Beyond Section 35 Symposium Discussion Paper November 5, 2012

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!"#$%&'()*(+($,-. The Institute on Governance (IOG) is an independent, Canada-based, not-for-profit public interest institution with extensive experience in exploring and developing approaches to responsible and responsive governance in Canada and abroad. The Institute’s goal is to promote and share good practices, and offer solutions and continuous improvements in the capacity of organizations to deliver on their mission. We do this through our advisory services, original research and learning laboratory. We operate an Indigenous Governance practice encompassing each of these areas. For us, governance is concerned with governance frameworks and strategies, how decisions important to a society or an organization are taken, and how accountability is managed. We believe that in order to resolve issues that are impediments to the development of Indigenous communities, it is important that communities define their own governance agendas so that they can have a more authoritative voice when engaging with others such as stakeholders from all areas of government, communities and organizations to discuss authority and jurisdiction and the creation of corresponding institutions and governance structures to support self-government. An Indigenous Advisory Circle guides our Indigenous governance practice. The Advisory Circle is comprised of: Miles Richardson (Co-Chair), Senior Associate, Institute on Governance Scott Serson (Co-Chair), Former Deputy Minister, Aboriginal Affairs & Northern Development John G. Paul, Executive Director, Atlantic Policy Congress of First Nations Chiefs Gina Wilson, Assistant Deputy Minister, Public Safety Canada Ryan Robb, Chief Executive Officer, Treaty 7 Management Corporation Vera Pawis-Tabobondung, President, National Association of Friendship Centres Bob Watts, Adjunct Professor and Fellow, Queens University, School of Policy Studies Richard Jock, Chief Executive Officer of the Assembly of First Nations Madeleine Redfern, Former Mayor of Iqaluit. The IOG would like to thank the members of the Advisory Circle for guidance and insight regarding the Indigenous governance practice undertaken by the Institute on Governance in terms of its content, approach, partnerships and most importantly, strategic vision for making a positive contribution to public policy on key Indigenous issues in Canada. Their participation in the conceptualization and execution of the Beyond Section 35 Symposium was invaluable.

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/$,0%)1",2%$. The year 2012 presents a milestone in Canadian history, marking three decades since the affirmation of existing Aboriginal and treaty rights in Section 35 of the Constitution Act. Section 35 states:

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, “Aboriginal peoples of Canada” includes the Indian, Inuit, and Métis peoples of Canada. (3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.1

Since the adoption of this recognition into the Constitution Act, 1982 there has been significant effort to define the extent of Aboriginal rights and title through Supreme Court litigation and government policy developments. This creates an opportunity to consider the substantial impact that recognition has had on altering both federal/provincial law and policy regarding Indigenous Peoples and Indigenous governance in Canadian society. Many Indigenous groups have already, or are currently, engaged in strengthening their own governance structures and exercising greater control over traditional land and resources. However, few would dispute that the full potential for a changed relationship with Canada created by Section 35 has not yet been realized. The facilitation and implementation of more robust forms of Indigenous governance have been very slow in coming. The contemporary dynamics of legal, political, economic and social power place non-Indigenous governments in an advantageous position relative to Indigenous governments. There have been several impediments to progress and nation building, namely negotiations have stalled and many important Indigenous organizations and institutions have closed doors or suffered significantly from loss of funding. Citizen cynicism and the lack of engagement in current governance models and practices add to these challenges. Technology and expectations towards greater transparency and accountability all put additional pressures on structures of the day. Even in the case where capacity exists, for those involved in self-government negotiations, there remains a need to negotiate jurisdiction and authority away from those currently occupying that space. Therefore, unburdening Indigenous governance from the current legislative and jurisdictional constrictions and obstacles will continue to be a great challenge.

1 Constitution Act supra note 1. It is important to note that s.35 was not the only “aboriginal”-specific section entrenched within the constitution in 1982. Section 25 of the Charter protects aboriginal, treaty, and other rights and freedoms of aboriginal people from abrogation or derogation by other Charter rights and freedoms. Inclusion of this protection within the CRF means that it is subject to “reasonable limits” as per section one. Effectively this means aboriginal, treaty, and other rights as protected under the Charter are not absolute. On the other hand, s.35 of the Constitution Act, 1982 protects aboriginal and treaty rights outside of the CRF. Therefore, s.35 was intended not to be limited by section 1, nor subject to Section 33, the “notwithstanding clause” which permits Parliament and the provincial legislatures the power to override certain CRF provisions. Ultimately, s.35 was incorporated to provide greater protection to “aboriginal” and treaty rights. The significance of this protection should not be overlooked.

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3104%-(.%5.,62-.374(0. While past discussions on Section 35 have centered on legal applications, the upcoming Beyond Section 35 Symposium will move beyond legal implications to where the research lags – the practical hallmarks of self-government and implementation. This discussion paper is meant to help facilitate these discussions by describing the intent in the making of Section 35, what has transpired to forward the “Inherent Rights” agenda in the realm of governance and self-government, and the next steps to moving forward with an agenda for applied governance research that will directly affect and support the parties. The Beyond Section 35 Symposium will bring together key stakeholders from Indigenous communities and institutions, practitioners, public sector and academia to discuss and reflect upon the impact of the constitutional recognition of Section 35 on the lives and relations of Indigenous Peoples in Canada. The emphasis of the meeting will be placed on Indigenous communities and institutions in the determination of governance structures and service delivery models tailored to the needs of Indigenous Peoples. This constructive dialogue will shape an applied research agenda, led by Indigenous experts in partnership with the Institute, to address the key challenges in achieving more fully realized authorities and jurisdictional control. Finally, the emerging applied research agenda will look at processes of how successful exercise of jurisdiction and authority can be achieved, and then implemented to ensure better service outcomes for Indigenous citizens. Our goal is to assist Indigenous governments to meet their governance aspirations in a manner that reflects their timing, capacity, priorities, and socio-economic realities within the context of the Canadian federation. The IOG’s Governance Continuum can be a key research tool in understanding the transfer of power to Indigenous governments in matters of jurisdictional autonomy and decision-making. This will complement and build on the wealth of existing best practices that are already being exercised by Indigenous governments in Canada.

