Aboriginal Self-Government

ABORIGINAL RIGHTS are generally seen as interests which may be asserted by aboriginal peoples in respect of certain lands or activities. They include legal recognition of customary practices such as marriage or adoption and in this sense manifest a degree of acknowledged self-government, since it is the rules of the aboriginal peoples themselves that create binding legal relationships. Canadian law has yet to recognize a broader scope of law-making powers or any aboriginal jurisdiction over the exercise of aboriginal rights, or the use or occupation of lands subject to an aboriginal title.

Keywords

Native Peoples

Aboriginal peoples see their rights to self-government recognized and affirmed in international documents such as the United Nations Universal Declaration of Human Rights (1948) and other UN covenants and by s35 of the CONSTITUTION ACT, 1982. The courts have yet to follow suit. In SPARROW (1990), for example, the SUPREME COURT OF CANADA sidestepped the issue of whether the Musqueam Nation of BC had jurisdiction to regulate the aboriginal fishing rights of its members. In PAMAJEWON (1996), the Court was prepared to consider the possibility that a right of self-government was recognized by s35, but did not actually rule that the section had that effect. In DELGAMUUKW (1997), the Court declined to deal with the issue at all.

Pamajewon was a case where two First Nations asserted their right to authorize and regulate high stakes bingo games on their respective reserves. The Court held that such gaming was not a defining or integral feature of the societies in question prior to contact with Europeans and was not protected as an aboriginal right. It appears that, for the Court to acknowledge an aboriginal jurisdiction to regulate, an aboriginal group will have to establish that the activity itself is a protected right and that it was regulated by their ancestors prior to contact. This further suggests an incremental judicial approach to aboriginal self-government rather than general recognition of the right to self-determination.

United States Law

The constitutional position is very different in the United States. There, Indian tribes are recognized as "domestic, dependent, sovereign nations" with inherent rights to govern within their reserves, to make laws, to establish courts and to enjoy immunity from external lawsuits. This doctrine of domestic sovereignty has never been applied in Canada with respect to its aboriginal peoples, although many of them argue that under international law rules it should apply. If it does, there will be inevitable questions about the extent to which aboriginal peoples can regulate the activities of non-aboriginals, an issue that has frequently arisen in the US.

RCAP Report

The ROYAL COMMISSION ON ABORIGINAL PEOPLES reported to the federal government in 1996 and proposed solutions for a new and better relationship between aboriginal peoples and the Canadian government including recognition of the right of self-government. The Commission regarded the inherent right to aboriginal self-government as an "existing" aboriginal and treaty right recognized and affirmed by s35 and felt that political negotiation would be a viable alternative to the implementation of this right. Such compacts could culminate in constitutional amendments limited to individual provinces in order to provide ultimate protection of self-government rights.

Charlottetown Accord

The desirability of a constitutional amendment explicitly recognizing an inherent right to self-government was debated in the constitutional conferences of the 1980s and was revived during the negotiation of the CHARLOTTETOWN ACCORD in the early 1990s. The Accord proposed a constitutional amendment to explicitly recognize the aboriginal peoples' "inherent right of self-government within Canada." A national referendum in 1992, however, rejected this and the other Charlottetown initiatives.

Land Claims

Several comprehensive (aboriginal title) claims have been negotiated to settlement with discrete provisions for aboriginal self-government and levels of co-management with other governments. Examples of this are the Yukon and Gwi'chin land claim settlements. The most dramatic example is the Nunavut claim settlement, which resulted in the creation of the new territory of NUNAVUT in April of 1999. Apart from its legal provisions, this created a factual situation of aboriginal self-government since the overwhelming majority of the 25 000 residents of Nunavut are INUIT. The NISGA'A Treaty (1998) also makes provision for self-government within settlement lands, but has been criticized on that basis and challenged in court (see LAND CLAIMS).

Other Constitutional Considerations

The difficulty of achieving self-government through the judicial process was pointed out by the BC Court of Appeal in its Delgamuukw decision. The majority of the judges stated that the CONSTITUTION ACT, 1867 made a full distribution of legislative powers between the federal and provincial governments, leaving no room for recognition of the aboriginal "third order of government" to legislate. Similar arguments are being raised in challenges to the Nisga'a Treaty and other negotiated claim settlements where opponents say that constitutional amendments are required to give effect to the self-government arrangements agreed upon by the aboriginal and government parties. Should the courts agree with those arguments, it should be noted that there are requirements in several provinces for constitutional amendments to be submitted to the voters by way of referenda. This creates the risk that negotiated self-government agreements could be voted down by non-aboriginal majorities.

Summary

The issue of aboriginal self-government remains one that it is hotly debated in Canada, and there is no early resolution in sight. The judicial approach seems to be slow and incremental, offering little hope of any resolution in that quarter. Political negotiations have established some powers of self-government for FIRST NATIONS and Inuit, but have yet to come to grips with the claims of MÉTIS and those of other aboriginal peoples who do not reside in aboriginal communities. All political negotiations are coming under increasing scrutiny by those who either oppose any degree of self-government for aboriginal peoples or who argue that constitutional amendments are required to implement such rights. At the same time, Canada is coming under increasing scrutiny by the United Nations for its failure to make more progress in recognizing the rights of aboriginal peoples to greater self-determination and control over their lands and resources. This is clearly a debate that will carry over into the next millennium.

Author WILLIAM B. HENDERSON

Links to Other Sites

The Making of Treaty 8 in Canada's Northwest
This site, which features poignant oral histories and archival material, commemorates the signing of Treaty 8 in the 19th Century and considers the complex issues relating to past, present, and future First Nations treaty negotiations in Canada. From the Virtual Museum of Canada.

Aboriginal Canada Portal
The Aboriginal Canada Portal provides First Nations, Métis, and Inuit online resources and information about related government programs and services. A Government of Canada website.

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