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2. First Nations: Self Government
From Canadian History Portal - HCO
| E. Aboriginal People and First Nations Today → 1. Land Claims → 2. First Nations: Self Government → 3. Resource Rights → 4. First Nations: Health and Demographics → 5. Education → 6. First Nations and the Justice System |
Introduction
Self-government for Aboriginal people remains an unresolved issue. For many it is a frustrating process. They claim that they never surrendered their right by any treaty or agreement with either the British or Canadian governments. Self-government was simply taken from them by government legislation.
Contents
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One of the obstacles facing self-government is implementation. Under Canada's constitution powers are divided between the provinces and the federal government. Provinces, for example, have constitutional control over education, health, social services and natural resources. The federal government has jurisdiction over foreign relations, the military, First Nations, and other areas. How would First Nations governments fit into this? For example, First Nations want some control over natural resources. How would their control affect provincial control? Can First Nations establish relations with foreign countries?
There are no easy answers to these questions. Even amongst Aboriginal peoples there are different opinions about what self-government means. Some want complete control over their land and people. Others want shared control with other levels of government. Some want more traditional formms of government while other communities want a blending of traditional laws and current Canadian laws.
Arguments for Self-Government
Others look to early British documents for support of Aboriginal self-government. In the Maritimes in the early 1700s Britain treated Native peoples as nations. When Britain took control of the Maritimes from France in 1713, the new British governor was told by his superiors to treaty the Mi'kmaq as a nation when dealing with them. Throughout Canada dozens of treaties have been signed with Native peoples on what was a nation-to-nation basis.
The Royal Proclamation of 1763 is more difficult to interpret. First, it refers to the "several Nations or Tribes of Indians with whom We [the British] are connected." This implies a nation to nation relationship. However, the same document refers to "Our [British] Dominions and Territories" and that it is the "Royal Will and Pleasure" of the British government to allow Native peoples to use the land. For this reason the Proclamation of 1763 is by itself a confusing document for determining what British policy was. It does refer to Native peoples as "nations," but it also states that they are under the control of the British Crown.
Additional events in the nineteenth century (apart from the treaties) further support the idea of a nation-to-nation relationship between First Nations and the British. In 1812 the Sir Isaac Brock, military commander in Upper Canada, and other British officials worked hard to convince First Nations to help the fight an American invasion. If First Nations were subjects of the King of England there would have been no need to seek permission. Brock would have ordered them to fight. Brock, however, had to ask them to fight and promise them compensation.
Criticisms of Self-Government
Some people are opposed to self-government. Others support the idea, but are critical of how the matter is being handled.
Menno Boldt and J. Anthony Long of the University of Lethbridge are not opposed to self-government. They think, however, that there are problems with how it is being approached. They argue that the idea of self-government includes the concept of sovereignty. This is a western idea that can be difficult to define. For a nation sovereignty means that the country/nation has supreme power over what occurs within its borders. Boldt and Long think that this idea is not part of typical First Nations' culture. Prior to the arrival of Europeans, First Nations leaders did not have this level of power over their people. Native groups exercised some power over their territory, but it was not as absolute as the power western governments had over their territory.
Boldt and Long do not think western concepts of government and sovereignty can mix with traditional forms of Native government. For example, many First Nations' in the past ruled themselves based on consensus. They had leaders, but these leaders were important because of their skills and abilities. They could not command their people like monarchs or governments in Europe. Boldt and Long wonder how First Nations will be able to meld these two approaches together.[1]
Since Boldt wrote his books, self-government agreements (outlined below) have been put into place. In Nunavut, for example, the territorial legislature works based on consensus. Some people have pointed out, however, that there are only 19 MLAs (Members of the Legislative Assembly) in Nunavut. Over time, as the population grows and more MLA positions are created, will consensus still be possible?
Thomas Flanagan is a political science professor at the University of Calgary. In 2000 Flanagan published a contreversial book First Nations? Second Thoughts. Flanagan put forth a number of criticisms regarding self-government. He is critical of the idea that First Nations have an "inherent right to self-government," and this right is protected by Canada's constitution. Flanagan wonders what the limits of Native governments will be. For example, will Aboriginal nations be able to override federal or provincial laws?
