The Right to Self-Government: Critiquing the Present by Understanding the Past

The topic of Indigenous self-government is frequently raised in Canadian political discourse. However, while it is a topic that is frequently addressed, many Canadians still have misconceptions surrounding the purpose and application of Indigenous self-government, which can result in prejudice towards Indigenous populations seeking to enforce their rights. The lack of precision regarding the different processes encompassed under the umbrella term “self- government” is a potential source for this confusion because currently, self-government can be established via inherent, negotiated, and delegated jurisdictions. Examining these categories through a historic lens will hopefully clarify the purpose that animates the current push towards greater recognition of Indigenous self-government and provide readers with the tools to engage in nuanced discussions regarding the means by which self-government is recognized.

Why are Aboriginal Rights Different from Other Rights?

Before delving into the substance of the right to self-government, it is important to first address why Aboriginal rights exist as a distinct legal category to avoid the pitfall of thinking “since we are all Canadians, shouldn’t we all have the same rights?”. Understanding the purpose behind recognition requires examining the historic legal relationships contemplated by the Indigenous Nations and European settlers pre- and post-confederation. This historical perspective will not only explain why the right to self-government exists but will also serve as a useful tool to evaluate the legal doctrines currently used in its recognition.

Royal Proclamation of 1763: The Indigenous Magna Carta

The Royal Proclamation of 1763 is an edict issued by King George III following the British victory over the French in the 7 Years’ War and established a system of governance over the lands surrendered by France [1]. The Royal Proclamation has since been labelled as the “Indigenous Magna Carta” because it established the legal structure for negotiating treaties between the British Crown and Indigenous Nations, and therefore was the first colonial legal document to demonstrate the British Crown’s recognition of the right of Indigenous Nations to govern their own societies [2]

Main Takeaways

The importance of the Royal Proclamation to Aboriginal rights lies in its recognition that Indigenous Nations have ownership of their lands until the lands are ceded to the British Crown. By prohibiting British subjects from purchasing, squatting, or trespassing upon Indigenous lands, the Royal Proclamation has the effect of recognizing that Indigenous Nations have some minimum standard of legal rights to their lands [3]. The Royal Proclamation was generally understood to be an example of the British Crown unilaterally making decisions regarding their new subjects by virtue of conquest and did not address whether the Nations rights to lands were understood to include sovereignty or autonomy. Recent scholarship has highlighted that the Royal Proclamation was not created in a vacuum [4], and accordingly the Royal Proclamation must be read along with the Treaty of Niagara to understand the intended scope of rights contemplated in the Proclamation.

The Treaty of Niagara: A Necessary Tool of Interpretation

In 1764 the British Crown and representatives of 24 First Nations convened at Niagara to conclude treaties that further clarified their relationship beyond the scope of the Royal Proclamation. By examining the content of the agreement at Niagara, including the references made to Indigenous legal customs such as oral agreements or agreements made via Wampum, it becomes clear that the parties agreed to peaceful relations and mutual non-interference in the internal affairs of each nation. These agreements therefore demonstrate colonial recognition of Indigenous sovereignty as the Crown recognized Indigenous Nations right to govern their distinct societies, a right which cannot be intruded upon without consent [5].

 Main Takeaways

When the text of the Royal Proclamation is read in the context of the Treaty of Niagara it becomes clear that the British Crown was engaged in treaty-making on the basis of a nation-to-nation relationship, which understood each nation to have legal rights to their land and to manage their internal affairs, as opposed to making declarations on a sovereign-subject basis. The Royal Proclamation is understood to be a constitutional document that has never been repealed or amended, which means that Canada is bound to act consistently with the spirit of the Royal Proclamation. The key takeaway from this document is that Canada is currently obliged to recognize some form of Indigenous sovereignty by virtue of the Royal Proclamation’s previous recognition of the organized social and political structures that existed prior to the European settlement of North America [6].

