Editors --- "Aboriginal Self-Government; The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government - Digest" [1996] AUIndigLawRpr 44; (1996) 1(2) Australian Indigenous Law Reporter 330

Aboriginal Self-Government; The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government

Published under the authority of the Honourable Ronald A. Irwin, P.C., M.P.,

Minister of Indian Affairs and Northern Development

Ottawa: 1995

For more than a decade negotiations have been taking place between Canadian governments and Aboriginal peoples pertaining to constitutional amendments which would explicitly recognise Aboriginal self-government. A series of multilateral meetings between all levels of the Canadian government and four aboriginal organisations culminated in the 1992 Charlottetown Accord. The Accord received substantial consensus from all participating parties, however it failed to be entrenched in the Constitution when put to a referendum in October 1992.

Reproduced below is the "Executive Summary" of the Federal Policy Guide on Self-Government (1995), a document that developed out of the negotiation process leading to the Charlottetown Accord. The inherent right to self-government outlined in the Policy Guide is one based on contingent rather than sovereign rights.

The Government of Canada recognizes the inherent right of self-government as an existing right within section 35 of the Constitution Act,1982. Now the federal government has developed an approach that will enable Aboriginal peoples in Canada to make self-government a reality. The federal government proposes setting aside legal and constitutional debates that have stymied progress toward Aboriginal self-government and instead working out practical arrangements through negotiated agreements.

The federal approach is designed to be flexible enough to accommodate the diverse needs and interests of Indian, Métis and Inuit peoples, including those living on and off a land base, in the North, in urban centres as well as in remote locations. It will enable the federal government, Aboriginal groups and the relevant province or territory to sit down together and negotiate agreements tailored to best meet the needs of various Aboriginal groups. The federal government believes this is the only way to make real progress, that this is an approach that all parties can work with and one that Canadians will support.

The Crown has a unique, historic, fiduciary relationship with Aboriginal peoples in Canada. The fact that the federal government recognizes an inherent right of self-government does not imply the end of this historic relationship. But it is important to understand the ways in which the exercise of Aboriginal self-government may change the nature of this relationship. As Aboriginal governments assume greater control over decision-making that affects their communities, they will also assume greater responsibilities for those decisions. This will mean that the role and responsibilities of the Crown will lessen. In this sense, the historic relationship between Aboriginal peoples and the Crown will not disappear, but will evolve as a natural consequence of Aboriginal peoples' changing role in shaping their own lives and communities.

Building a new relationship with Aboriginal peoples in Canada means providing them with the tools to become self-governing. It means restoring the dignity of Aboriginal peoples and renewing hope in their communities. It does not mean the end of the special relationship between Aboriginal peoples and the Crown.

Key Elements of the Federal Approach

The Government of Canada's recognition of the inherent right is based on the view that the Aboriginal peoples of Canada have a right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and resources.

At the same time, the federal government believes that Aboriginal self-government must operate within the Canadian federal system, in harmony with other governments, and in a way that enhances the participation of Aboriginal peoples in Canadian society.

The federal approach focuses on developing practical arrangements that respond to the self-government aspirations of Aboriginal peoples. It allows for the negotiation of self-government authorities that fit the widely different needs and circumstances of Indian (Status and Non-Status), Métis and Inuit peoples, and ensures that these authorities are exercised by accountable Aboriginal governments and institutions.

One important area not open to negotiation relates to the application of the Canadian Charter of Rights and Freedoms. Self-government agreements must contain a provision ensuring that the Charter applies to Aboriginal governments and institutions as it applies to other governments in Canada. The Charter itself contains the necessary flexibility to accommodate distinct Aboriginal approaches to self-government.

Getting Started

Self-government arrangements won't be put in place right away. They will be the subject of negotiations in the coming years among Aboriginal peoples, and federal, provincial and territorial governments.

