In 1995, the federal
government fulfilled a pre-election commitment in a policy statement recognizing the
inherent right of self-government as an existing right within section 35 of the Constitution
Act, 1982 and setting out an approach for negotiating self-government agreements.
Despite federal acknowledgement of an inherent right of self-government, Aboriginal groups
and governments continue to hold different views on the scope and nature of
self-government powers.
The Progress of
Self-Government Negotiations
Many years of negotiations have, to date,
produced relatively few self-government agreements. They include those for the Cree,
Naskapi and Inuit of Northern Québec under the 1975 James Bay and Northern Québec
Agreement and the 1978 Northeastern Québec Agreement (1978); the Sechelt
Indian Band of British Columbia under the 1986 Sechelt Indian Band Self-Government Act;
and seven Yukon First Nations, pursuant to a 1993 Umbrella Final Agreement. None of these
pre-1995 self-government arrangements establishing differing governance structures and
authority is explicitly "covered" by section 35 of the Constitution Act, 1982.
Other land claim agreements within the
meaning of section 35 that were concluded prior to 1995 did not include
constitutionally-protected self-government provisions. These include the 1993 Nunavut Land
Claims Agreement, the 1992 Gwich’in Comprehensive Land Claim Agreement and the 1994
Sahtu Dene and Metis Comprehensive Land Claim Agreement. Self-government agreements have
not yet been concluded with the two last groups. Under the Nunavut Land Claims Agreement
and federal legislation establishing the new territory as of 1 April 1999, Nunavut has a
public rather than an Inuit-exclusive government structure, with powers analogous to those
of the NWT government. The Nunavut Land Claims Agreement provides that the Nunavut
governance model is not intended to benefit from section 35 protection.
The 1995 inherent right policy providing
that self-government rights may be protected under section 35 in new treaties, as part of
comprehensive land agreements or as additions to existing treaties is reflected in at
least some recent Agreements-in-Principle or Final Agreements. Relevant developments
include the following:
In June 1998, the United
Anishnaabeg Councils and the Minister of Indian Affairs signed an Agreement-in-Principle
on Anishnaabe Government, the first of its kind to be signed in Ontario under the current
policy. Under the AIP, the eventual Final Agreement will not have treaty status.
The Nisga’a
Final Agreement, initialled in August 1998 and since ratified by the Nisga’a
and the Legislative Assembly of B.C., represents the first modern land claim agreement to
explicitly extend section 35 protection to both land and self-government rights. Federal
ratification legislation is expected to be tabled in Parliament early in 2nd
session of the 36th Parliament.
In October 1998, the Deline
Land/Financial Corporation Ltd. and the Deline Dene Band, the Northwest Territories
government and the federal government signed an agreement on process and schedule
for self-government negotiations.
In November 1998,
representatives of the federal government and the Anishinabek Nation, a separate political
coalition of numerous Ontario First Nations, signed a framework agreement to negotiate
Aboriginal governance. This agreement represents the result of the first stage of
negotiations, and as such does not definitively address section 35 issues.
In April 1999, the
governments of Canada and British Columbia and the Sechelt Indian Band signed an
Agreement-in-Principle, the first under the British Columbia Treaty Commission process.
The AIP maintains the delegated form of self-government practised by the Sechelt since
1986.
The Labrador Inuit Land
Claims Agreement-in-Principle was initialled by the parties in May 1999 and approved by
Labrador Inuit in July 1999. The AIP, which includes a self-government component, provides
for the constitutional status of the eventual Final Agreement.
In August 1999, the parties
initialled the Dogrib Agreement-in-Principle, the first joint land claim and
self-government mandate north of 60o. This AIP, too, provides that the
Agreement will be a land claims agreement under section 35.
The extension of section 35 protection to
self-government and the nature of certain self-government measures in modern treaties are
proving controversial, as evidenced by debate surrounding the Nisga’a Final
Agreement.
The October 1998 Performance Report of the
Department of Indian Affairs and Northern Development reported that, as of March 1998,
over 80 self-government negotiations (comprehensive or sectoral) were in various stages of
development. These include a pilot project begun in 1994 to dismantle the
Department’s Manitoba region and restore jurisdiction to the province’s First
Nations. Progress with this initiative is reportedly slower than anticipated owing to the
complexity of issues under negotiation.
A further prominent matter concerns
self-government for Aboriginal people living off reserves and in urban areas. Various
approaches, have been proposed, including forms of public government or links to
land-based Aboriginal governments. The issue is complicated by questions of
federal/provincial responsibility for Aboriginal people.
Report
of the Royal Commission on Aboriginal Peoples and Government Response
In its November 1996 report, the RCAP
set out an approach to self-government built on the recognition of Aboriginal governments
as one of three orders of government in Canada. The Report recommended, inter alia:
a new Royal Proclamation to
set out the principles for a new relationship and outline new laws and institutions that
would be established;
passage of an Aboriginal
Nations Recognition and Government Act;
elimination of the
Department of Indian Affairs and the position of Minister of Indian Affairs, and
establishment of a new Cabinet position, the Minister for Aboriginal Relations, and a new
Department of Aboriginal Relations to negotiate and manage agreements with Aboriginal
nations. A new Indian and Inuit services department would deliver services at the federal
level;
passage of an Aboriginal
Parliament Act to establish a representative body of Aboriginal peoples that would evolve
into a House of First Peoples and become part of Parliament.
In January 1998, the federal
government’s response in Gathering Strength – Canada’s Aboriginal Action
Plan centred on four objectives, including strengthening Aboriginal governance. The
government stated it
SELECTED REFERENCE
Wherrett, Jill. Aboriginal
Self-Government. CIR 96-2E. Parliamentary Research Branch, Library of Parliament,
Ottawa.