Constitution Act 1867: Crown Seizing Sovereignty

When Canada declared independence and drafted its own Constitution under the British North America Act of 1867, responsibility for the obligations of the British Crown towards the Indigenous Nations was transferred to the newly developed concept of a Canadian Crown (this being the federal government) [7]. In the intervening period between the Treaty of Niagara and the drafting of the Constitution, the political and military influence of the Indigenous Nations had greatly diminished [8], while the European settlers adopted the morally reprehensible and legally questionable “Doctrine of Discovery,” which allowed Europeans to claim sovereignty over lands not occupied by Christians [9], to justify their colonial expansion. Accordingly, section 91(24) of the British North America Act reflects this change in conception as the Canadian Crown gave itself the exclusive authority to unilaterally pass laws relating to Indigenous Peoples. The wording of the Constitution and the underlying Doctrine of Discovery supported early interpretations of Indigenous rights that viewed Indigenous Nations as being subjects whose rights stemmed from the goodwill of the sovereign: the Canadian Crown [10].

Constitution Act 1982: An Attempt at Reconciliation

While the Constitution seemed to squarely reject Indigenous sovereignty, a series of judicial decisions beginning in the 1960s started to recognize the notion that Indigenous Nations have rights by virtue of their historic societies that do not need to be granted by the Crown [11]. When the Pierre Trudeau government announced plans to repatriate the Constitution in 1980, Aboriginal leadership successfully lobbied Parliament to give constitutional protection to these rights. The protection was ultimately implemented in section 35 of the Constitution Act, 1982 [12]. Section 35 affirms the “existing Aboriginal and treaty rights of the Aboriginal Peoples” [13] and therefore recognizes the prior occupation of Canada by organized, autonomous societies and aims to reconcile their modern-day existence with the Crown’s assertion of sovereignty over them [14].

Why History Matters Today

Understanding the constitutional history of Canada demonstrates that Indigenous Peoples are owed unique rights such as the right to self-government by virtue the existing political and legal structures that predate European contact and the historic relationship between these Indigenous Nations and the Crown.

The Right to Self-Government

Now that it is clear why the right to self-government exists it is possible to examine how the right has been recognized. In so doing, it is important to keep in mind how each approach understands the source of the right to self-government in order to evaluate their effectiveness.

Self-Government via Inherent Jurisdiction

Section 35 of the Constitution Act, 1982 has been understood to encompass and protect the inherent right of Indigenous Peoples to self-government [15]. In this context, the term “inherent” means that the right stems from the legal authority of Indigenous Nations that existed prior to colonisation, but it is important to remember that section 35 limits the scope of protection offered to self-government to activities considered to be “Aboriginal or treaty rights” [16]. As we will see, this has been interpreted narrowly to only protect activities integral to the pre-contact society, and thus largely prohibits self-government in relation to modern issues. There are multiple potential approaches to recognizing inherent rights, but, for brevity, this analysis will focus on protecting the inherent right to self-government through litigation and the burden this places on Indigenous Nations.

Inherent Jurisdiction Process

Indigenous Nations often engage in policies or practices that have the effective of regulating certain activities. In 1996 the Supreme Court of Canada issued a decision that prevented Indigenous Nations from bringing a general claim under section 35 if an exercise of self-government is legally challenged. Rather, Indigenous Nations can defend their exercise of self-government by bringing a claim for the right to regulate and participate in a specific activity, provided the activity was integral to their pre-contact society [17]. While a successful defense results in the right to regulate the activity going forward, this has been noted to be an expensive and piecemeal approach to self-government. The Indigenous Nation bears the evidentiary and monetary burden to demonstrate they meet 10 criteria that, when considered together, prove that the activity that they wish to regulate was integral to their distinctive culture, regulated by the specific Indigenous Nation at the time of European contact, and that there is continuity between the pre-contact activity and the right asserted. Further, the result of undergoing this process only results in the right to regulate the specific activity being challenged and thus provides no certainty regarding the right to regulate similar activities [18].

Results

Claiming an inherent right to self-government contemplates a process whereby Indigenous Nations seeking to exercise a non-treaty right to self-government are unable to know in advance if their use of authority is legitimate beyond the minimal guidelines that they can regulate activities integral to their pre-contact society and only if the regulation applies very narrowly to the specific activity in question. This process ensures that Indigenous Nations can only secure protection for the right to regulate activities that a colonial institution determined were integral to their society prior to contact, which invites stereotyping and largely prevents the recognition of “lawful” regulation of modern activities.

