Aboriginal Self-Government Rights: Background and Emerging Issues

• Author: Stephen B. Smart and Jacqueline Code
• Profession: Partner, Osier, Hoskin & Harcourt, Toronto. Member of Law Society of Upper Canada/Associate, Osier, Hoskin & Harcourt, Toronto
• Pages: 93-134

Stephen

B.

Smart*

and

Jacqueline

Code**

A.

INTRODUCTION

This paper seeks

to

explore

the

background

to the

fascinating

and

time-

ly

issue

of

Aboriginal

self

government.

Is

self

government

an

inherent

right?

Is

self

government

an

Aboriginal right under section

35 of the

Constitution

Act, 19821

Will

negotiated agreements constitute

a

thir

order

of

government?

How

have Canadian courts dealt with

the

issue?

How

has the

issue

been handled politically?

This paper

is

written

as an

overview

to an

extremely complex issue.

The

paper

is not

meant

to be a

detailed examination

of the

many issues

at

hand,

nor is it

intended

to

present answers

to the

many

questions

that

are

emerging

as the

implications

of

Aboriginal self-government rights

begin

to be

understood. Rather,

it is

written

as an

introduction

to the

topic

of

Aboriginal

self

government

in

Canada. Although many issues

are

not

explored

in

detail,

it is

hoped that

the

reader will acquire

a

basic

understanding

of the

historical development

of the

issues

related

to

Aboriginal

self

government

in

Canada.

Partner,

Osier,

Hoskin

&

Harcourt,

Toronto. Member

of Law

Society

of

Upper

Canada.

Associate, Osier, Hoskin

&

Harcourt, Toronto. Member

of Law

Society

of

Upper Canada.

The

authors

of

this paper

are

also

grateful

for the

assistance

of

Stephanie

Ben-Ishai,

student-at-law.

93

Background

and

Emerging Issues

Self-Government

Rights:

Aboriginal

*

**

94

Stephen

B.

Smart

and

Jacqueline Code

B.

HISTORICAL

FOUNDATION

FOR

AN

INHERENT RIGHT

TO

SELF

GOVERNMENT

What

is

meant

by an

"inherent

right"

to

self

government? According

to

the

Royal

Commission

on

Aboriginal Peoples

(hereinafter

RCAP),

Aboriginal

people1

see

sovereignty

as an

inherent

human attribute that

cannot

be

surrendered

or

taken

away.2

Aboriginal people also

see

sover-

eignty

as

conferred

by the

Creator.3

In

other words,

it

flows

from

with-

in

a

people

or

nation,

and is not

conferred

by

external sources such

as

international

law,

the

common law,

or the

constitution.4

Many

Aboriginal

people maintain that their inherent rights

to

self

government

continue

to

exist

today,

and

that these rights have

now

been recognized

and

affirmed

under section

35 of the

Constitution

Act,

1982.5

Much

of the

history

of

Aboriginal

and

non-Aboriginal

relations

can be

interpreted

in

this light.

It is

also important

to

understand

this

history

in

order

to

understand

the

issues

facing

Aboriginal people

who

seek

to

assert

an

inherent right

to

self-government through negotiation with

the

Federal

and

provincial governments

and

through litigation.

1)

Pre-Contact Governance

The

starting point

for

this

historical

discussion

is the

period prior

to

contact

between Aboriginal peoples

and

European settlers. There

is a

1

Aboriginal people include those peoples

who are

referred

to as

Indian,

the

Inuit,

and the

Metis. Aboriginal people

do not

have

one

point

of

view,

and

political

aspirations, concepts

of

sovereignty,

and

perspectives

vary

from

group

to

group

and

individual

to

individual. However, this paper must neces-

sarily

use

generalizations

in

speaking

of

Aboriginal concepts

of

sovereignty

and

other aspects

of the

Aboriginal perspective.

2

Report

of

the

Royal Commission

on

Aboriginal Peoples

[hereinafter

RCAP

Report],

vol.

2, pt. 1

(Ottawa: Ministry

of

Supply

and

Services, 1996)

at

108. Note

the

discussion

in

this chapter

of the

RCAP

Report, which questions whether "sov-

ereignty"

is the

appropriate term

to

reflect

Aboriginal understandings

of the

concept.

The

term

is

used

in

this discussion

for

convenience only.

3

Ibid,

at

109.

4

Ibid,

at

110.

5

Constitution

Act,

1982,

being Schedule

B to the

Canada

Act,

1982

(U.K.),

1982,

c.

11.

Aboriginal

Self-Government

Rights:

Background

and

Emerging

Issues

95

growing body

of

academic writing

on the

forms

of

pre-contact gover-

nance.6

Some

of

this research

has

been

necessitated

by the

legal analyti-

cal

framework established

by the

Supreme Court

of

Canada

in the

context

of

claims under section

35 of the

Constitution

Act,

1982, dis-

cussed

in

more detail later

in

this paper. Among other

matters,

this

research indicates that

the

specific nature

of

Aboriginal self governance

prior

to

contact will likely vary considerably

from

group

to

group.

Equally,

there will

be

differing

degrees

to

which particular

groups

con-

tinue

to

exercise their traditional governance rights today.

Nonetheless,

statements

in

recent judicial decisions demonstrate

a

willingness,

at

least

in the

abstract,

by

courts

to

accept that Aboriginal people

not

only

occupied

the

lands

in

Canada,

but

were also organized into societies,

when European settlers

arrived.7

Furthermore, historical writings pres-

ent

compelling evidence that Aboriginal peoples

had

well-established

forms

of

government prior

to

contact with Europeans.

It

is

clear that these pre-contact

forms

of

governance were

affected

by

contact

with European settlers

and by the

gradual encroachment

of

set-

tlers

into Aboriginal territory.

The

precise

effect

of

contact with European

settlers

on the

exercise

of

Aboriginal

self

governance

is not

easily

resolved

and it

likely will

not be

resolved

from

a

legal perspective unless

and

until

a

court pronounces

on

this question

in the

context

of the

indi-

vidual

histories

of

Aboriginal groups. Nonetheless,

it has

been strongly

argued that

the

gradual advance

of

European settlement

has not

extin-

guished

the

rights

of

Aboriginal people

to

govern themselves.

In

fact,

there

is

evidence throughout history that demonstrates that

the

inherent

right

of

Aboriginal peoples

to

govern themselves

was

recognized

at an

early

stage. Although many attempts were made

to

assimilate Aborig-

inal

peoples into

non-Aboriginal

society

and to

erode their

social

organ-

izations, customs,

and

laws,

the

rights

of

Aboriginal people

to

govern

themselves have

not

been universally extinguished. Modern litigation

and

self-government negotiations

are

proceeding

on

this

footing.

6

For

example,

a

lengthy study

of the

pre-contact forms

of

governance exercised

by the

Chippewas

of the

Nawash

Band

is

contained

in J.

Borrows,

"A

Genealogy

of

Law:

Inherent

Sovereignty

and

First

Nations

Self-Government"

(1992)

30

Osgoode

Hall

L.J. 291.

See

also

M.D. Walters,

"According

to the Old

Customs

of our

Nation: Aboriginal Self-Government

on the

Credit River

Mississauga Reserve,

1926-1947"

(1998-1999)

30

Ottawa

L.

Rev.

1,

which dis-

cusses

both

pre-

and

post-contact governance

issues.

7

See,

for

example,

R. v.

Sparrow

(1990),

70

D.L.R.

(4th)

385 at 398

(S.C.C.). [here-

inafter

Sparrow].