Flanagan is also critical of individual Indian bands refering to themselves as nations. He notes there are over 600 bands in Canada. Will each be given nation status? Some bands are ver small, and have insufficent resources and land to cocnstitute any form of government beyond the municipal level. Flanagan refers to the report of the Royal Commission on Aboriginal People. In this report it was recommended that existing bands be grouped into 60 to 80 different nations for self-government purposes. He disagrees with Boldt that traditional forms of government are compatible with self-government. Any form of Native government, Flanagan states, must be similar to existing forms of rule in Canada.[2]
Loss of Autonomy
First Nations were self-governing people before the arrival of Europeans, and for a number of years afterwards. What happened to their autonomy? It is a complex question. Only after reading many other chapters in this textbook, and reading even further books and articles, can one begin to understand (in a small way) how this process happened.
For a number of years European powers in North America could not impose their rule over First Nations. First Nations were numerous. While European colonies had the desire they lacked the power necessary to control Native peoples. The French colony of New France, for example, did not try to impose its rule over First Nations. Officially, the French did not recognize Native sovereignty. This rule, however, was not followed. They needed Native peoples for the fur trade, as military allies, and to help them explore the interior. Maintaining good relations with First Nations was a crucial part of France's policy in Canada.
With the conquest of New France in 1763 things began to change. The British continued to treat First Nations with a degree of respect because of their usefulness as military allies. With the Treaty of Ghent (1814) relations between Britain and the United States (and therefore Canada) improved. First Nations were no longer required as allies. Instead, the British began to perceive First Nations differently. They were seen in two different ways: as a barrier to progress (i.e.: settlement and development), and a people who needed to be civilized. Settlers needed land, and treaties were a way to get land. First Nations, therefore, had to be removed by the treaties and put onto reserves. Once on the reserves, to 'help' First Nations, the Indian Department started a policy of civilization. Native peoples would be taught English, how to farm, but also converted to Christianity and made to abandon their traditional culture.
This shift in British Indian policy started First Nations loss of independence. Losing their land through the arrival of settlers and the creation of treaties made them dependent on the government for support. The reserve system also reduced their sovereignty. The position of Indian Agent was created to oversee the reserves. An agent might have half-a-dozen or more reserves under his control. With the creation of the Indian Act in 1876 the Indian Agent applied the rules of the act to the Indians in his agency. Traditional forms of government were replaced by the band council system of elections. Indian Agents exercised considerable power over band councils and band chiefs.
Native dependency on government was worsened by the racism they faced. Racism prevented many from getting jobs in nearby towns and cities. Employers did not want to hire First Nations people. Residential schools offered students a poor level of teaching. Teachers did not think First Nations children were capable of learning as well as other children. Poor education affected Native ability to find employment. Over time hunting, fishing and trapping stopped being a decent source of income for First Nations (unless they lived in more northern parts of the country). Dependency resulted in First Nations losing autonomy and independence.
Steps Towards Self-Government
First Nations across Canada did not abandon efforts to control their own affairs. In the early twentieth century various bands and reserves joined together to form political groups. They worked to protect treaty rights. As noted in section two of this textbook, Fred Loft a Mohawk from the Six Nations Reserve, helped to create the League of Indians of Canada in 1918. The League worked to protect treaty rights and regain land. In 1949 a number of Ojibwa bands in Ontario formed the Union of Ontario Indians. Since these organizations worked against the policies of Indian Affairs they faced considerable opposition from the federal government.
After World War II the North American Indian Brotherhood was formed. However, it dissolved in 1958. In 1961 the National Indian Advisory Council was formed to represent status and non-status Indians and Métis. However, this group split in 1968. The National Indian Brotherhood was created to represent status Indians (it became the Assembly of First Nations in 1982). The Congress of Aboriginal Peoples was formed to represent non-status Indians and Métis.