86(.97#2$*.%5.:(",2%$.;<. The Constitution Act, 1867, which created a two-tiered governmental structure between the federal and provincial governments, placed Indigenous communities under the legislative authority of the federal government via Section 91 (24). When discussions concerning the re-patriation of the constitution began gaining momentum in the late 1970s, First Nation, Métis and Inuit representatives saw an opportunity to re-vitalize the relationship between Indigenous communities and the Canadian state. There was also a great sense of urgency attached to Indigenous responses. In 1978, Prime Minister Trudeau had introduced his plan to unilaterally entrench a charter of rights and freedoms within the Constitution. First Nation leaders feared such a charter (not having any provisions for aboriginal rights) would have greater force in the courts than the Indian Act2 and would, therefore, put an end to the status of Indigenous people in

2 An Act Respecting Indians, R.S.C. 1985, c.1-5. (Canada)

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Canada.3 Furthermore, there was no discussion of constitutional protection for Aboriginal rights during this period. Although Indigenous representatives were invited to First Ministers’ Meetings from 1978 to 1980, their status was that of official observers. This meant that Indigenous leaders were neither full participants nor were they allowed to observe all sessions of the meetings. Since Indigenous people did not feel included in constitutional processes, they presented a potential threat to constitutional reform if left excluded. They held parallel meetings and resisted the domestication of their rights through advocacy in the United Kingdom. Their initiative was successful as a number of British government members and Lords agreed to support their cause.4 This led Prime Minister Clark to promise Indigenous full participation within constitutional discussions that concerned Indigenous peoples. By 1980, Prime Minister Trudeau was in power again. While his government had initially confirmed the previous government’s promise, he changed his position after consulting with premiers.5 Indigenous representatives, he stated, would be consulted after patriation regarding the government’s “Canada’s Native Peoples and the Constitution” agenda item.6 Many Indigenous leaders, while divided on the issue, felt that consultation after patriation was an empty promise. The federal shift led to George Manuel and nine British Columbia Chiefs initiating a legal suit in an effort to ensure that patriation would not occur without the consent of First Nations.7 Additionally, Indigenous groups organized and actively protested for meaningful participation in the constitutional processes prior to patriation. Initially, it appeared as though this strategy had been successful. The government had agreed that the Indian Act would be exempt from protection under the Charter of Rights and Freedoms8, and that aboriginal rights would be recognized in the body of the constitution. The exact definition of aboriginal rights, the government insisted, would be defined through a series of conferences held, with Indigenous representatives, after patriation.9 Some indigenous leaders, in particular George Manuel, denounced this approach calling section 35 an “empty box”, arguing that it would still be the federal government and the Premiers that would have the final say in defining aboriginal rights within the constitution and so they continued their advocacy work both nationally and internationally.10 Based on the attention and support that Manuel’s movement had gained, both nationally and internationally, the federal government soon realized excluding aboriginal rights was not an option. Not only was the federal New Democratic Party threatening to vote against the patriation resolution, there was 3 Peter McFarlane. “The Peoples’ Movement.” Brotherhood to Nationhood. George Manuel and the Making of the Modern Indian Movement. Toronto: Between the Lines, 1993. 247-63. p.253. 4 Ibid. 5 Provincial premiers feared that a guarantee of aboriginal rights within the constitution would limit provincial control over lands and resources. McFarlane. p.267 6 Ibid. **Emphasis added. 7 Ibid. at p.268 8 Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 [Charter]. From here on this document with be referred to as the CRF and Charter interchangeably. 9 McFarlane. p.281 This agreement was reached through the collective efforts of Jean Chrétien, Del Riley of the National Indian Brotherhood, Harry Daniels of the Native Council of Canada, and Charlie Watt of the Inuit Tapirisat. 10 McFarlane. p.281

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word that patriation without aboriginal rights protection would likely be refused by Great Britain.11 In the fall of 1981, following a series of failed negotiations with the provinces as well as a decision by the Supreme Court on a reference brought by the federal government, the Prime Minister convened a round of negotiations to attempt once more to gain provincial support for patriation. On November 5, 1981, following the so-called “meeting of the long knives”, the federal government announced it had reached agreement with the nine Anglophone provinces and it would now patriate the constitution. Aboriginal leaders discovered that the Aboriginal rights provision had been dropped as part of the deal to get provincial support. Aboriginal leaders acted instantly, 500 leaders gathered in Ottawa to work out plans for reinstatement of the provision. An ad hoc Aboriginal Rights Coalition mapped out strategies for protests, lobbying and negotiations with each of the nine Premiers. All Premiers eventually agreed to reinstatement with the exception of Peter Lougheed of Alberta. Following days of negotiations with a small team of Aboriginal negotiators, Lougheed agreed to reinstatement provided the word “existing” was added to the provision. The federal government agreed, as did the other Premiers. Additionally, Charter protection was given to the Royal Proclamation, 176312 under Section 25, and s.35.1 guaranteed that conferences would be held with aboriginal delegates before any constitutional amendment was made that concerned aboriginal and treaty rights. By 1982, existing aboriginal and treaty rights - while yet to be substantively defined - were protected within the Constitution. Constitutional drafters purposively left the wording of s.35 vague as it was in the interest of the government to give these rights as small a scope as possible.13 While the constitutional conferences that followed patriation were largely unsuccessful in giving further definition to the section’s wording, subsections 3 and 4 were added for greater clarification. It would, however, not be until the section was interpreted judicially that a more definitive understanding of s.35’s weight and role in Canadian politics would be gained.

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:(",2%$.;?.%5.,6(.@%$-,2,1,2%$.!",A.BCDE.Section 37 of the Constitution Act, 1982 obligated the Prime Minister of Canada and the First Ministers of the provinces to convene a constitutional conference within a year of its entry into force. Section 37(2) required the inclusion of an agenda item to deal specifically with “constitutional matters that directly affect[ed] the aboriginal peoples of Canada, including the identification and definition of the rights of those peoples to be included in the Constitution of Canada.” The Prime Minister was obligated to invite “representatives of [the Aboriginal] peoples to participate in the discussions on that item.”14

11 Peter McFarlane. “European Express.” Brotherhood to Nationhood. George Manuel and the Making of the Modern Indian Movement. Toronto: Between the Lines, 1993. 285-302. p.292-3 12 Royal Proclamation 1763 (U.K.), reprinted R.S.C. 1985, App.II, No.1 13 David C. Nahwegahbow and Nicole D.O. Richmond. “Impact of the 1982 Constitution on First Nations: Reflections on Section 35: Whether the Constitution Act has made a difference for First Nations?” National Journal of Constitutional Law 23. (2007/2008): 153-171. p.165 14 Constitutional Conference, Part IV of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (U.K.), 1982.