Within the federal government, the Minister of Indian Affairs and Northern Development is mandated to enter into negotiations with First Nations and all Aboriginal peoples in the territories. The Federal Interlocutor for Métis and Non-Status Indians is mandated to enter into negotiations with Métis south of the sixtieth parallel and Indians living off a land base.

As a first step, the federal government will meet with duly-mandated representatives of Aboriginal groups and provincial and territorial governments to establish mutually acceptable processes for negotiations. A variety of approaches at provincial, territorial, treaty, regional or local levels will be considered. Wherever practical and if all parties agree, existing processes or structures will be used for the purpose of self-government negotiations.

The federal government will work with provinces, territories and Aboriginal groups to develop appropriate consultation mechanisms for municipalities and third parties that may be directly affected by self-government negotiations and agreements.

Negotiating Self-Government Arrangements

Under the federal approach, the scope of negotiable self-government powers covers a range of matters designed to meet the needs of Aboriginal groups across the country. These powers are both legislative and/or administrative in nature, and deal with such matters as: the establishment of governing structures, leadership selection and group membership; language, culture, religion; education; land, resource and environmental management on Aboriginal lands; and a range of authorities in areas such as health and social services, law enforcement and administration, housing, taxation, policing, local transportation, licensing, regulation and operation of Aboriginal businesses, among others.

Where provincial or territorial jurisdiction or interests are affected, the federal government would only proceed with negotiations and agreements with the involvement of the province or territory concerned.

Aboriginal governments would not have authority to pass laws in relation to certain matters, such as defence and external relations, the management and regulation of the national economy, federal undertakings, or those parts of the national legal framework that apply to all Canadians.

In addition, self-government will not mean the automatic exclusion of federal and provincial laws. Because of the need for harmony among jurisdictions, agreements will need to be clear about how Aboriginal laws relate to other laws.

Various Approaches to Self-Government

Indian, Inuit and Métis peoples live in widely diverse circumstances and have different needs and aspirations. The federal approach will enable them to exercise self-government in different ways: through their own government on their land base; within wider public government structures; or through institutional arrangements. The federal government is willing to support various approaches that will meet the needs of different Aboriginal groups.

First Nations

Negotiated self-government arrangements would enable First Nations to exercise control over their own affairs and deliver programs and services better tailored to their own values and cultures.

These arrangements would recognize the jurisdiction and authority of First Nations' governments and replace the Indian Act with a modern partnership. Self-government arrangements with Treaty First Nations would build on the treaties and on the relationship already established by the treaties. Where all parties to negotiations agree, rights contained in self-government agreements could be constitutionally protected under section 35 of the Constitution Act, 1982.

Of course, not all members of a First Nation live on its land base. With the agreement of the provinces and at the option of non-resident members, First Nation laws and services delivered by First Nations could apply to members residing off the land base, where feasible and affordable.

Inuit Communities

Inuit groups in various parts of Canada have said they want to realize their self-government aspirations within the context of public government, even though they have, or will receive their own separate land base as part of a comprehensive land claim settlement. The public government of the new territory of Nunavut is one example of such an arrangement on a large scale.

The federal approach contemplates self-government arrangements in a public government context, although it does not preclude other arrangements at some future date.

Where the parties to the negotiations agree, the government is also prepared to protect rights negotiated in public government arrangements as constitutionally protected rights under section 35.

Métis and Indian Groups Residing off a Land Base

The government is prepared to enter into negotiations with provinces and Métis and Indian groups residing off a land base. With provincial agreement, the Government is also prepared to protect rights in agreements as constitutionally protected section 35 treaty rights.

The type of self-government arrangements off a land base will naturally be different from those which can be implemented on a land base. The federal government is willing to look at various approaches to self-government off a land base including: forms of public government; devolution of programs and services and the development of institutions providing services; and other arrangements where feasible.

Many Métis groups have expressed the view that enumeration is an essential building block for self-government. The Government agrees and is prepared to cost share with the provinces concerned the enumeration of Métis and the identification of Indian people living off a land base who may be covered by self-government arrangements.

