Image: APTN News <aptnnews.ca/2019/06/27/three-metis-nations-sign-historic-self-government-agreements-in-ottawa/>
Tansi Nîtôtemtik,
Indigenous governance looks different today than when the Constitution Act, 1982 was adopted. Included in the Act is section 35, a constitutional acknowledgment that “existing aboriginal and treaty rights… are hereby recognized and affirmed.”[1] It is important to note that section 35 only affirms rights that were in existence prior to 1982 – however, since this time there have been regular efforts between Indigenous nations and the federal government to negotiate self-government agreements.
Negotiated agreements allow Indigenous communities to make laws in various areas, including: “social and economic development, education, health, lands, and more.”[2] These agreements can be comprehensive or they can be “sectoral agreements in education, health, resource management, etc.”[3] Self-government agreements, then, are broader than modern treaties and not all self-government agreements are incorporated in modern treaties. A noteworthy example of a self-government agreement included in a modern treaty is the 1999 Nisga’a Final Agreement, which will be discussed in tomorrow’s post.
Currently, there are 25 standing self-government agreements between the federal government and 43 Indigenous communities; there are also approximately “50 self-government negotiation tables across the country.”[4] While negotiations are ongoing in some communities, given the strained relationship between Indigenous peoples and the federal government there can be skepticism about negotiating agreements. Thus, the agreements present challenges and opportunities for Indigenous communities looking for their governance rights to be recognized.
Challenges of Self-Government Agreements for Indigenous Communities
A primary concern with negotiated agreements is that it will require Indigenous nations to give up claims of Aboriginal title. According to Cree (nêhiyaw) lawyer Sylvia McAdam, self-government agreements require foregoing future Aboriginal rights claims in exchange for a potential agreement.[5] There is a concern that self-government agreements “relegate Indigenous nations” to municipal status and thus deny the inherent nature of self-government claims.[6]
A related concern is that negotiations carry too many emotional and tangible burdens for community members to accept. Delays and lengthy negotiations periods can make the burdens worse. The late Arthur Manuel, of the Neskonlith Indian Band in British Columbia, and Grand Chief Ronald Derrickson, of the Westbank First Nation in British Columbia, believe that tangible burdens can lead the negotiations to go “on and on and never bear fruit.”[7] Also, the substantial cost of negotiation fees has been criticized by Manuel and Grand Chief Derrickson as being short-sighted; rather, the funds should go to other more important initiatives, such as measures to reduce poverty.[8]
Opportunities of Self-Government Agreements for Indigenous Communities
However, there are positive aspects of negotiating self-government for Indigenous peoples. The agreements can allow Indigenous communities to control on the ground areas of cultural significance, including: social programs, health, and education. Negotiated agreements can also bring economic opportunities.
McAdam points to the Muskeg Lake Cree Nation in Saskatchewan as an economic success story. The Nation used a self-government agreement “to develop [an] urban reserve” in Saskatoon where they built successful business enterprises.[9] Some of the successful business ventures include: Muskeg Property Management Inc.; Cree Way Gas Ltd.; Cree Investments; and Dakota Dunes Golf Links LP.[10] This story is indicative of the power of economic and cultural self-determination that self-governance can bring.
Thus, since the Constitution Act, 1982 included some protection for Aboriginal rights in Canada’s Constitution, Indigenous communities and the federal government have been engaging in negotiations for self-government agreements. Indigenous communities looking to negotiate such agreements will look to the individualized challenges and opportunities that come from self-government negotiations.
Until Next Time,
Team ReconciliAction YEG
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[1] Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[2] Crown-Indigenous Relations and Northern Affairs Canada, “Self-government” (12 July 2018), online: Government of Canada <https://www.rcaanc-cirnac.gc.ca/eng/1100100032275/1529354547314> [CIRNA].
[3] John J Borrows & Leonid I Rotman, Aboriginal Legal Issues: Cases, Materials & Commentary, 5th ed (Toronto: LexisNexis, 2018) at 63.
[4] CIRNA supra note 2.
[5] Sylvia McAdam (Saysewahum), Nationhood Interrupted: Revitalizing nêhiyaw Legal Systems (Saskatoon: Purich Publishing Ltd, 2015) at 74 [McAdam].
[6] Ibid at 75.
[7] Arthur Manuel & Grand Chief Ronald Derrickson, The Reconciliation Manifesto: Recovering the Land, Rebuilding the Economy (Toronto: James Lorimer and Company Ltd, 2017) at 114.
[8] Ibid.
[9] McAdam supra note 5 at 73-74.
[10] Ibid.