Concerns and Contradictions

The Supreme Court has been clear that inherent rights stem from the pre-existing sovereignty of Indigenous Nations, [19] but this approach only provides rights if the nations undergo the expensive and uncertain process of proving that right at trial. If sovereignty is the source of these rights, does starting from the position that these rights are withheld until proven and can only apply to activities that existed pre-contact as determined by a colonial institution truly reconcile the prior occupation of Canada by autonomous societies with Crown sovereignty? 

Self-Government via Negotiated Jurisdiction

In 1995 the Crown created a policy titled the “Inherent Rights Policy” which recognizes that section 35 protects the inherent Aboriginal right to self-government 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 their resources [21]. This policy is intended to serve as an alternative to the lengthy, expensive, and conflict-based mechanism of litigating for recognition previously discussed by creating a framework for negotiating agreements on self-government between the Crown and Indigenous Nations [22]. The policy creates three distinct approaches towards negotiation based on the underlying activities that will be the subject of self-government:

1. Matters internal and integral to the groups distinct Aboriginal culture.
   The Crown is willing to either negotiate general recognition to the right to self-govern these activities or will negotiate detailed arrangements if need be.

2. Matters that go beyond what is integral to the distinct Aboriginal culture.
   The Crown is prepared to negotiate some degree of recognition over these areas provided the federal government has appropriate jurisdiction. Here, conflict between self-government and either provincial or federal laws would be resolved in the favour of either government.

3. Matters where there is no compelling reason to recognize self-government.
   The Crown will not negotiate regarding Canadian sovereignty, defence and external relations, and other national interest powers. [23]

Negotiation Process

Although the concept of negotiating is based in the recognition of an inherent right to self-government, Indigenous Nations must undergo lengthy negotiations before being able to make use of this so-called inherent right, regardless of the category the underlying regulated activity falls into. In order to successfully negotiate, Indigenous Nations must implement specific policies regarding accountability and financing agreements [24], as well as agree to a certainty clause that renounces their ability claim any other Aboriginal or treaty rights [25]. Conversely, because the negotiation framework is a policy and not a statute, it does not impose any obligations on the Crown to reach an agreement.

Concerns and Contradictions

While this policy claims to recognize an inherent right to self-government, in reality the right seems to be granted at the goodwill of the sovereign instead of on a nation-to-nation basis, as Indigenous Nations must begin the negotiating process and comply with onerous procedures while the Crown is free to simply not negotiate. Is it appropriate for the Crown to unilaterally impose Europeanized conceptions of the conditions required to exercise an inherent right, the source of which stems from a distinct legal and political order?

Delegated Jurisdiction

The idea of delegated jurisdiction is firmly rooted in the notion of Crown sovereignty, as section 91(24) of the Constitution Act, 1867 allows the Crown to pass legislation in respect to Indigenous Nations. The Crown also has the power to delegate a portion of its authority to Indigenous Nation through legislative means which has historically been used to delegate some ability to self-government.

Examples of Delegated Jurisdiction

The Indian Act is the main, but not the only, example of the Crown exercising their powers pursuant to section 91(24) of the Constitution to delegate self-government to Indigenous Nations. Under the Indian Act, Indigenous Nations have the authority to choose their own leadership, draft constitutions, and enact by-laws that govern pre-approved internal activities [26].

Results

The delegated approach offers self-government in form but not in substance. While it allows for Indigenous Nations to govern and regulate certain internal activities, it does not amount to the recognition of a right. Therefore, the Crown has the ability to unilaterally amend or repeal the ability to self-govern at its own discretion.   

Concerns and Contradictions

Legislation that delegates self-governing authority typically only applies to First Nations as narrowly defined under the Indian Act and acceptance of the delegated authority often imposes significant Crown oversight on Indigenous Nations. This approach receives valid critiques on the basis that it reinforces views of Crown sovereignty that are based in the Doctrine of Discovery and is antithetical to the recognition of inherent sovereignty and reconciliation, however, is it truly different from negotiating rights to self-government? While it is true that negotiation results in the recognition of an inalienable right, in both approaches the Crown retains absolute sovereignty, choses the areas that are appropriate for self-government, and imposes paternalistic conditions in order to claim these rights.