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The First Ministers Conferences on Aboriginal Constitutional Matters were successively held in March 1983 and 1984. The first constitutional conference in 1983 mandated under section 37, produced amendments to Sections 35 and 25 of the Constitution Act, 1982. As a result of the negotiations and agreement during these conferences, subsections 35(3) and (4), 25(b) and 37.1(1) were added to the Constitutional Act, 1982 by the Constitution Amendment Proclamation, 1983. These amendments provided some lucidity to the vague language of Section 35 and highlighted the demonstrated efforts of the Aboriginal negotiators to clarify this ambiguity. The 1983 conference also led to a second amendment, which replaced the now extinguished Section 37 with a new Section 37.1.15 This section called for “at least two” additional First Minister’s conferences to be convened in order to continue the discussions on “constitutional matters that directly affected aboriginal peoples of Canada.” As with the older Section 37 provision, the Prime Minister was obligated to invite the “representatives of the Aboriginal peoples” to the conferences. Two more conferences were then held in 1985 and 1987, where attending parties attempted to agree on language that would expressly recognize a right of aboriginal self-government.16 However, the discussions failed to produce any substantive result, as the representatives were unable to reach an agreement. Following the convening of the March 1987 conference, Section 37.1 was repealed on April 18, 1987 by Section 54.1 of the Constitution Act.

F2G(.H7$)+70#.I("2-2%$-J.K2G2$*.K0(7,(0.I(52$2,2%$.,%.-L;<"#.As previously stated, Section 35 of the Constitution Act, 1982 gives constitutional protection to “the existing aboriginal and treaty rights of the aboriginal peoples of Canada.” Despite this recognition; however, questions still remained about the nature of Aboriginal rights. For example, what is the nature and content of those rights that are “recognized and affirmed”? What rights are said to be “existing”? Without some clarification on what these rights entailed, s. 35 can be said to be an “empty box.” As a result, much of the first cases heard by the Canadian courts on Section 35 rights dealt with establishing tests to determine the content and existence of these rights. These legal tests, in turn, have greatly influenced policy making within the areas of Aboriginal rights and title. The five case summaries that follow offer key insights into the Supreme Court’s direction in this regard.

R. v. Sparrow, [1990]: In R. v. Sparrow18, a Musqueam Band member, Ronald Edward Sparrow, was charged with violating the federal Fisheries Act. Sparrow argued that he was exercising his ‘existing’ aboriginal right to fish under s.35(1). The Supreme Court’s decision led to the establishment of the original four-part test for determining the existence of an aboriginal right.

R v. Van der Peet, [1996]: :In R v. Van der Peet19, a member of the Stó: l! Nation was charged

with illegally selling fish that had been lawfully caught under a food-fishing license. The appellant challenged the charges by arguing that her right to sell fish was protected under s.35.

15 Constitutional Conference, Part V of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (U.K.), 1983. 16 Eberts, McIvor and Nahanee, Supra note 26. 17 For a more comprehensive examination of the four cases, refer to Appendix A. 18 R. v. Sparrow [1990] 1 S.C.R. 1075 19 R. v. Van der Peet [1996] 2 S.C.R. 507.

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This led the Supreme Court to expand upon the original Sparrow Test, establishing a two-part sub-framework under Part 1 of the Test for determining the existence of an aboriginal right. The Court’s decision has been interpreted as severely narrowing the aboriginal rights as protected in the constitution.

Delgamuukw v. British Columbia, [1997]: In Delgamuukw v. British Columbia20, the Gitksan

and Wet’suwet’en National Chiefs claimed ownership and legal jurisdiction over what they declared were traditional territories in northwestern British Columbia. At the provincial level, the court ruled against the plaintiff’s case. However, at the federal level, instead of taking a definitive stance on land rights, the Supreme Court commenced a new trial based on the earlier Van der Peet decision. This led to the establishment of a continuum to classify aboriginal rights in respect to their connection to the land, with the highest classification being aboriginal title that allotted a direct right to land and the lowest being site-specific or practice and custom-based rights.

R. v. Powley, [2003]: R. v. Powley,21 was the first major Aboriginal rights case concerning Métis

peoples. This decision resulted in the Powley Test, which lays out a set of criteria that can be used to define Métis rights, and establish who is entitled to those rights. Although this decision defined Métis rights as they relate to hunting, many legal experts and Métis leaders view this case as instrumental in the future of recognizing Métis rights. Like Sparrow, many believe this case has the potential to expand into an ever bigger rights discourse – for example, the Métis right to self-government and self-determination. That said, aspects of the Powley decision are not widely accepted; there is currently a similar case in Alberta before the Court of Appeals. Agreements such as the recent 2012 Métis Harvesting Agreement in Manitoba and the issue of land rights currently before the Supreme Court will be equally important in the definition and exercise of Métis rights moving forward.

Haida Nation v. British Columbia (Minister of Forests), [2004]: In Haida Nation v. British

Columbia22, the Haida Nation claimed that the province had failed to meaningfully consult their nation before beginning forestry activities on lands to which the Nation claimed aboriginal title. Though the title had not been legally recognized, the Supreme Court ruled that there was a duty to consult aboriginal groups prior to exploiting lands to which they might have claim regardless of whether a title had been proven or not. Contemporary Canadian jurisprudence has only more recently begun to address the issue of Aboriginal rights to self-government. The cases of R. v. Pamajewon23 and Deglamuukw v. British Columbia24 provide an indication of the court’s current interpretation of Indigenous governance rights. However, it must be noted that the current case law on governance has drawn some criticism from Indigenous peoples who have argued that it defines Aboriginal governance in a narrower manner than the rights they are advocating for. On appeal to the Supreme Court of Canada, in R. v. Pamajewon, the Eagle Lake First Nation unsuccessfully argued that it possessed an Aboriginal right to manage its economic affairs on its 20 Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010. 21 R. v. Powley, [2003] 2 S.C.R. 207, 2003 SCC 43. 22 Haida Nation v. British Columbia (Minister of Forests) [2004] 3 S.C.R. 511. 23 R. v. Pamajewon [1996] S.C.J. No. 20, [1996] 2 S.C.R. 821. 24 Delgamuukw supra note 24.