As outlined in section two of the textbook, the introduction of the White Paper on Indian policy in 1969 started more Aboriginal political activism. Despite all of the consultations the government held with Native groups the final White Paper ignored all of their recommendations. It became clear to many First Nations that they required more control over their lives and communities.
Another factor created the Native push for self-government: Quebec nationalism. In the 1960s and 1970s there nationalism grew amongst many French Quebeckers. They wanted to separate from Canada and form their own nation. It became clear to First Nations in Quebec that if French separatists could demand their own government, Native peoples could demand greater autonomy as nations. First Nations realized that the arguments put forth by French separatists to support the existence of a distinctive Quebec culture could be easily applied to First Nations: a unique language, culture, way of life, and history.
Self Government and the Supreme Court
As with many other questions regarding Aboriginal rights, First Nations self-government received its first real support from Supreme Court decisions such as the 1973 Calder decision. Once courts recognized Aboriginal rights to resources and land the legal recognition of self-government became easier. If First Nations had a right to resources, for example, it implies that before the arrival of Europeans they controlled (or governed) those resources.
For example, in the 1985 Musqueam decision the Supreme Court stated that Aboriginal rights exist independent of the Crown. This means that the Aboriginal rights extend from a First Nations past use of a resource, and past governance of that resource (i.e.: setting rules, laws and regulations about how a resource is used).
In later decisions stronger statements were made. In R. v. Sioui, for example, Justice Lamer wrote the following:
Such was the policy of Great Britain towards the Indian nations [that]...she considered them as nations capable of maintaining the relations of peace and war; of governing themselves, under her protection; and she made treaties with them, the obligation of which she acknowledged...The British Crown recognized that the Indians had certain ownership rights over their land...it also allowed them autonomy in their internal affairs, intervening as little as possible.[3]
However, at the same time that the Supreme Court makes these statements they also write that final sovereignty over the land lay with the Crown (the federal or provincial governments). In the Sparrow decision it was written that "There was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, so such lands vested [exist] in the Crown."[4]
In Mitchell v. Peguis Indian Band (1990), Justice La Forest wrote that:
The historical record leaves no doubt that Native peoples acknowledged the ultimate sovereignty of the British Crown, and agreed to cede their traditional homelands on the understanding that the Crown would hereafter protect them in the possession and use of such lands as were reserved for their use."[5]
These are conflicting statements. Self-government is recognized to some extent by the Supreme Court but at the same time it says that sovereignty over land resides with the federal or provincial governments. The recent Delgamuukw decision by the Supreme Court did not settle the matter. Since the Supreme Court ordered a new trial be held it did not deal with Gitskan and Wet'suwet'en arguments regarding their right to self-government.
Self-Government and the Canadian Government, 1980-2005
A more detailed overview of this history is offered in section two. A short synopsis is necessary here. In 1980 the Canadian government re-started talks with the provincial premiers about changes to the constitution. As noted in section two, Aboriginal peoples were excluded from these talks. First Nations realized that a changed constitution would alter their relationship with the federal government. Aboriginal groups also understood that being involved in the talks would help them be recognized as a separate level of government. When the National Indian Brotherhood changed its name to the Assembly of First Nations in 1982 this was a reflection of their belief: that Indians constituted separate nations within Canada.
After the 1982 Constitutional Act there were four constitutional conferences held between the federal government and the provincial premiers between 1983 and 1987. Aboriginal leaders attended all of these talks, but could not reach an agreement on self-government. Premiers from the prairies did not want self-government because of the difficulties they saw trying to define this new level of government in relation to the province.
The inherent right to self-government, however, was part of the Charlottetown Constitutional Accord. The accord stated that:
The inherent right of the Aboriginal peoples of Canada of self-government within Canda would be recognized. Aboriginal governments would be one of the three constitutionally recognized orders of government in Canada. The entrenchment of the inherent right of self-government would not create new rights to land. The progress to self-government would be through an agreed orderly process.[6]
However, this agreement also failed. Canadians, in a national referendum, voted against the agreement.
