipissing First Nation adopted what is believed to be the first constitution for a First Nation in Ontario. It is supposed to replace the Indian Act as the supreme law which regulates the governance of the First Nation, but has not been tested in court.[15]

See also

References

Notes

  1. ↑ Wherrett, Section A
  2. ↑ Wherrett, Section B
  3. ↑ Hurley
  4. ↑ Wherrett, Section B
  5. ↑ Hurley
  6. ↑ Wherrett, Section B
  7. ↑ Hurley
  8. ↑ Hurley
  9. ↑ Hurley
  10. ↑ http://www.aadnc-aandc.gc.ca/eng/1325102789963/1325102827484
  11. ↑ http://www.atns.net.au/agreement.asp?EntityID=2277
  12. ↑ http://www.aadnc-aandc.gc.ca/eng/1100100016293/1100100016294
  13. ↑ http://www.aadnc-aandc.gc.ca/eng/1100100016293/1100100016294
  14. ↑ http://www.aadnc-aandc.gc.ca/eng/1100100016293/1100100016294
  15. ↑ http://www.cbc.ca/news/canada/sudbury/nipissing-first-nation-passes-first-ontario-aboriginal-constitution-1.2505488

Works cited

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