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reserve land free of federal and provincial interference. According to Chief Justice Lamer, “[a]ssuming that s. 35(1) encompasses claims to self-government, such claims must be considered against the test derived from consideration of those purposes.”25 At the time of the decision, the test for determining the content of an Aboriginal right was that found in R. v. Van der Peet, which defined an Aboriginal right as an element of a custom, practice, or tradition integral to the distinctive culture of an Aboriginal nation. Thus, the Court rejected the First Nation’s characterization of its right as a broad right to manage the use of its reserve lands, characterizing the claim instead as a narrow right to participate in and regulate high stakes gambling on the reserve. In finding against the Eagle Lake First Nation, the Court found that the right did not relate to a “custom, practice, or tradition integral to the distinctive culture” of the First Nation at the time of contact. This decision, however, should be read in light of the Courts subsequent decisions in Delgamuukw and Haida Nation. The court in Delgamuukw held that errors of the trial judge made it “impossible … to determine whether the claim to self-government has been made out.”26 Nonetheless, it also held that Aboriginal title confers an exclusive right to use and occupy land for a variety of activities that need not relate to customs, practices, or traditions integral to the distinctive culture of the Indigenous people in question. Further, it held that “the same legal principles governed the aboriginal interest in reserve lands and lands held pursuant to aboriginal title.”27 This seems to suggest that Delgamuukw contemplates the very possibility that Pamajewon sought to dismiss: First Nations successfully asserting a broad Aboriginal right to regulate and engage in economic activity on reserve lands unrelated to traditional patterns of territorial use and enjoyment.28 When viewed together, an argument could be made that the Canadian Constitution recognizes and affirms an inherent Aboriginal right of self-government – specifically, a right to make laws in relation to customs, practices, and traditions integral to the distinctive culture of the Aboriginal nation and in relation to the use of reserve lands and lands subject to Aboriginal title.29

:625,-.2$.3%'2"M.7$).307",2"(.The policy changes and national dialogues stemming from section 35 recognition have been quite considerable. There have been ongoing shifts in both philosophy and practice, and while not fully fleshed out in this paper are important reference points. In short these include:

• Penner Report on constitutional entrenchment of principle of self-government (1983); • Bill C-31 (1985); • Meech Lake Accord negotiations (1987); • Métis Settlements Accord (1990); • Indian Specific Claims Commission (1991); • Charlottetown Accord (1992); • Creation of Inuit public government and Nunavut claim (1993); • Royal Commission on Aboriginal Peoples (1991-1996); and • Gathering Strength: Canada’s Aboriginal Action Plan (1998).

25 Pamajewon supra note 26 at 832. 26 Delgamuukw supra note 24 at 1114. 27 Ibid. at 1085. 28 P. Macklem, Indigenous Difference and the Constitution of Canada (Toronto: University of Toronto Press, 2001) at 174. 29 Ibid.

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And we cannot forget the attempts in 1992 to establish further constitutional change through The Charlottetown Accord. Following the failure of the Meech Lake Accord in 1990, the negotiation of the Charlottetown Accord in 1992 was a second attempt made by federal/provincial/ territorial (F/P/T) governments and Aboriginal representatives to amend the Constitution of Canada. It dealt with a number of constitutional issues, aiming to resolve long-standing disputes around the division of powers between F/P/T jurisdictions. The Accord was also to address the issue of Aboriginal self-government and formally institutionalize the F/P/T consultation process allowing for Aboriginal inclusion. The ratification process for the Accord provided for a national referendum that gave Aboriginal political organizations the opportunity to campaign for their constituencies on a common proposal. However, despite having the support of major political parties in Canada, the Charlottetown Accord failed to pass in a national referendum (Quebec held its own referendum). Despite its failure, the Charlottetown Accord brought important considerations regarding Aboriginal-Crown relations back into active public discourse. In conjunction with legislative and policy landmarks, was the ongoing transformation of roles and responsibilities between the federal government and Aboriginal peoples. For example, Gathering Strength in 1998 was one of the first government statements recognizing the need to address the issues of Métis and off-reserve Aboriginal peoples. At the same time, Indigenous organizations at the national and regional level were in a process of both renewal and increasing their capacity in both political advocacy and policy development. For example, “the Métis, who focus[ed] on developing their own political structures and gaining public and political representation over the period are [only now] on the verge of having judicial view on their legal rights illuminated”30.

86(./$6(0($,.N2*6,J.3%'2"M.O.:('5PK%G(0$+($,.Q(*%,27,2%$-.This brings us to the federal policy recognition of the inherent right to self-government. In 1995, the federal government established the Inherent Right Policy that provided recognition of an inherent right to self-government for Indigenous people as derived from s.35.31 This policy re-affirms the federal government’s commitment to negotiate self-government arrangements outside of litigation. It establishes that this inherent right exists within the framework of the current Canadian Constitution, and that the right to self-government “does not include a right to sovereignty in an international law sense.”32 This means that any modern agreements must provide room for the Charter, and ensure the harmonization of laws in specific areas, while leaving other areas of a general, internal nature to Aboriginal jurisdiction. The policy recognizes four main types of self-government arrangements:

• Stand-Alone Self-Government Agreements;

30 Abele, Francis, Katherine Graham, and Allan Maslove. “Negotiating Canada: Changes in Aboriginal Policy over the Last Thirty Years.” In How Ottawa Spends 1999- 2000: Shape Shifting: Canadian Governance Towards the 21st Century. Edited by Leslie Pal. Don Mills: Oxford University Press, 1999. p 285 31 Canada. Aboriginal Affairs and Northern Development Canada. General Briefing Note on Canada’s Self-Government and Land Claims Policies and the Status of Negotiations. Ottawa: GPO, 2012 32 “The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government.” Department of Indian and Northern Affairs Canada. 15 Sept. 2010. Web. 8 Aug. 2012.

