Different theories of
First Nations governance
Naiomi Metallic
CESD 3216 – CESD and the Law
January 25-26, 2010
Part 3
What is self-government?
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What do we mean when we use the term “selfgovernment”?
What topics do First Nations currently have control to
make decisions over?
What sort of topics do you think First Nations should
have control to make their own decisions over?
Different theories of governance within
First Nation
1.
2.
3.
4.
5.
Delegation of s. 91(24) power through Indian Act
R. v. Pamajewon – self-government right as historical
right under s. 35
Self-government attached to other s. 35 rights
The inherent right to self-government
Negotiated self-government
1. Delegation of s. 91(24) through Indian
Act
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The governance powers of a Band Council are set out in sections 81-86 of
the Indian Act.
Things to notice:
– Lists municipal style type of powers (some anachronistic)
– What’s missing: natural resource management; environmental
protection; Aboriginal language, culture and spirituality; family and
child welfare; policing; social services; education; employment;
justice…
– Except for by-laws relating to intoxicants (s. 85.1) (which have to be
approved by a majority of electors of the band), all by-laws:
1.
2.
Cannot be inconsistent with the Indian Act or regulations made under the
Act; and
Are subject to the approval of the Minister of Indian Affairs (see s. 82,
83(1) and (4)).
1. Delegation of s. 91(24) through Indian
Act (cont’d)
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Do Band Councils any powers beyond those set out in
the Indian Act?
– Courts have gone both ways on this question.
– Some taking a narrow approach
Band council are created under the Indian Act and derive their
authority to operate qua band councils exclusively from the
Act. … They have no other source of power. (Paul Band
(Indian Reserve No. 133) v. R. (1983)).
– More recent cases take a broader approach, finding, in
the least, that Band Councils possess all the powers
necessary to carry out their responsibilities under the
Indian Act, even when not specifically provided for.
2. R. v. Pamajewon (1996)– self-government
right as historical right under s. 35
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Band Council running high stakes bingo on the reserve,
contrary to Criminal Code. Had passed by-laws having
to do with lotteries (not under Indian Act).
Asserted “a broad right to manage the use of their
reserve lands” as part of self-government.
Supreme Court of Canada decided against them,
without deciding whether section 35 included a right to
self-government.
Found that the same test for determining whether
hunting and fishing rights existed applied to claims for
self-government.
2. R. v. Pamajewon (1996)– self-government
right as historical right under s. 35 (cont’d)
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Aboriginal rights test involves proving that activity,
practice, custom, etc., is a modern evolution of an
activity, etc., that was integral and distinctive to First
Nation’s pre-contact culture.
Don’t consider broad jurisdiction, but have to specify
practice or activity
In the case, the self-government right was characterized
the right to regulate gambling activities on reserve
lands.
Court finds that no proof that First Nation in question
regulated gambling / games pre-contact.
2. R. v. Pamajewon (1996)– self-government
right as historical right under s. 35 (cont’d)
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Problems with this approach?
– Requires proving each and every practice on its own,
instead of finding broader jurisdiction
– Freezes self-government in the past; limits governance to
those things First Nations dealt with pre-contact.
3. Self-government attached to other s. 35
rights
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In Delgamuukw v. British Columbia (2007), the Supreme
Court of Canada defined Aboriginal Title in a way that
appears to make self-government a necessary element
of it:
A further dimension of aboriginal title is the fact that it is
held communally. Aboriginal title cannot be held by
individual aboriginal persons; it is a collective right to land
held by all members of an aboriginal nation. Decisions with
respect to that land are also made by that community.
3. Self-government attached to other s. 35
rights (cont’d)
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The significance of this passage was recognized by
Justice Williamson in Campbell v. British Columbia (2004):
… passages from Delgamuukw suggesting the right for
the community to decide to what uses the land
encompassed by their Aboriginal title can be put are
determinative of the question. The right to Aboriginal
title “in its full form”, including the right for the
community to make decisions as to the use of the land
and therefore the right to have a political structure for
making those decisions, is, I conclude, constitutionally
guaranteed by Section 35.
