First Nations Governance Act: the inherent right to self government. What's in a name?

• Author: Fenwick, Fred R.
• Position: Aboriginal law

Every one seems to agree that the Indian Act is drastically out of date. The first version of the Act was in 1877. Hardly anything about the way we expect society to operate is the same since then. Political parties have changed, who gets to vote, what they get to vote about, what gets taxed, what sort of financial responsibility we expect from government. Everything.

The idea to bring the Indian Act into the 21st century is an idea whose time has come. So when the federal government announced in 2002 that they proposed the first round of such changes in the First Nations Governance Act, you'd think that everyone would be in favour. After all, the changes proposed--a leadership selection code, financial management and accountability code, and an administration code--would look very familiar to modern municipal or provincial governments.

However, First Nations leaders have been unanimous in condemning the Act. "This will leave a legacy of shame, a legacy of despair and a legacy of colonialism when we are all looking for a legacy of hope for our future generations," says Matthew Coon Come, former Grand Chief of the Assembly of First Nations. Strong stuff! But he is not alone. Amnesty International, the United, Anglican and Catholic Churches of Canada have all recommended against it. Just now, speculation is that the opposition to the Act has pushed it far back in the federal government agenda and that it may die on the order paper of the new Prime Minister's agenda. The opposition is instructive and shows very clearly one of the main disconnects between the First Nations and the government of the rest of Canada. And it mainly turns around "the inherent right to self-government".

This phrase is not found in any treaties nor have the courts defined it, but it has slipped into very general usage. The Royal Commission on Aboriginal People used the phrase to describe a new, third order of government which shares sovereignty with federal and provincial governments. The federal government has adopted the same phrase and has made it official policy:

"The Government of Canada recognizes the inherent right of self-government as an existing Aboriginal right under section 35 of the Constitution Act, 1982. It recognizes, as well, that the inherent right may find expression in treaties, and in the context of the Crown's relationship with treaty First Nations. Recognition of the inherent right is based on the view that the Aboriginal peoples of Canada have...