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• Incremental Agreements (includes governance arrangement for additional jurisdictions); • Claims-Related Self-Government Arrangements (negotiated in concert with land claims

agreement); • Public Government Agreements (public self-governance arrangements).33

To date, the progress stemming from the self-government Inherent Right negotiation process has not been as comprehensive as anticipated by the policy, and therefore the social and economic opportunities foreseen as emerging from the agreements have not fully materialized. This also raises the question as to why progress has not matched expectations, and leads us to look at what has actually been successful and why. Examples of landmark agreements under each category, specifically the Mi’kmaq Education Agreement, Nunavut, Nisga’a and Westbank are summarized in Appendix B and offer valuable insight into precedents that can assist forward movements more broadly. As recently as September 2012, the Minister of Aboriginal Affairs and Northern Development announced plans to work with stakeholders on a new approach to treaty and self-government negotiations by focusing energies and resources on those negotiating tables with the greatest potential for success. The new “results-based approach” is premised on the recognition that "Negotiated agreements help to strengthen Aboriginal communities, creating new business, investment and job opportunities. We will work with willing partners to achieve more treaties in less time so that Aboriginal communities can begin to unlock these economic opportunities.34"

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F20-,.Q7,2%$-.F2-"7'.7$).:,7,2-,2"7'.97$7*(+($,.!",.RF:9!S.In addition to negotiated agreements, there have also been efforts to implement a variety of institutional governance arrangements. For example, the First Nations Fiscal and Statistical Management Act (FSMA) was entered into force on April 1, 2006. The Act was developed to address economic development and fiscal issues on-reserve so as to improve certainty, confidence and infrastructure for participating First Nations, taxpayers and investors. It created the legislative framework to establish four national institutions:

• The First Nations Tax Commission (FNTC), a shared-governance corporation that regulates and streamlines the approval of property tax and new local revenue laws of participating First Nations, builds administrative capacity through sample laws and accredited training, and reconciles First Nation government and taxpayer interests.

• The First Nations Financial Management Board (FNMB), a shared-governance corporation that assists all First Nations in strengthening their local financial management regimes and provides independent certification to support borrowing from First Nations Finance Authority and for First Nation economic development.

• The First Nations Finance Authority (FNFA), a non-profit corporation that permits qualifying First Nations to work co-operatively in raising long-term private capital at

33 Canada, supra note 1. 34 http://www.aadnc-aandc.gc.ca/eng/1346781914593/1346782141075

12

preferred rates through the issuance of debentures, and also provides investment services to First Nations and First Nation organizations.

• The First Nations Statistical Institute (FNSI), an autonomous First Nations-led Crown corporation established to increase the quality and accessibility of First Nations statistics to improve planning, decision-making, and investment for all First Nations as well as federal, provincial, and territorial governments. In March 2012 the federal government determined to eliminate all funding for this institute by the 2013-2014 fiscal year.

The National Centre for First Nations Governance, while not part of the aforementioned Act, was also created in the same timeframe to offer a variety of services and activities to support individual First Nations in their pursuit of self-governance. The Centre provides governance tools, sample best practice and case studies as examples of strategies, techniques, procedures, and processes for producing efficient governance. In 2012, federal funding provided to the Centre was cut, while the Centre’s policy is to continue its services “for as long as it is able”35

@%$-1',7,2%$.O.!""%++%)7,2%$.Finally, since the Supreme Court Ruling on Haida in 2004, the efforts of Indigenous, Provincial and Federal governments has somewhat shifted from focusing on broader self-government initiatives and improved Indigenous governance to developing appropriate and effective methods to meet the obligations affirmed through Section 35 to consult and accommodate. Previous efforts to address Aboriginal and treaty rights on a comprehensive basis have in part been eclipsed by individual and site-specific consultation initiatives of a much more narrow scope. Many federal and provincial jurisdictions have now finalized policies that specifically address best practices and policies in this regard.

T(M%$).:(",2%$.;<J.=6(0(.-6%1').&(.*%.50%+.U(0(>.. As a result of this complex array of negotiating venues and policy frames, the situation most Indigenous communities face today is the pressure to amend their governance structures, but, unfortunately, often in a piecemeal fashion and in reaction to emerging challenges or opportunities. For example, a First Nation living in an area of rapidly developing resource projects needs to accelerate consultation and accommodation processes to take advantage of opportunities. Thus, responses are often not built on strong, planned or well-considered self-governance. Similarly, opportunities regarding new funding arrangements for infrastructure or the management of collective economic ventures require the rapid acquisition of specific administrative competencies that are often contracted out to experts, rather than the building community skills. On both the regional and treaty group basis, there are many initiatives underway with provinces and the federal government to significantly increase self-government over key social programming to improve outcomes in health and education for this and future generations of citizens. Clearly for the vast majority, actual implementation of the changes to their governance structures will be accomplished piece by piece and not as part of a comprehensive initiative. A comprehensive governance transformation, such as the coming into force of the Nisga’a Lisims 35 “News: ‘For as long as we are able’ Support inspires NCNFG Staff to Continue Delivering Services.” National Centre for First Nations Governance. National Centre for First Nations Governance, n.d. Web. 30 July 2012.

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Government, will be the exception and not the rule. Therefore, while there are strong advantages to a comprehensive approach to reforming governance practices, most communities will move in a much more incremental, reactive approach to change. Some of these issues to be addressed are outlined below.