3. Self-government attached to other s. 35
rights (cont’d)
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The same reasoning would seem to extend the scope of the right
of self-government to Aboriginal and Treaty rights generally.
The Supreme Court of Canada has suggested as much in R. v.
Sappier & Polches; R. v. Gray (2006):
The right to harvest wood for domestic uses is a communal one.
Section 35 recognizes and affirms existing aboriginal and treaty rights
in order to assist in ensuring the continued existence of these
particular aboriginal societies. The exercise of the aboriginal right to
harvest wood for domestic uses must be tied to this purpose. The
right to harvest … is not one to be exercised by any member of the
aboriginal community independently of the aboriginal society it is
meant to preserve. It is a right that assists the society in maintaining
its distinctive character.
3. Self-government attached to other s. 35
rights (cont’d)
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What would having self-government rights over s. 35 rights look
like?
– Fishing rights
– Hunting rights
– Harvesting rights
Mi’kmaq concept of Netukulimk
– includes the use of natural bounty provided by the Creator, for
the self-support and well-being of the individual and the
community at large, to achieve adequate standards of
community nutrition and economic well-being, without
jeopardizing the integrity, diversity or productive of our native
environment.
4. The inherent right to self-government
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Can be defined as the right of the Aboriginal peoples to
govern their own territories and peoples within Canada.
It is inherent in the sense that it is derived not from the
Canadian Constitution or Canadian law, but from the
existence of Aboriginal nations as independent cultural,
social and political entities with their own laws and
systems of government prior to European colonization
of North America.
4. The inherent right to self-government
(cont’d)
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The way the British Crown dealt with First Nations in the
early period of contact (through Treaties and Royal
Proclamation 1763) recognized inherent right to selfgovernment.
In this way, inherent right to self-government became a
part of the common law.
US cases from 1860s by Justice Marshall (), lead to law
that Indian Tribes maintained residual sovereignty
– Has led to different approaches between Canada and US
with respect to First Nations. US has greater recognition
of Tribal laws and Tribal Courts.
4. The inherent right to self-government
(cont’d)
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Canada - Conolly v. Woolrich follows US cases to find
Aboriginal laws, customs and traditions remained in tact
– saw in last presentation
From Confederation to 1990’s – ignored
To some extent recognized politically – in 1995 the
Canadian government affirmed its acceptance of the
inherent right in a 1995 policy guide entitled Aboriginal
Self-Government.
4. The inherent right to self-government
(cont’d)
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A majority of the Supreme Court of Canada has yet to
recognize this form of self-government (and this would
require them to move away from R. v. Pamajewon).
However, this type governance supported by the UN
Declaration of the Rights of Indigenous People.
Some First Nations are “just doing-it” – but the legal
impacts or risks associated with this are not clear.
The advice of those promoting this approach is “start
small”.
5. Negotiated self-government
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Topics / jurisdictions an Aboriginal group can make
decisions over, and how that power interacts with
Federal and Provincial law-making power is negotiated
with Federal and Provincial government, set out in an
agreement.
This can happen in the context of land claim
agreements:
– NS-Fed-Mi’kmaq Tri-Partite negotiations
– Mi’gmawei Mawiomi QC-Fed-Mi’gmaq negotiations
Summary – Where are we at today?
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To a large extent, still in s. 91(24), Indian Act, delegated-jurisdiction
model.
But even in that model, Chief and Council do more than just what is
in Indian Act, and some legal recognition of this.
Section 35 cases recognize some form of self-government, though
how big that power is remains unclear.
Some First Nations starting to exercise inherent right to self-govern
incrementally ~ whether this will be recognized by Canadian law is
unclear
Some First Nations are negotiating their self-governments with
Federal and Provincial governments and having these set out in
agreements.
Take 5 minutes to jot down some
questions, comments, concerns you
have based on what you learned in
this presentation.
Naiomi Metallic
Burchells LLP
1801 Hollis Street, Suite 1800
Halifax, NS B3J 3N4
t. 902.423.6361
f. 902.420.9326