Following the Charlottetown Accord, and the incident at Oka, Quebec, the federal government established the Royal Commission on Aboriginal Peoples (RCAP). In addition to a number of recommendations the RCAP proposed the following regarding self-government:
- Creating a new Royal Proclamation to update and modernize the basis behind Aboriginal-government relations
- Eliminate the Department of Indian Affairs and create a new Department of Aboriginal Relations
- Passage of an Aboriginal Parliament Act. This legislation would create a House of First Peoples as part of Canada's Parliament.
Two years later the federal government responded to the RCAP Report. In Gathering Strength - Canada's Aboriginal Action Plan the federal government stated:
- It recognizes the inherent right of Aboriginal peoples to self-government, and this right is protected under s.35 of the constitution.
- It was willing to discuss the creation of a Department of Aboriginal Relations and other changes to the government.
- It would work with Aboriginal groups and the provinces to create and recognize Aboriginal governments and create a framework for working with them.
- It would help Aboriginal peoples create governance centres to research policies for the implementation of self-government.
- It would work with Treaty First Nations to create self-government within the treaties.
Parts of this statement were already official government policy. Before the RCAP report was created the federal government announced its new policy on Aboriginal issues. In addition to what is above, this 1995 statement stated that:
- The Canadian Charter of Rights and Freedoms will apply to any Aboriginal government.
- Federal and provincial laws of "overriding importance" will apply to Aboriginal governments.
- Federal, provincial and Aboriginal laws must work together.[7]
Based on this new policy, the Department of Indian Affairs reported over 80 different negotiations going on between it and First Nations and Inuit communities. However, these are still ongoing due to the complex nature of the negotiations.
Existing Self-Government Agreements
Some First Nations have signed agreements with the federal government that give them greater control over what happens in their communities and territory. These are:
- The James Bay Northern Quebec Agreement
- The Sechelt First Nation
- Yukon First Nations
- Nunavut
- The Nisga'a Agreement
Some of these agreements are outlined in the chapters on land claims and resource claims. However, they also need to be analyzed as self-government agreements as well. It is because these agreements deal with so many issues that they are called comprehensive land claims agreements. Further information about the resource and land portions of these agreements are covered in other chapters.
It is important to keep in mind that not all Aboriginal groups agree with the terms of these agreements. Some have criticized these agreements because they do not grant enough power to the First Nations involved. For example, some of these powers are no different than those given to municipal governments. Not all First Nations agree on what self-government should look like.
James Bay Northern Quebec Agreement (JBNQA)
The JBNQA was negotiated in 1975 and 1978 to settle the claims of the northern Quebec Cree and Inuit. In 1984 the Cree-Naskapi (of Quebec) Act was passed. This act replaced the Indian Act for these nations. Indian Affairs, therefore, has limited involvement in the daily running of the James Bay communities. Instead, the Cree and Naskapi communities were incorporated, and given municipal government powers under Quebec's Cities and Towns Act. When a community passes a law it now has the same power as a law passed by any other community (i.e.: city or town).
Inuit communities are covered by An Act concerning Northern Villages and the Kativik Regional Government. Also known as the Kativik Act, this legislation created the Kativik Regional Government. Inuit communities were incorporated just as the Cree communities were. Negotiations are still on-going to further define the self-government powers of the Cree and Inuit in northern Quebec.
Sechelt First Nation
In 1986 the Sechelt Indian Band Self-Government Act was passed by the Canadian parliament. There are approximately 33 reserves within the band, located about 50 kilometres north of Vancouver. Under this act the Sechelt band can now exercise the following governmental powers:
- Enter into contracts and agreements without outside people/companies
- Sell and dispose of property
- Zoning (setting aside) reserve land for commercial and industrial development
- Spend, invent and borrow money
- Create its own constitution
- Pass laws dealing with: access to reserve lands, land management, education, social welfare, health and taxation on reserve land.
In 1999 another agreement was signed between the B.C and federal governments and the Sechelt First Nation [Shishalh Nation] as part of British Columbia's treaty process. The Sechelt will receive $42 million in cash, 933 hectares of Crown land and 288 hectares of non-Crown land. In addition they will be given so many commercial fishing licenses and the right to manage forest resources. In return, band members will begin paying provincial and federal sales taxes (PST and GST) 8 years from the signing of the agreement, and income taxes 12 years after the signing.