I("2-2%$P97#2$*.30%"(--(-.As the previous section has demonstrated, in recent years Indigenous communities and groups in Canada have moved to take greater control over their lives and futures. Government policies have become more enabling than prescriptive of local decision-making and control. For example, First Nation governments have increasingly become the decision-makers on-reserve as the federal government has largely withdrawn from administration in the day-to-day lives of their citizens. The First Nation executive and administrative governing arms operate in a complex legal framework that includes a broad range of challenges and accountabilities. However, while it is one thing to make decisions, it is another to govern effectively. First Nation governments need to take the opportunity to reflect on what forms of governance best suit their needs, determine what needs to be done and establish their own governing frameworks in support of the First Nation’s goals, including appropriate redress mechanisms such as tribal courts or other mechanisms to resolve internal disputes and address conflicts. Achieving self-governance goals depends on capable administration. While some communities may be able to achieve this quite easily, others may have difficulty organizing effective administrations or establishing good management practices. For most First Nations, operating under the long-standing application of the Indian Act has been an impediment to the creation of their own governance structures. For the Inuit in Nunavut, this may simply be a matter of reconciling a decentralized governance system with localized administrations that are vast distances apart and have varying capacities and infrastructure. As Métis governance structures evolve, efficiency and effectiveness will be tied to greater legal authorities and predictable financing that will enable them to fulfil the needs of their constituents. Some Indigenous groups in Canada have taken over administrative and service provision functions without efficient critical mass to ensure that the various pieces of their growing government structure will work in harmony, or do not lead to overly bureaucratic, under resourced governments, with little coordination among functional areas. A key governance issue is the need to separate politics and administration, which is a difficult issue with current electoral cycles and in small communities. Politically sensitive but administratively neutral government administration is important to ensure that elected members are supported objectively, that there is a smooth transition after elections where citizens continue to receive services, and that principles such as equal and fair access to services or employment, openness of decision-making and neutrality of supporting administration without political interference or micromanagement in administration functions are foundational principles. How can Indigenous governments avoid some of these problems, improve their own administrative performance and better serve their people?

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/$-,2,1,2%$7'.:,01",10(-.Institutions exist to serve the delivery of programs and services that move Indigenous communities toward their strategic visions. As research by the Harvard Project has illustrated, to be successful, governing institutions have to have legitimacy with their people. This means that the citizens have to view those institutions as appropriate for them. One of the sources of legitimacy is cultural match: “a fit between the formal institutions of governance and the underlying political culture of the society being governed.”36 The Harvard Project also found another key factor for the success of Tribes in the United States is the exercise of sovereignty, or, de facto sovereignty. Results-based organizations are imperative for any governing body to measure the effectiveness of its governance. In measuring the effectiveness of Indigenous governance, a key result would be the extent to which the structures have moved the body toward its strategic vision. However, for decades Indigenous communities have functioned within organizational structures driven not by their vision, but by federally imposed structures and funding regimes. Therefore, it is a fair question to explore whether Indigenous institutions have been developed to serve the needs and interests of the Canadian government or Indigenous governments and their electorates. The effect may be that the citizens have no authentic connection to the resulting systems and structures of governance. Although it takes time to design and create sound institutional structures that can help achieve the visions of these communities, there may be ways to draw on governance best practices elsewhere to expand awareness of options and alternatives and help communities move more quickly towards their goals.

@747"2,M.Sufficient and appropriate resources are essential for institutions and communities to achieve and sustain their vision. When institutions fall short of what they set out to do, trust is lost, and their legitimacy is oftentimes called into questions. Thus, institutions are most effective when they are suitably resourced for the activities they are mandated to conduct. Indigenous people can only achieve effective governance with the “right” human, financial, structure and process capacity in place, coupled with clear political buy-in and community support. “Right” in this instance refers not only to sufficient resources, but also resources that are culturally appropriate. Furthermore, resources refer to land, information systems, persons, tools and diverse sources of revenue, including the generation of their own sources of income. Within all this, effective, competent leadership is critical. It takes time to develop the capacity to take on some or all self-governance powers in a truly effective manner. Leadership in an environment where Indigenous governing bodies in Canada struggle to meet the resource requirements necessary to run governments where powers are limited, but institutions and national or regional organizational responsibilities are growing. The reality is that all Aboriginal organizations face funding cuts. While effective governance regimes cannot overcome this challenge, they can ensure that the systems, mandates, structures, processes, accountabilities and relationships maximize the resources available. One can imagine that it will take time to develop the capacity to take on some or all self-governance powers in a truly effective manner. With current pressures, struggles to meet the demands of constituents and be responsive to funding 36 Manley Begay Jr. et al, “Development, Governance, Culture: What are they and what do they have to do with rebuilding native nations” in Miriam Jorgensen, Rebuilding Native Nations (Tucson: University of Arizona Press, 2007) p 48.

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bodies – wherein many times priorities and interests may be divergent – to little resources remain for allocation to address fundamental, systemic governance transformation.

/VK.K%G(0$7$"(.@%$,2$11+..There are broader and deeper lessons on effective governance that emerge from analytical research conducted by the IOG. An overarching trend is for governments to push service delivery and other longstanding public sector responsibilities beyond traditional mechanisms in an effort to achieve improved economy and efficiency – a trend termed “distributed governance”. While self-governing Indigenous communities reflect far more complex drivers, they may nonetheless take advantage of this trend. As governments at all levels are pressed to deliver services more efficiently and responsively, they will continue to push for increased local delivery and responsibility, including to Indigenous communities. In order to understand the principles, operations, and organizational models of good governance, the IOG has developed a conceptual tool called the Governance Continuum (Figure 1) that maps and explains the distribution of governance as well as the diverse relationships among public sector organizations. The Governance Continuum classifies distributed governance organizations by function and places them along the contiuum based on the nature and extent of their autonomy. In this way, it illustrates at a glance the relationship between organizational form and function in the public sector. Further, the Continuum illustrates the different kinds of relationships that exist between governments organizations – including relationships based on accountability, transparency and oversight, service delivery, or those that are functional in nature. In addition to its descriptive function, the Governance Continuum has important uses as an analytical and managerial tool. It supports a rigorous assessment of the governance regime for any given organization (actual or proposed) according to detailed criteria, and a comparison of that organization against others with similar and divergent functions. How the organization’s governance regime measures against collective historic practice is a useful starting point for assessing the appropriateness of that regime and helps to define the rationale for any exceptional features. More generally, the Continuum provides a framework for systematic discussion of relationships throughout the public sector.

