Aboriginal Self-Government

“Self-Government” refers to the claim that a First Nation has an inherent legal right to govern itself and its members.  It is both a political claim and a legal claim.  It is a political claim, since most First Nations claim that they have such a right or should have such a right.   It is a legal claim since there are strong legal arguments that First Nations do continue to have government powers that are independent of those granted to them under the Indian Act. 

History of Self-Government

When the British first established colonies in what later became British Columbia, they initially recognized that the First Nations were governing themselves.  Although they asserted sovereignty over the province, the individual First Nations were left to govern themselves, responsible for resolving their own disputes, dealing with their own crimes and managing their own affairs.  Governor James Douglas attempted to sign treaties with some of the First Nations, while the courts of the colonies only attempted to exercise power over First Nations peoples when a dispute or crime involved both settlers and First Nations. 

Of course this state of affairs didn’t last long, and eventually the colonial governments were shuffling First Nations peoples onto reserves and claiming to manage many aspects of their life.  However, even after the British asserted their dominance over First Nations, the Canadian Courts continued to recognize that in some areas – such as marriage and adoption – that the First Nations customs should be treated as having legal effect.  And the First Nations continued to assert their right to govern themselves. 

Today self-government has become one of the top demands of First Nations across Canada.  The goal of self-government was strongly endorsed in the report of the federal government’s Royal Commission on Aboriginal Peoples, and the goal of First Nations having the powers to govern themselves is widely accepted (although the details about the extent of those powers is still very controversial). 

There are a variety of tactics being used to assert rights of self-government:

·                      The Courts – Some First Nations have sought declarations in the courts confirming their ability to govern themselves.  To date the success has been mixed.  The case-law is discussed below.

·                      Political Process – The Assembly of First Nations says that currently proposed revisions to the Indian Act fall short of recognizing self-government.  However, it is clear that the trend in Ottawa is to delegate increasing responsibilities to First Nations, and the federal government’s official line, at least, recognizes eventually granting some form of self-government for First Nations. 

·                      Treaty Negotiations – The federal and provincial governments are in the process of trying to negotiate treaties with many of B.C.’s First Nations.  It is widely recognized that these treaties will provide for some form of self-government, although there is controversy over precisely what types of powers these First Nations governments will have.  See the Nisga’a Final Agreement Act for more information on what self-government might look like under a modern treaty.  

·                      Sovereignty – Some First Nations have simply asserted their sovereignty as a First Nation, and begun passing laws and organizing governments.  In some cases the First Nation is using this approach as a tactic to strengthen their position in court, the political process or treaty negotiations.  For other First Nations, however, the assertion of sovereignty involves rejecting the claim that the Canadian legal system has any power over their own government, meaning that they will not use the courts and will negotiate with the federal government only (nation-to-nation). 

Self-Government under the Common Law

While today most First Nations governments are organized under the Indian Act, many First Nations also assert an inherent right of self-government that is not dependent on the Indian Act. 

Recently the Courts have started to recognize that some rights to make laws – particularly laws affecting the First Nation’s own members – do continue to exist under judge-made common law.  These rights now have constitutional protection under section 35 of the Constitution Act, 1982 which affirms all existing aboriginal rights.  However, the extent of these powers in Canadian law is still very unclear. 

In some cases the courts have recognized First Nations customary law over marriage, adoptions and other laws and customs governing relationships.  However, these cases have mostly involved consensual relationships, rather than situations where the First Nations is attempting to restrict or expand the rights of its members. 

The courts have taken a slightly different line about other types of self-government – related to control of activities on reserve lands.  What the courts have said is that a claim of an aboriginal right to self-government will be treated much like other claims of aboriginal rights.  A First Nation must demonstrate that passing laws about a particular topic was an integral part of that First Nation’s culture.  Thus, if a First Nation could show that it traditionally passed laws governing the use of a particular river, and that those laws were of great importance to the culture of the First Nation, it might be possible to establish a continuing right to pass laws about that particular river (or possibly even rivers within the First Nation’s territory). 

However, if the court is not convinced that the First Nation traditionally passed laws about the river, then it seems that the First Nation will not (under Canadian law) have an inherent right to pass such laws.  If it had such powers at all, it would be from delegated powers under the Indian Act or some other federal or provincial law. 

Although it has never been done, it seems likely that a law created under a right of self-governance could be enforced in the Canadian courts (through a court order).  Moreover, if one of these First Nations laws conflicted with the laws of the Province, the Province would have to show why its interference was justified. 

However, as noted, this area of law is still developing.  Any First Nation wishing to pass laws under a common law of self-government should consult a lawyer about the limits of these powers. 

 

Related Guide Pages:

·          Aboriginal Rights and Title

·          Aboriginal Title

·          Aboriginal Resource Rights

·          First Nations Government

·          The Role of Treaties

·          Infringements of Aboriginal Rights

·          Consultation with First Nations

For more information about Self-Government:

·          Governance page of the BC Assembly of First Nations website.

·          Highlights from the Report of the Royal Commission on Aboriginal Peoples and the “Federal Policy Guide – Aboriginal Self-Government” from the Indian and Northern Affairs Canada website.

·          R. v. Pamajewon – A decision of the Supreme Court of Canada dealing with the common law rights of a First Nation to authorize and regulate gambling on its reservation. 

·          Aboriginal Self-Government – An overview from the Library of Parliament.

·          Aboriginal Law and Legislation.