Métis with a Land Base

The Alberta Métis Settlements have also expressed interest in pursuing self-government, as it applies to their specific circumstances. Consequently, the federal government, with the participation of the Government of Alberta, is also prepared to negotiate self-government arrangements with Métis people residing on Alberta Métis Settlements that reflect their unique circumstances. Should lands be provided by other provinces to Métis people under similar regimes, the federal government would be prepared to negotiate similar arrangements, with the participation of the province in question.

The application of Métis laws and delivery of Métis services to members who reside off the land base may be addressed in negotiations with the provinces concerned and would be at the option of non-resident members.

Self-Government in the Western Northwest Territories (NWT)

Aboriginal groups in the western NWT have an opportunity to develop unique self-government arrangements within public government structures, which are not feasible south of the sixtieth parallel.

The federal government also believes that this approach is the best way to address the distinctive features of this region including the fact that many communities are mixed. Given these circumstances, and considering inefficiencies that may arise due to duplication of programs and services in mixed communities, the creation of completely separate Aboriginal governments in the western NWT may not be practical or efficient.

The federal government believes that the self-government aspirations of Aboriginal peoples in the western NWT can be addressed by providing specific guarantees within public government institutions. The creation of Aboriginal institutions to exercise certain authorities may also be a useful approach.

Self-Government in the Yukon

There are four First Nation self-government agreements which were brought into force by legislation in 1995 and processes are in place to continue negotiating with the remaining First Nations in the Yukon. The federal government's participation in these negotiations will be guided by the inherent right policy and existing commitments.

Tools for Making Self-Government a Reality

There are a variety of mechanisms that might be suitable for implementation of self-government agreements including treaties, legislation, contracts and memoranda of understanding. Where all parties agree, the federal government is prepared to protect certain rights in negotiated self-government agreements as treaty rights within the Canadian Constitution.

Treaties create binding obligations of an enduring nature. They constitutionally protect the rights they contain. The main criterion used to decide if a matter should be included in a treaty is whether the matter is a fundamental element of self-government which should bind future generations.

Many Aboriginal groups already have treaties with the Crown which have established a special relationship. The federal government does not intend to reopen, change or displace these treaties through the implementation of the inherent right or self-government agreements. Instead, it is prepared to build on the existing treaty relationship.

Financial Obligations, Responsibility and Political Accountability

Financing self-government is a shared responsibility of federal, provincial, territorial and Aboriginal governments. Implementation of self-government must take into account the difficult financial situation facing all governments and the need for greater efficiency and effectiveness in the use of government resources.

Negotiations on implementation funding will consider:

* existing levels of support;

* programs and services being assumed by the Aboriginal governments;

* the ability of the Aboriginal government to raise its own revenue;

* the cost-effectiveness of the proposed arrangements;

* the objective of ensuring basic public services for Aboriginal peoples comparable to those available to others in the vicinity; and

* the need for stable and flexible funding arrangements.

Governments will need to work together to eliminate duplication of funding, programs and services and to ensure the most efficient and effective use of resources.

All governments have to be politically and financially accountable for the authorities they exercise. This responsibility applies equally to Aboriginal governments and institutions. Provisions to ensure accountability will have to be set out in self-government agreements.

Transition

It will be important to ensure a smooth transition from current arrangements to implementation of the inherent right through negotiated agreements. All agreements should therefore include appropriate transition measures to ensure that implementation of self-government does not create legal uncertainty.

Finalizing Agreements

Parliament, provincial legislatures and Aboriginal groups will need to ratify self-government arrangements.

Additional information and copies of the Aboriginal Self-Government policy document can be obtained from the Information Kiosk, Department of Indian and Northern Affairs: Room 1415, Les Terrasses de la Chaudière, 10 Wellington Street, Hull, Quebec K1A 0H4, Canada. Telephone: +1 819 997 0380.