The Third Order: Federalism and Indigenous Governance

AuthorKathy L. Brock/Geoffrey Hale
 
The Third Order: Federalism and
Indigenous Governance
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
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

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