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First Nations Governance Act: the inherent right to self government. What's in a name?

Every one seems to agree that the Indian Act is drastically out of date. The first version of the Act was in 1877. Hardly anything about the way we expect society to operate is the same since then. Political parties have changed, who gets to vote, what they get to vote about, what gets taxed, what sort of financial responsibility we expect from government. Everything.

The idea to bring the Indian Act into the 21st century is an idea whose time has come. So when the federal government announced in 2002 that they proposed the first round of such changes in the First Nations Governance Act, you'd think that everyone would be in favour. After all, the changes proposed--a leadership selection code, financial management and accountability code, and an administration code--would look very familiar to modern municipal or provincial governments.

However, First Nations leaders have been unanimous in condemning the Act. "This will leave a legacy of shame, a legacy of despair and a legacy of colonialism when we are all looking for a legacy of hope for our future generations," says Matthew Coon Come, former Grand Chief of the Assembly of First Nations. Strong stuff! But he is not alone. Amnesty International, the United, Anglican and Catholic Churches of Canada have all recommended against it. Just now, speculation is that the opposition to the Act has pushed it far back in the federal government agenda and that it may die on the order paper of the new Prime Minister's agenda. The opposition is instructive and shows very clearly one of the main disconnects between the First Nations and the government of the rest of Canada. And it mainly turns around "the inherent right to self-government".

This phrase is not found in any treaties nor have the courts defined it, but it has slipped into very general usage. The Royal Commission on Aboriginal People used the phrase to describe a new, third order of government which shares sovereignty with federal and provincial governments. The federal government has adopted the same phrase and has made it official policy:

"The Government of Canada recognizes the inherent right of self-government as an existing Aboriginal right under section 35 of the Constitution Act, 1982. It recognizes, as well, that the inherent right may find expression in treaties, and in the context of the Crown's relationship with treaty First Nations. Recognition of the inherent right is based on the view that the Aboriginal peoples of Canada have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and their resources".

So, not only do First Nations have an inherent right to self-government, but that right is entrenched in The Constitution (in other words, can't be altered by federal legislation without extensive and almost impossible levels of consultation and agreement).

But although both the federal government and the First Nations are using the same phrase, are they really talking about the same thing? Well, the devil is in the details. The plain wording of the federal policy seems to suggest that the inherent right deals mainly with matters that are internal to communities and then allows some overall cultural stewardship. So is aboriginal self government to be a rural municipality with cultural overtones? Or is aboriginal self government to be a genuine third order of government with sovereignty over things like natural resources, taxation, and foreign affairs? Naturally, native leaders mainly think that it is sovereign government and the federal government tends to think that it is local.

And who are the Aboriginal Peoples that possess this right? The federal government could have used a phrase that more easily identified a group like "existing Bands under the Indian Act" or "signatories to Treaties" or "citizens of aboriginal descent". But they didn't. So who are they? Are they individuals, or collectives? And if they are collectives, are they the same as the Bands organized under the Indian Act (who sometimes call themselves First Nations) who now, through their elected chiefs and councils provide most of local band governance? Some of these bands are less than 200 members, and do they have a constitutionally protected right to a genuine third order of government equal to the federal or provincial government?

If the inherent right is a true third order of government, then it's not up to the federal government to tell the first nations what their government ought to look like. So even if some of the provisions in the Act concerning the set up of Band governments don't seem so onerous (things like secret ballot, approval of election codes by members, and appeal process after contested elections), what good is it to have a constitutionally protected right if the feds get to define it so narrowly that all the First Nations get to do is pick the election date and show up for the vote? After all, some first Nations were matriarchal; some had (and have) hereditary chiefs; some didn't let women vote or become members after they married out of the group. And if that is their way, then who are the feds to say differently?

On the one hand, you will have those with a principled view of aboriginal law and sovereignty who may say, "What good is the right to be unique and preserve our heritage if our government is forced to be made in the image of non-native government?"

On the other hand, you may have those aboriginal citizens who want women or people who can't get houses on the reserve to vote in elections, or to have their governments file audited statements.

If the inherent right to self-government is a constitutionally protected right, then it can't be altered without consultation and agreement from the aboriginal peoples affected. The consultation would have to be quite specific, and probably different with different First Nations with different customary governance procedures. If the inherent right to self government means something special and specific to each First Nation, then a one size fits all solution probably won't work. Just how long this will take is any one's guess and we still don't even know exactly what "consultation" is. First Nation leaders will think that consultation means meaningful dialogue with all affected First Nations and maybe even a de facto veto. Government, on the other hand will probably mean some traveling road show with handpicked participants whose suggestions may or may not be actually put into effect.

This is a conundrum that doesn't have any obvious solution. But whatever the solution, the federal government has adopted a very specific policy that the right to self government is not only an inherent right of aboriginal peoples, but a constitutionally protected one at that. Even if we don't all agree about the nature of that right, the policy is too far out of the bag to be put back in. So no matter what happens, lengthy and specific consultation is legally necessary. And without specific approval by the affected aboriginal peoples, (and how you put that together, I really don't know) this period of consultation and negotiation will continue for the foreseeable future. And no matter how well meaning or ostensibly sensible federal legislation may be, it will be seen to be paternalistic and colonial if forced on Aboriginal Peoples without their input.

Fred R. Fenwick is a lawyer with the firm of Severud Drummond LLP in Calgary, Alberta.
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Title Annotation:Aboriginal law
Author:Fenwick, Fred R.
Geographic Code:1CANA
Date:Dec 1, 2003
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