National Centre for First Nations Governance 1 Our Inherent Right to Self-Government.

National Centre for First Nations Governance 11

Our Inherent Right to Our Inherent Right to Self-GovernmentSelf-Government


“For thousand of years there was no such thing as an Indian Act... We observed laws that encouraged us to be wise, humble, respectful, truthful, brave, loving, and honest in our dealings with others.”

John Borrows


Inherent Right to Self-Inherent Right to Self-GovernmentGovernment

Aboriginal peoples have argued that they Aboriginal peoples have argued that they possess and “inherent right of self-possess and “inherent right of self-government” and that this right best government” and that this right best expresses their self-governing objectives expresses their self-governing objectives and aspirations. and aspirations.


Legal LandscapeLegal Landscape

Pamajewon, Van der Peet,

Delgamuukw, Campbell,

Connolly, Haida, Mitchell


Legal LandscapeLegal Landscape

3 Approaches to

Self-Government


Approach1:Approach1:Free Standing Aboriginal Free Standing Aboriginal Right under S. 35Right under S. 35

“…self-government [is] no different from other claims to the enjoyment of aboriginal rights and

must…be measured against the same standard.…”

-Pamajewon, para 24

“. . . an activity must be an element of a practice, custom or tradition integral to the distinctive culture

of the aboriginal group”

-Van der Peet, para 46 LegalLegalLandscapeLandscape3 Approaches3 Approaches

LegalLegalLandscapeLandscape3 Approaches3 Approaches


Pros & Cons of Approach 1Pros & Cons of Approach 1

Assumed s.35 Assumed s.35 included the right to included the right to self-governmentself-government

Set out the test to be Set out the test to be used for claimsused for claims

Has been criticized Has been criticized for using a “frozen for using a “frozen rights” approach.rights” approach.

Every First Nation Every First Nation would have to prove would have to prove the right to regulate the right to regulate every component of every component of their self-governmenttheir self-government


Approach 2:Approach 2:Self-Regulation over Self-Regulation over Aboriginal & Treaty RightsAboriginal & Treaty Rights

“…aboriginal title encompasses within it a right to choose what ends a piece of land can be put…”

- Delgamuukw, para 168

“…[title includes] the right for the community to make decisions as to the use of the land and

therefore the right to have a political structure…”

- Campbell, para 137




Self-government Self-government survived Confederationsurvived Confederation

“a right to self-government…survived as one of the

unwritten “underlying values” of the

Constitution”

- Campbell, para 81

“... the Indian political and territorial right, laws and

usages remained in full force”

-Connolly, para 97 LegalLegalLandscapeLandscape3 Approaches3 Approaches


Self-Regulation of Self-Regulation of Unproven RightsUnproven Rights

“…the Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests…”

-Haida, para 27

“…the duty to consult and accommodate is part of a process of fair dealing and reconciliation…”

- Haida, para 32LegalLegalLandscapeLandscape3 Approaches3 Approaches




Recognizes right to Recognizes right to self-governmentself-government

Can expand Can expand jurisdiction based on jurisdiction based on community needscommunity needs

If relationship with If relationship with Crown breaks down, Crown breaks down, have burden of have burden of proving rights in proving rights in CourtCourt

Crown views s.35 as Crown views s.35 as “empty box”“empty box”


Approach 3:Approach 3:Residual Sovereignty of Residual Sovereignty of Aboriginal PeopleAboriginal People

“…sovereign incompatibility continues to be an element in the s.35(1) analysis, albeit a limitation that will be sparingly applied”

-Mitchell, para 154





Crown has burden to Crown has burden to prove they have prove they have authority to infringe authority to infringe Aboriginal & Treaty Aboriginal & Treaty RightsRights

S.35 would be a “full S.35 would be a “full box” of rightsbox” of rights

Has not been Has not been accepted by the accepted by the Supreme Court of Supreme Court of CanadaCanada


SummarySummary

Case law has not clearly defined the Case law has not clearly defined the nature of the inherent right to self-nature of the inherent right to self-governmentgovernment

Second approach is preferredSecond approach is preferred Canada is likely to oppose expansion of Canada is likely to oppose expansion of

First Nation jurisdictionFirst Nation jurisdiction Court process has uncertain outcomesCourt process has uncertain outcomes


Strategies for Self-GovernmentStrategies for Self-Government

Negotiated agreements likely to be supportedNegotiated agreements likely to be supported Be careful not to “undermine” Crown authorityBe careful not to “undermine” Crown authority jurisdiction over traditional practices more likely jurisdiction over traditional practices more likely

to be supported by the courtsto be supported by the courts strengthen other Aboriginal or Treaty rightsstrengthen other Aboriginal or Treaty rights


ConclusionConclusion

The right to Self-Government has been recognized and can be

exercised in a very full and meaningful way.



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National Centre for First Nations Governance 1 Our Inherent Right to Self-Government.

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