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Figure 1

Governance Continuum

K%G(0$7$"(.@%$,2$11+.7-.7.307",2"7'.8%%'.5%0./$)2*($%1-.K%G(0$7$"(.Because it conveys a more robust and multi-dimensional depiction of governance than the traditional focus on formal institutional arrangments, the Governance Continuum can provide a distinctively clear depiction of relationships in the complex area of Indigineous governance. Building on and complementing the wealth of best practices already being exercised by Indigenous institutions and governments in Canada, the IOG has designed the Aboriginal Governance Continuum (Figure 2). A distinctive feature of Indigenous governance is that the kinds of relationships that individual institutions usually have with the traditional hierarchy of Ministers, Parliament and the public exist in parallel form vis-à-vis Indigenous Peoples. The Aboriginal Governance Continuum captures this. As with the original Governance Continuum, the Aboriginal Governance Continuum identifies levels of autonomy between the government and the institution or program in question. However, as in the First Nation example illustrated below, the Aboriginal Governance Continuum also identifies the governance relationship between the institution/program and First Nations, as well as the unique relationship between Indigenous Peoples and existing federal and provincial governments.

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Figure 2

As straightforward as these relationships appear when mapped in this way, they imply the need for a much more nuanced approach to governance, both when it comes to negotiating foundational arrangements and on an ongoing basis. To ensure the effective exercise of jurisdictional responsibility, operational authorities and accountability requirements, it is critical to allow for Indigenous governments to develop their own vision, and to address a range of multi-faceted governance issues in the negotiation, transfer and assumption of specific authorities. The articulation of governance challenges goes beyond the division of powers, funding sources and accountabilities. It also drives very granular matters that are not always recognized as being related to governance. These include:

• the design of service delivery and delivery mechanisms; • the framework for the transfer of dollars; • performance measurements and what gets measured by whom; • perceptions of citizenship and community; and • the management of the relationships which underpin the success of these arrangements.

Given such high stakes, it is essential that Indigenous governance arrangements rest on a solid analytical foundation. The Governance Continuum provides this foundation by assessing organizational arrangements in terms of relationships – relationships between form and function and among all organizations and stakeholders.

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18

9%G2$*.8%&70)-.7$.!44'2().N(-(70"6.!*($)7. The process of how greater jurisdictional control can be achieved, and then implemented to ensure better service outcomes by and for Indigenous citizens is challenging and multi-faceted. The goal of ongoing applied research in this field should be to assist Indigenous governments to meet their governance aspirations in a manner that reflects their timing, priorities, and socio-economic realities within the context of the Canadian federation. Research ‘models’ flowing from an applied research agenda established and steered by Indigenous leadership could be undertaken from a sectoral viewpoint, looking at areas such as social services, child welfare, health, and education to name a few. The ‘models’ can look at current and aspirational arrangements and thus help identify gaps in governance capacity and how to fill them. In order to advance the agenda for governance among Indigenous communities, it is important to bring together stakeholders from all areas of government, communities and organizations to discuss the process of transfer of authority from where it is currently being assumed, and the creation of corresponding institutions and governance structures to support the exercise of jurisdiction. All key participants must have the opportunity to share their vision in an open forum and direct a governance research agenda moving forward that serves the needs of Indigenous citizens and their governments within the Canadian federation. Discussion questions for consideration by Beyond Section 35 Symposium participants include:

! What are the key challenges in achieving more fully realized authorities and jurisdictional control?

! How can successful exercise of jurisdiction be achieved, and then implemented, to ensure better service outcomes for Indigenous citizens?

! How can Indigenous governments improve their own administrative performance and better serve their people?

! What are the priority areas for and gaps in applied research around self-government and resulting service delivery implementation?

! Where would an applied research focus from a sectoral viewpoint (e.g., areas such as social services, child welfare, health, and education, etc.) best support Indigenous leadership agendas and priorities?

! How could tools such as a governance framework model with core, commonly defined elements be used to accelerate the achievement of self-government?

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!44($)2W.!J.F2G(.H7$)+70#.I("2-2%$-.K2G2$*.K0(7,(0.I(52$2,2%$.,%.-L;<

:4700%&.R2)($,25M2$*.7$.7X%02*2$7'.7$).,0(7,M.02*6,-.,(-,S.In Sparrow37 a Musquem Band member was charged with violating the federal Fisheries Act.38 Sparrow argued that the act violated his existing treaty rights to fish as protected under s.35. The Supreme Court decision that followed not only defined key terms within s.35, but also established the original four-part test for determining the existence of an Aboriginal right.

“Is there an existing aboriginal right?” Here the court defined an “existing” right as one that had not been extinguished prior to 1982. 39

“Has the right been extinguished?” The judiciary was careful to highlight the difference between extinguishment and regulation, stating that if a right had previously only been regulated by the government (as Sparrow’s right to fish had been regulated under the Fisheries Act) then it still existed and remained protected under s.35. The court elaborated that in order to prove extinguishment the Crown had to prove an explicit intention to remove an existing right.40

“Has there been a prima facie infringement of the right?” Here the court held that the onus rested on the claimant to prove that the government had infringed their aboriginal right. The court provided relevant questions for determining infringement: was the limitation unreasonable, did the regulation impose undue hardship, and did the regulation deny the claimant their preferred means of exercising the right in question.41

“Can the infringement be justified?” Here the onus rests on the government to provide justifiable legislative cause for infringement of the given right(s). Additionally, the Crown must prove it upheld the Honour of the Crown through methods such as consultation, accommodation, and compensation to the claimant.42 This part of the Sparrow Test has been interpreted as reading section 1 of the Charter into s.35 because it holds that constitutionally protected aboriginal rights are not absolute. The court ultimately found that Sparrow had an existing right to fish.

Y7$.)(0.3((,.R$700%&2$*.,6(.7X%02*2$7'.02*6,-.,(-,S.In Van der Peet,43 a member of the Stó: lō Nation was charged with illegally selling fish that had been lawfully caught under a food-fishing license. Within their decision the Supreme Court established a two-part sub-framework under Part 1 of the Sparrow Test for determining the existence of an aboriginal right. The court added both a requirement for the characterization of the claimed right, and a determination of whether the activity in question was an integral part of

37 R. v. Sparrow [1990] 1 S.C.R. 1075 38 R.S.C. 1985, c. F-14. 39 Sparrow, supra note 25 at paras. 23-27. 40 Ibid. at para. 36. 41 Ibid. at paras. 67-70. 42 Ibid. at para. 64. 43 R. v. Van der Peet [1996] 2 S.C.R. 507.

