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Self-determination and Governance

Self Determination
Prior to contact with European explorers, Indigenous nations exercised control of their territories, governance authorities, law-making and capacity for international relations.  In Canada, it was this capacity to enter international relations that forms the legal basis for Treaties with those nations, and in turn forms the basis of Canada’s own claim to sovereignty.

Despite the fact that Canada’s own claims to sovereignty and territorial integrity rest upon the sovereignty of Indigenous nations, the political and legal systems of Canada do not recognize the sovereignty of indigenous nations, nor do they acknowledge that indigenous peoples in Canada enjoy a right to self-determination.

The Indigenous Rights Centre will develop resources, arguments and cases to secure meaningful recognition of the sovereignty of indigenous nations, as well as the self-determination of indigenous peoples, through both Canadian aboriginal rights law and international law.

Impediments to First Nations Governance
There are several impediments to indigenous governance.  The greatest of these is the refusal of Canadian authorities and courts to recognize the law-making authority of traditional authorities or other indigenous institutions.  For First Nations, the only recognized law making authorities are ‘band councils’.  For Metis, there are no law-making authorities recognized by the federal government, though there are some authorities recognized under provincial legislation.

In other words, Canadian law does not recognize an inherent right to self-government, despite the existence of an express federal ‘self-government’ policy.  

Even where law-making authority is recognized, it is severely limited.  The Indian Act is a colonial piece of legislation and is in need of substantial reform.  One aspect of the Indian Act which requires substantial reform are the lawmaking provisions.  Specifically, the Minister of Indian Affairs holds an absolute and unfettered veto (Ministerial disallowance) over First Nations law-making authority.  Use of this power prevents First Nations from applying their law-making authority, reducing such ‘authority’ to remain consistent with departmental ‘policy’ and Ministerial whims.

In addition, First Nations governance is restricted by the excessive and authoritarian use of contribution agreements.  These agreements dictate what services First Nations will provide and how First Nations will provide those services.  They are the source of onerous reporting requirements and they provide the ability for the federal government to take control of a First Nation for any number of minor reasons.  This is the only known example in Canadian law where a government can be stripped of control over its resources due to a breach of conditions in a funding agreement.

The Indigenous Rights Centre will advocate that the power of Ministerial disallowance, the negotiation and implementation of contribution agreements and other aspects of government policy which implicate First Nations governance implicate the Honour of the Crown.  As a result, the Minister and the Crown have particular obligations and duties when interfering in the abilities of First Nations to manage their own internal affairs.

Developing opportunities to apply customary law
The Indigenous Rights Centre is focused on development of aboriginal rights law, we are not experts in the customary laws of indigenous nations.  However, as aboriginal rights lawyers, we can create legal space, in the form of procedures and mechanisms, for First Nations, Inuit or Metis to apply customary laws themselves.

One example is the development of community based legal procedures to apply customary law.  For example, section 41 of the Canadian Human Rights Act allows the Canadian Human Rights Commission to defer examination of a human rights complaint if there is an alternative procedure available to the complainant.  First Nations could create community based Justice Commissions to examine human rights complaints of First Nations citizens, or of the FIrst Nations themselves.

Another example is the development of community based arbitration forums, which would have the authority and the ability to apply traditional concepts of peacemaking, and, if necessary, apply customary law to disputes between First Nations, First Nations citizens or even between non-natives working or conducting business with First Nations.