The Third Order: Federalism and Indigenous Governance

• Author: Kathy L. Brock/Geoffrey Hale
• Pages: 137-152

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The Third Order: Federalism and

Indigenous Governance

Introduction

One of the most signif‌icant areas of change in the Canadian feder-

ation since Confederation has involved the recognition and accom-

modation of Indigenous governments and rights. is change has

come in f‌its and starts and is still occurring. e original conception

of Confederation provided no place for Indigenous governments

given that the Constitution Act,  was believed to assign all powers

exhaustively to the federal and provincial governments. Indigen-

ous peoples faced an uphill battle in challenging this theoretical

construct and obtaining recognition of their governments, cultures,

laws, and rights as pre-existing Confederation and thus as consti-

tuting a third order of government in the Canadian constitutional

system. is struggle for recognition and fair treatment continues,

providing new opportunities to modify and renew the constitu-

tional bargain and rectify the wrongs from the past.

is chapter provides a review of how Indigenous peoples have

challenged the Canadian federal system and how it has adapted to

become more inclusive and how it has a way to go to create bonds

of mutual respect and cooperation. It begins with a short discus-

sion of the Indigenous inf‌luence on the creation of federalism and

FEDERALISM IN CANADA

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then traces major developments in the recognition of an Indigenous

third order of government in Canada through constitutional nego-

tiation and judicial rulings. e chapter concludes with a discussion

of dierent ways of knowing and conceiving federalism in Canada

in a time of reconciliation. e key theme is that the Canadian fed-

eral system must evolve in response to challenges if it is to provide

meaningful representation and recognition to Indigenous peoples

within the Canadian federation.

“Indigenous” is a term used to include First Nations, Metis, and

Inuit peoples and nations. It has generally replaced the term “Aborig-

inal” in common parlance, as mentioned below. “First Nations” may

be used to refer to Indian peoples and their governments recognized

under the federal Indian Act but also may be used more generally to

include all people of Indian heritage regardless of whether they are

status Indians (recognized as members of Indian bands so desig-

nated under the Indian Act), non-status Indians (not recognized as

members of the bands), and urban Indians (living outside Indian Act

recognized reserves, temporarily or permanently). “Indian” is a legal

term based in the Indian Act. “Aboriginal” is a constitutional term

based in the Constitution Act, . Metis or Michif include people

who descended from First Nation and European unions, with histor-

ical Metis referring to these people who descended from recognized

Metis settlements in Manitoba and Saskatchewan. Inuit and Innu

peoples have lived in Northern Canada. While all of these peoples

and nations are often grouped under the nomenclature “Indigenous,”

they are all di stinct peoples with very dierent cultures, go vernment

systems, histories, and needs, albeit with some overlap at times.

Federalism: Something Borrowed, Something New

In , the American federation was not the only model of federal-

ism for the founders to contemplate as they fashioned the Canadian

Constitution. e League of the Haudensaunee (Iroquois) provided

a working example of a confederal system that had persevered over

centuries. e League was founded between  and   and