Naiomi Metallic Different theories of First Nations governance Naiomi Metallic CESD 3216 – CESD and the Law January 25-26, 2010 Part 3

What is self-government? n What do we mean when we use the term “self- government”? n What topics do First Nations currently have control to make decisions over? n What sort of topics do you think First Nations should have control to make their own decisions over?

Different theories of governance within First Nation 1. Delegation of s. 91(24) power through Indian Act 2. R. v. Pamajewon – self-government right as historical right under s Self-government attached to other s. 35 rights 4. The inherent right to self-government 5. Negotiated self-government

1. Delegation of s. 91(24) through Indian Act n The governance powers of a Band Council are set out in sections of the Indian Act. n Things to notice: –Lists municipal style type of powers (some anachronistic) –What’s missing: natural resource management; environmental protection; Aboriginal language, culture and spirituality; family and child welfare; policing; social services; education; employment; justice… –Except for by-laws relating to intoxicants (s. 85.1) (which have to be approved by a majority of electors of the band), all by-laws: 1.Cannot be inconsistent with the Indian Act or regulations made under the Act; and 2.Are subject to the approval of the Minister of Indian Affairs (see s. 82, 83(1) and (4)).

1. Delegation of s. 91(24) through Indian Act (cont’d) n Do Band Councils any powers beyond those set out in the Indian Act? –Courts have gone both ways on this question. –Some taking a narrow approach Band council are created under the Indian Act and derive their authority to operate qua band councils exclusively from the Act. … They have no other source of power. (Paul Band (Indian Reserve No. 133) v. R. (1983)). –More recent cases take a broader approach, finding, in the least, that Band Councils possess all the powers necessary to carry out their responsibilities under the Indian Act, even when not specifically provided for.

2. R. v. Pamajewon (1996)– self- government right as historical right under s. 35 n Band Council running high stakes bingo on the reserve, contrary to Criminal Code. Had passed by-laws having to do with lotteries (not under Indian Act). n Asserted “a broad right to manage the use of their reserve lands” as part of self-government. n Supreme Court of Canada decided against them, without deciding whether section 35 included a right to self-government. n Found that the same test for determining whether hunting and fishing rights existed applied to claims for self-government.

2. R. v. Pamajewon (1996)– self- government right as historical right under s. 35 (cont’d) n Aboriginal rights test involves proving that activity, practice, custom, etc., is a modern evolution of an activity, etc., that was integral and distinctive to First Nation’s pre-contact culture. n Don’t consider broad jurisdiction, but have to specify practice or activity n In the case, the self-government right was characterized the right to regulate gambling activities on reserve lands. n Court finds that no proof that First Nation in question regulated gambling / games pre-contact.

2. R. v. Pamajewon (1996)– self- government right as historical right under s. 35 (cont’d) n Problems with this approach? –Requires proving each and every practice on its own, instead of finding broader jurisdiction –Freezes self-government in the past; limits governance to those things First Nations dealt with pre-contact.

3. Self-government attached to other s. 35 rights n In Delgamuukw v. British Columbia (2007), the Supreme Court of Canada defined Aboriginal Title in a way that appears to make self-government a necessary element of it: A further dimension of aboriginal title is the fact that it is held communally. Aboriginal title cannot be held by individual aboriginal persons; it is a collective right to land held by all members of an aboriginal nation. Decisions with respect to that land are also made by that community.

3. Self-government attached to other s. 35 rights (cont’d) n The significance of this passage was recognized by Justice Williamson in Campbell v. British Columbia (2004): … passages from Delgamuukw suggesting the right for the community to decide to what uses the land encompassed by their Aboriginal title can be put are determinative of the question. The right to Aboriginal title “in its full form”, including the right for the community to make decisions as to the use of the land and therefore the right to have a political structure for making those decisions, is, I conclude, constitutionally guaranteed by Section 35.

3. Self-government attached to other s. 35 rights (cont’d) n The same reasoning would seem to extend the scope of the right of self-government to Aboriginal and Treaty rights generally. n The Supreme Court of Canada has suggested as much in R. v. Sappier & Polches; R. v. Gray (2006): The right to harvest wood for domestic uses is a communal one. Section 35 recognizes and affirms existing aboriginal and treaty rights in order to assist in ensuring the continued existence of these particular aboriginal societies. The exercise of the aboriginal right to harvest wood for domestic uses must be tied to this purpose. The right to harvest … is not one to be exercised by any member of the aboriginal community independently of the aboriginal society it is meant to preserve. It is a right that assists the society in maintaining its distinctive character.

3. Self-government attached to other s. 35 rights (cont’d) n What would having self-government rights over s. 35 rights look like? –Fishing rights –Hunting rights –Harvesting rights n Mi’kmaq concept of Netukulimk –includes the use of natural bounty provided by the Creator, for the self-support and well-being of the individual and the community at large, to achieve adequate standards of community nutrition and economic well-being, without jeopardizing the integrity, diversity or productive of our native environment.

4. The inherent right to self-government n Can be defined as the right of the Aboriginal peoples to govern their own territories and peoples within Canada. n It is inherent in the sense that it is derived not from the Canadian Constitution or Canadian law, but from the existence of Aboriginal nations as independent cultural, social and political entities with their own laws and systems of government prior to European colonization of North America.

4. The inherent right to self-government (cont’d) n The way the British Crown dealt with First Nations in the early period of contact (through Treaties and Royal Proclamation 1763) recognized inherent right to self- government. n In this way, inherent right to self-government became a part of the common law. n US cases from 1860s by Justice Marshall (), lead to law that Indian Tribes maintained residual sovereignty –Has led to different approaches between Canada and US with respect to First Nations. US has greater recognition of Tribal laws and Tribal Courts.

4. The inherent right to self-government (cont’d) n Canada - Conolly v. Woolrich follows US cases to find Aboriginal laws, customs and traditions remained in tact – saw in last presentation n From Confederation to 1990’s – ignored n To some extent recognized politically – in 1995 the Canadian government affirmed its acceptance of the inherent right in a 1995 policy guide entitled Aboriginal Self-Government.

4. The inherent right to self-government (cont’d) n A majority of the Supreme Court of Canada has yet to recognize this form of self-government (and this would require them to move away from R. v. Pamajewon). n However, this type governance supported by the UN Declaration of the Rights of Indigenous People. n Some First Nations are “just doing-it” – but the legal impacts or risks associated with this are not clear. n The advice of those promoting this approach is “start small”.

5. Negotiated self-government n Topics / jurisdictions an Aboriginal group can make decisions over, and how that power interacts with Federal and Provincial law-making power is negotiated with Federal and Provincial government, set out in an agreement. n This can happen in the context of land claim agreements: –NS-Fed-Mi’kmaq Tri-Partite negotiations –Mi’gmawei Mawiomi QC-Fed-Mi’gmaq negotiations

Summary – Where are we at today? n To a large extent, still in s. 91(24), Indian Act, delegated-jurisdiction model. n But even in that model, Chief and Council do more than just what is in Indian Act, and some legal recognition of this. n Section 35 cases recognize some form of self-government, though how big that power is remains unclear. n Some First Nations starting to exercise inherent right to self-govern incrementally ~ whether this will be recognized by Canadian law is unclear n Some First Nations are negotiating their self-governments with Federal and Provincial governments and having these set out in agreements.

Take 5 minutes to jot down some questions, comments, concerns you have based on what you learned in this presentation. Naiomi Metallic Burchells LLP 1801 Hollis Street, Suite 1800 Halifax, NS B3J 3N4 t f