Yukon First Nations
In 1993 the Council for Yukon First Nations signed an agreement to negotiate final land claim settlements. The Council represents 14 First Nations in the Yukon Territory. As of 1998 seven First Nations have signed final land claim settlements.
Self-government agreements are an important part of these settlements. First Nations can now control:
- land use
- hunting, trapping and fishing
- regulation of businesses on their territory
- taxation on their territory
- Pass laws dealing with language, culture, health care, social services and education for their citizens throughout the Yukon
In addition most of the Indian Act no longer applies in the settlement areas.
Nunavut is the largest settlement in Canadian history. Not only did it settle the land claims of the Inuit in the northern reaches of Canada it created an entirely new territorial government. In 1976 the Inuit Tapirisat of Canada submitted a proposal to the federal government to create Nunavut ("out land" in Inuktitut - the Inuit language). In 1992 the agreement to create Nunavut was formally signed. Under this agreement the government of Nunavut has all the powers that the government of the North West Territories has.
Nisga'a Agreement
The Nisga’a First Nation numbers about 6,000 people living in the Nass River Valley in northwestern BC. The nation has four clans: Ganada (Raven), Gisk'aast (Killer Whale), Lax̱gibuu (Wolf), and Lax̱sgiik (Eagle). Canada’s first Aboriginal MLA and federal Cabinet minister, Frank Calder pushed for a land claim settlement.
In 1998 the Nisga'a Tribal Council signed the Nisga'a Agreement, also known as the Nisga’a Treaty with the governments of Canada and British Columbia. It received Royal Assent in 2000, despite opposition from the former Reform Party that delayed passage through the House of Commons in 1999. The treaty was ratified on April 13, 2000. It gave the Nisga’a people $200 million over a 15-year period), plus communal self-government, a 300,000 cubic decameter water reserve and control of natural resources in nearly 2,000 square kilometres of land in the Nass River Valley.
Specifics of the land and financial arrangements are covered in the land claims chapter. As regards governance, the agreement created the Nisga'a Lisims Government and four village governments (similar to municipal governments). The Nisga'a now possess law-making powers over:
- Culture
- Public Works
- Regulation of traffic and transportation
- Land use
- Marriage (i.e.: issuing Nisga'a marriage licenses)
- Education
- Health
- Child Welfare
In addition non-Nisga'a people living on Nisga'a land can take part in the elected Nisga'a councils in the territory.
Conclusion
Aboriginal self-government is an ongoing process. Some agreements have been signed, and the position of the federal government regarding self-government has changed. However, negotiations require a long time. Even the agreements that have been signed are not accepted by all Aboriginal people. Part of the difficulty arises because of the varying opinions about what self-government means.
Review Questions
1. Before reading this chapter, write down what you think Aboriginal self-government means (e.g.: what powers would Aboriginal governments have). As you read through the chapter see if your assumptions about self-government are supported by the chapter or challenged by it.
2. Look up the following definitions in the dictionary as part of a vocabulary list: sovereignty, nation, treaty, negotiation, government. Do you think these words help explain Aboriginal self-government?
3. Look at the proposals put forth by the RCAP. It recommends replacing the Department of Indian Affairs with a Department of Aboriginal Relations. What does the change of language imply about the proposed department and how it might operate?
4. Analyze the government’s response to the RCAP report. Imagine you are leader of an Aboriginal organization. Would you be happy about these statements, or would you doubt whether they would happen?
5. Look at the criticisms offered by Boldt, Long and Flanagan. Do you think the RCAP proposals and the federal government’s approach to self-government address these concerns?
6. Menno Boldt and Anthony Long are critical of how self-government is being implemented. Do you agree with their criticisms? Why?
7. Research the Union of Ontario Indians (www.anishinabek.ca ). What services do they offer their members? What efforts is the Union making to implement self-government for the Anishinabek?
8. Using the links provided in the web resources section research the life of Fred Loft. What specific concerns did Loft have regarding First Nations rights and self-government?
