Parliamentary Research Branch

PRB 99-19E   ABORIGINAL SELF-GOVERNMENT   Prepared by: Mary C. Hurley, Law and Government Division Jill Wherrett, Political and Social Affairs Division 27 September 1999 TABLE OF CONTENTS THE PROGRESS OF SELF-GOVERNMENT NEGOTIATIONS REPORT OF THE ROYAL COMMISSION ON ABORIGINAL PEOPLES AND GOVERNMENT RESPONSE SELECTED REFERENCE   ABORIGINAL SELF-GOVERNMENT 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 May 1999, the Mi’kmaq Nation of Gespeg, the Quebec and federal governments signed a framework agreement for negotiating self-government. 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 was "open to further discussions on the departmental and institutional arrangements that could improve existing systems"; would "consult with Aboriginal organizations and the provinces and territories on appropriate instruments to recognize Aboriginal governments"; would focus on improving the capacity of First Nations to negotiate and implement self-government; would work with Treaty First Nations to achieve self-government within the context of the treaty relationship. SELECTED REFERENCE Wherrett, Jill. Aboriginal Self-Government. CIR 96-2E. Parliamentary Research Branch, Library of Parliament, Ottawa.