Conclusion

By looking at Canada’s constitutional history it becomes clear that the recognition of Aboriginal rights such as the right to self-government have always been a part of Canada’s constitutional makeup. Thus, the discussion should be centered on how and not if the Crown will recognize the right to self-government. The right to self-government should be implemented in a manner that recognizes that the source of the right is the sovereignty of existing societies that predate first contact and not the goodwill of the Canadian Crown. The current system only recognizes a right to self-government after Indigenous Nations undertake the difficult process of claiming their rights, and only recognizes discrete categories of activities that can be self-governed, which seems to directly contradict the notions of Indigenous sovereignty contemplated by Canada’s constitutional documents. While recognizing the right to self-government is a laudable objective, if the means chosen are not appropriate and consistent with the source of the right, there is a risk of re-perpetuating historic harms under new labels. 

References

1 Jack Woodward, “Aboriginal Law in Canada”, (2002 Carswell loose-leaf) online: <https://proview- thomsonreuterscom.ezproxy.library.dal.ca/title.html?redirect=true&titleKey=CW%2FEG%2FWOODWARDNL_EN% 2Fv1.202104141013&titleStage=F&titleAcct=i0ad8287400000173a0f2ca262a428fb4#sl=e&eid=d1804fb350a7789f 8e210c1e8922fe33&eat=FrontMatterTitleAnchor&pg=1&psl=&nvgS=false> at § 2:10. The Royal Proclamation of 1763 [Aboriginal Law in Canada].

2 Anthony J. Hall, Royal Proclamation of 1763 (4 March 2020) online: The Canadian Encyclopedia

<https://www.thecanadianencyclopedia.ca/en/article/royal-proclamation-of-1763>

3 Aboriginal Law in Canada, supra at § 2:10. The Royal Proclamation of 1763.

4 John Borrows, “Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government” online: (PDF), Simon Fraser University https://www.sfu.ca/~palys/Borrows-WampumAtNiagara.pdf [Wampum at Niagara] at p 5.

5 Wampum at Niagara, supra at p 5-7.

6 Aboriginal Law in Canada, supra at § 2:10. The Royal Proclamation of 1763

7 Aboriginal Law in Canada, supra at § 2:20. The Constitution Act, 1867.

8 Peter Scott Vicaire, “Two Roads Diverged: A Comparative Analysis of Indigenous Rights in a North American Constitutional Context” (2013) 58 McGill L.J. 607 at p 6.

9 “Indigenous Title and the Doctrine of Discovery” (January 26 2020) online: Indigenous Corporate Training Inc <https://www.ictinc.ca/blog/indigenous-title-and-the-doctrine-of- discovery#:~:text=The%20Doctrine%20of%20Discovery%20was%20the%20international%20law%20that%20gave, was%20not%20populated%20by%20Christians.>

10 Saint Catharines Milling and Lumber Co v Canada, 2 ExCR 202.

11John Burrows, “Challenging Historical Frameworks: Aboriginal Rights, The Trickster, and Originalism” (2017) Can Historical Rev, 98:1 at p 119.

12Melvin H. Smith, Q.C., “Some Perspectives on the Origin and Meaning of Section 35 of the Constitution Act, 1982” (2000) Fraser Institute 41 at p.5.

13 Aboriginal Law in Canada, supra at § 2:26 Sources of Aboriginal Law

14 R v Desautel, 2021 SCC 17 (CanLII) at para 22.

15 Kent McNeil "The Jurisdiction of Inherent Right Aboriginal Governments" (2007) online (PDF) https://digitalcommons.osgoode.yorku.ca/all_papers/261 at p 2 [Jurisdiction of Inherent Right].

16 Ibid at p 4.

17 R v Pamajewon, [1996] 2 SCR 821, SCJ no 20.

18 Jurisdiction of Inherent Right, supra at p 13.

19 Ibid at p 8.

20 R v Sparrow, [1990] 1 SCR 1075, [1990] 1 RCS 1075, at para 70

 21 Government of Canada, “The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government” (1995), online: http://www.aadncaandc.gc.ca/eng/1100100031843/1100100031844 [Negotiation of Aboriginal Self-Government].

22 Ibid

23 Ibid

24 Ibid

25 Naiomi Metallic, "Ending Piecemeal Recognition of Indigenous Nationhood and Jurisdiction: Returning RCAP’s Aboriginal Nation Recognition and Government Act" in Karen Drake and Brenda L. Gunn, eds, Renewing Relationships: Indigenous Peoples and Canada (Saskatoon: Native Law Center, 2019) at p 12.

26 Ibid at p 13-17.