9. Break the class into groups. Assign each group one of the existing self-government agreements noted in this chapter. Using the web links provided and additional research have each group research the agreement, and what the First Nation is providing to their members. Have each group present to class what they have found, and their assessment of agreement they studied.
10. If the Supreme Court recognizes that First Nations were self-governing before the arrival of Europeans, but states that ultimate sovereignty in Canada rests with the Crown how do you reconcile First Nations self-government.
11. Compare these two statements by former Prime Minister Pierre Trudeau.
“As for aboriginal rights, this means saying "We were here before you: You came and you took the land from us and perhaps you cheated us by giving us some worthless things in return for vast expanses of land and we want to reopen the question. We want you to preserve our aboriginal rights and to restore them to us." Our answer is no. We can't recognize aboriginal rights because no society can be built on historical 'might have beens.'” - Prime Minister Pierre Trudeau, 1969
“Clearly our aboriginal peoples each occupied a special place in history. To my way of thinking, this entitles them to special recognition in the Constitution and to their own place in Canadian society, distinct from each other and distinct from other groups.” - Prime Minister Pierre Trudeau, 1983
What did Trudeau mean by “historical might have beens?” Based on what you have read in this chapter how do you explain his change of opinion? Which statement do you agree with? Explain your choice.
12. Read the web link to the biography of Fred Loft. Outline and explain the problems he faced trying to create a national First Nations organization in the 1920s. What do you think may have happened if Loft had been successful?
13. What is the position of the Assembly of First Nations regarding self-government. Compare this to the position of the federal government. Use the web links provided.
14. Do you think Aboriginal self-government in an inherent right for First Nations based on your reading of the chapter?
15. Who is Elijah Harper? Research who Harper is, and write a brief (one paragraph to one page) outline of who he is, how he became involved in politics, and his opposition to the Meech Lake Accord.
16. Examine the various self-government agreements described in the chapter. Do you think these are good agreements for the First Nations that signed? Can you think of any criticisms you may have of these agreements?
Internet Resources
- Encyclopedia of North American Indians – Fred Loft
- First Nations Political in Saskatchewan - History
- CBC – National Aboriginal Organizations
- Government of Canada Self-Government Policy
- Nelson Thomson Learning – Aboriginal Issues
- National Centre for First Nations Governance
- The Impact of the Penner Report
- Assembly of First Nations – Self-Government Position
- Aboriginal Self-Government in Canada – Alberta Métis Settlements and Nunavut
- Government of Nunavut Web Site
- Building Nunavut: A Story of Inuit Self-Government
- Council of Yukon First Nations
- Nisga’a Lisims Government Web Site
- The Sechelt Indian Band
- British Columbia Treaty Commission – Sechelt Indian Band Negotiations
Notes
- ↑ Menno Boldt and J. Anthony Long, “Tribal Traditions and European-Western Political Ideologies: The Dilemma of Canada’s Native Indians.” The Quest for Justice: Aboriginal Peoples and Aboriginal Rights. Menno Boldt and J. Anthony Long eds. (Toronto: University of Toronto Press, 1985): 333-346.
- ↑ Thomas Flanagan, First Nations? Second Thoughts (Montreal: McGill-Queen’s University Press, 2000)
- ↑ Cited in Thomas Isaac, Aboriginal Law: Cases, Materials and Commentary. 2nd edition (Saskatoon: Purich Publishing, 1999): 497
- ↑ Isaac, 497.
- ↑ Isaac, 497
- ↑ Government of Canada, Privy Council Office, "The Constitutional File and Unity File: The Charlottetown Accord (1992)" (unofficial text) Summary
- ↑ Jill Wherrett, Current Issue Review "Aboriginal Self-Government." (Ottawa: Library of Parliament, Parliamentary Research Branch, 1999):6-7
| E. Aboriginal People and First Nations Today → 1. Land Claims → 2. First Nations: Self Government → 3. Resource Rights → 4. First Nations: Health and Demographics → 5. Education → 6. First Nations and the Justice System |
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