Area of Law: Indigenous / Aboriginal Law
Answer # 0662
Self-governmentRegion: Ontario Answer # 0662
The following information has been provided with the assistance of Lakehead University Faculty of Law, Aboriginal Law Studies.
Crown-Indigenous Relations and Northern Affairs Canada states that,
“Indigenous peoples practiced their own forms of government for thousands of years before the arrival of European and other settlers in what is today Canada. These forms of government reflected the economic, social and geographic diversity of Indigenous peoples, as well as their cultural practices and spiritual beliefs.
Early partnerships between colonial governments with Indigenous nations were forged through treaties, trade and military alliances.”
Over hundreds of years, agreements between the First Nations and the colonial governments have gradually continued to be destroyed. Laws and decisions were created which gave more and more land and power to colonial governments. Such laws include the Indian Act, 1876, which continues to decide how most First Nations in Canada are governed to this day. Under the Indian Act the federal Minister has authority over First Nations.
As with other countries today, Canada has embarked on a path of reconciliation to revitalize the relationship between Indigenous and non-Indigenous peoples. The United Nations Declaration on the Rights of Indigenous Peoples has recognized the fundamental right of self-determination of Indigenous Peoples. It follows, therefore, that the Indigenous Peoples must have the power of self-government to exercise that right. In light of this, negotiations between the Canadian government and the First Nations are being conducted with the purpose of facilitating the transition away from the Indian Act to self-government for First Nations.
Status Indians and the Indian Act
Self-government allows Indigenous Peoples, who are currently governed by the Indian Act, out from under its provisions , allowing them the ability to do things, such as elect a Chief and Council to make decisions on their behalf and pass by-laws in areas specified in the Indian Act.
Self-governing Indigenous Peoples make their own laws and policies as defined by the powers specified in their negotiated self-government agreement with the Crown. This is often in respect of a range of matters that are wider in scope than what is permitted by the Indian Act.
Indigenous Peoples’ inherent right of self-government guaranteed is also set out in section 35 of the Constitution Act, 1982. Canada’s Inherent Right Policy was first launched in 1995 to guide self-government negotiations with Indigenous communities. These self-government negotiations give decision-making power back into the hands of Indigenous governments with respect to how to deliver programs and services to their communities.
Self-government negotiations can touch on areas including, but not limited to:
- Social and Economic Development
For a negotiated self-government agreement to become a law that can be enforced, it must be:
- Approved by the concerned Indigenous group through a community ratification vote, and
- passed at the federal level.
Conflict of Laws
These negotiated self-government agreements are intended to allow Indigenous laws to be able to operate in conjunction with federal and provincial laws. If a conflict of laws arises, Indigenous laws protecting culture and language take priority, unless it is an issue that falls within the Canadian Charter of Rights and Freedoms, the Canadian Human Rights Act, and other general laws like the Criminal Code of Canada, which aim to protect basic rights and safety.
For information on Aboriginal and Indigenous laws, visit the Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) website. For further resources, check our Aboriginal Law links.
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