The INDIAN ACT of 1876 removed traditional systems of governance and imposed regulations on Aboriginal people and their communities. Canadian law continues to negotiate a broader scope of law-making powers and Aboriginal jurisdiction over the exercise of Aboriginal rights, and the use or occupation of lands subject to an Aboriginal title.
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. 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.
The Pamajewon case involved two First Nations and 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. In general, for the Court to acknowledge an Aboriginal jurisdiction to regulate, an Aboriginal group would 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, the doctrine 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.
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.
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.
Several comprehensive (Aboriginal title) claims have been negotiated with discrete provisions for Aboriginal self-government and levels of co-management with other governments. All Canadian governments, including Aboriginal governments, are subject to the Constitution and the Charter of Rights and Freedoms. Regardless of who has jurisdiction over a service or resources specified in a treaty, all the parties must agree to the arrangements for its delivery for any treaty to be ratified. In 1973 a federal policy was established to settle Aboriginal land claims and divided claims into two broad categories - specific and comprehensive. Comprehensive claims deal with the unfinished terms and conditions of treaties and land claims specifically include Aboriginal land rights that were not negotiated by treaty or other legal means.
In 1993 the federal government, Yukon government, and Council for Yukon Indians (CYI) signed the Umbrella Final Agreement (UFA) and Final Agreements with four Yukon First Nations. Self-Government Agreements were also signed with Vuntut Gwi'chin First Nation, First Nation of the Nacho Nyak Dun, the Champagne and Aishihik First Nations, and the Teslin Tlingit Council in 1993. In 1997, final and self-government agreements were signed with Little Salmon/Carmacks (LSCFN) and Selkirk First Nations (SFN).
A historic example of land and self-government negotiations 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 self-government agreement since the overwhelming majority of the more than 32 000 residents of Nunavut are INUIT. The comprehensive NISGA'A Treaty also made provisions for self-government within settlement lands, but was criticized on that basis and challenged in court; the agreement was finalized in 2000 (see LAND CLAIMS).
Other Constitutional Considerations
The difficulty of achieving self-government through the judicial process was illustrated by the BC Court of Appeal in its Delgamuukw decision. In 1876, The Indian Act came into effect, dismantling traditional governance systems and imposing regulations on aboriginal peoples' lives. 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 were 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.
In 1982, a Special Committee of the House of Commons on Indian Self-government was appointed and in 1983 and they produced the Penner Report, which recommended that First Nations be recognized as a distinct order of government and that processes leading to Aboriginal self-government be established. In 1990, the federal government removed the six-claim limit on the number of negotiations that could occur at one time, thus expanding the comprehensive claims process. In 1995 the process was further expanded when the federal Inherent Right Policy came into effect which established that comprehensive claims agreements may be negotiated simultaneously with self-government arrangements and lands and resource claims.
The issue of Aboriginal self-government remains one that it is hotly debated in Canada, however. The judicial approach is methodical and incremental. 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 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 under increasing scrutiny by the United Nations for its limited progress in recognizing the rights of Aboriginal peoples to greater self-determination and control over their lands and resources.
In 2012 there were 18 self-government agreements involving 32 communities in Canada. The Aboriginal governments and the formal relationships with the provincial and federal governments were established through the self-government agreements.
Author WILLIAM B. HENDERSON
Report of the Royal Commission on Aboriginal Peoples (1996); O. Dickason, Canada's First Nations (1992); M. Boldt and J. A. Long, eds, The Quest for Justice (1985); D. Sanders, "The Rights of the Aboriginal Peoples of Canada," Canadian Bar Review 61 (1983); B. Slattery, Ancestral Lands. Alien Laws: Judicial Perspectives on Aboriginal Title (1983); K. Penner (Chair), Report of the Special Committee of Parliament on Indian Self-Government (1983); P. Cumming and N. Mickenburg, Native Rights in Canada (2nd ed, 1972).
Links to Other Sites
Canadian Aboriginal Writing and Arts Challenge
The website for the Canadian Aboriginal Writing and Arts Challenge, which features Canada's largest essay writing competition for Aboriginal youth (ages 14-29) and a companion program for those who prefer to work through painting, drawing and photography. See their guidelines, teacher resources, profiles of winners, and more. From the Historica-Dominion Institute.
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.