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the aboriginal culture prior to European contact. The court proposed a 10-part test for determining whether an activity was “central” to an aboriginal culture. This decision has been interpreted as severely narrowing aboriginal rights as protected in the constitution. Not only does the decision focus on rights as derived solely from cultural practices,44 but it also effectively “freezes” both aboriginal culture and rights through its centrality requirement.45 This centrality condition places Indigenous people in culturally static collectives, frozen in a “pre-contact” time.46 Not only does this limit rights recognition, it is also unrealistic. People and culture are constantly in flux. Furthermore, under this decision, activities that were and continue to be of great significance but were not carried out frequently enough to be considered customs and traditions by European standards risk being ignored.47 The court held that Van der Peet did not have a commercial right to sell fish because she could not prove that the trade of salmon was an integral aspect of the Stó: lō Nation’s traditional culture prior to European contact.

I('*7+11#&.R)(,(0+2$2$*.,6(.$7,10(.%5.7X%02*2$7'.,2,'(S.In Delgamuukw,48 hereditary chiefs from the Gitksan and Wet’suwet’en Nations claimed ownership and legal jurisdiction over what they claimed were traditional territories (roughly 58,000 square kilometres) in northwestern British Columbia. At the provincial court level, the judiciary decided that the two nations had no existing land rights within the province. Delgamuukw was then appealed to the Supreme Court. The Supreme Court did not make a definitive decision regarding the Gitksan and Wet’suwet’en Nations’ land rights. Instead the Supreme Court insisted another trial needed to be held while still providing a discussion regarding the nature of aboriginal title. This discussion built upon the court’s decision in Van der Peet by establishing a continuum through which to classify aboriginal rights in respect to their connection to the land.49 The court identified the highest classification along this continuum as aboriginal title, which they held as a sui generis, direct right to the land,50 as opposed to site-specific or practice and custom based rights. The court’s decision set out three criteria the claimant must satisfy in order to prove their right to Aboriginal title.51

• the claimant must prove aboriginal occupation of the land prior to the Crown’s assertion of sovereignty over the land in question;

• where current occupation is relied upon as proof, the claimant must show that there is continuity between present and pre-sovereignty occupation; and

• the claimant must show that at the time of the Crown’s assertion of sovereignty, that the aboriginal occupation of the land was exclusive.

44 Honourable Justice Douglas Lambert. “Van der Peet and Delgamuukw: Ten Unresolved Issues.” UBC law Review Alumni Lecture. Vancouver, British Columbia. 26 Feb., 1998. Lecture. 45 Russel Lawrence Barsh and James Young Henderson. “The Supreme Court’s Van der Peet Triology: Naïve Imperialism and the Ropes of Sand.” McGill Law Journal 42. (1997): 993-1009. p.1001 46 Brent Olthius. “The Constitution’s Peoples: Approaching Community in the Context of Section 35 of the Constitution Act, 1982.” McGill Law Review 54 (2009): 1-43. p.10 **Emphasis added. 47 Lambert. 48 Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010. 49 Ibid. at para. 138. 50 Ibid. 51 Ibid. at para 143.

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The court stated here that exclusive occupation could be held by more than one Aboriginal group. Finally, the court held that the judiciary must give equal weight and consideration to oral and written evidence.52 This has been interpreted as a significant achievement, as Indigenous cultures tend to be based in the oral tradition.

NL.GL.3%&'(M.R)(,(0+2$2$*.,6(.$7,10(.%5.9Z,2-.02*6,-S...In Powely, members of the Métis community in and around Sault Ste. Marie were charged with unlawfully hunting moose and knowingly possessing game hunted in contravention of the Game and Fish Act, R.S.O. 1990, c. G-1. The defendants admitted to shooting and possessing the game, however, they argued that the sections of the Game and Fish Act, whihc prohibit hunting moose without a licence, unconstitutionally infringed their aboriginal right to hunt for food, as recognized in s. 35(1) of the Constitute Act, 1982. In finding on behalf of the defendants, the Supreme Court said that the appropriate way to define Métis rights in s. 35 is to modify the test used to define the Aboriginal rights of Indians (the Van der Peet test). The Powley test is set out in the following ten parts: 1) Charterization of the right. 2) Identification of the historic rights bearing comunity – An historic Métis community was a group of Métis with a distinctive collective identity, who lived together in the same georgraphic area and shared a common way of life. 3) Identification of the contemporary rights bearing community – First the community must self-identify as a Métis community. Second, there must be proof that the contemporary Métis community is a continuation of the historic Métis community. 4) Verification of membership in the contemporary Métis community – There must be an “objectively verifiable process” to identify members of the community. This means a process that is based on reasonable principles and historical fact that can be documented. 5) Identification of the relevant time – The Court called the appropriate time test for Métis the “post contact but pre-control” test and said that the focus should be on the period after a particular Métis community arose and before it came under the effective control and influence of European laws and customs. 6) Was the practice integral to the claimant’s distinctive culture – Court asks whether the practice is an important aspect of Métis life and a defining feature of their special relationship to the land. 7) Continuity between the historic practice and the contemporary right – There must be some evidence to support the claim that the contemporary practice is in continuity with the historic practice. 8) Extinguishment – The doctrine of extingishment applies equally to Métis and First Nation claims. 9) Infringement – No rights are absolute and this is as true for Métis rights as for any other rights. 10) Justification – Conservation, health and safety are all reasons that government can use to justify infringing an Aborignal right. But they have to prove that there is a real threat.

52 Ibid. at para 148.

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U72)7.Q7,2%$.GL.TL@L.7$).92#2-(&.R"'7025M2$*.)1,M.,%."%$-1',S.In Haida,53 the Haida Nation claimed that the province had failed to meaningfully consult their nation before beginning forestry activities on lands to which the Nation claimed Aboriginal title. While title had not been recognized by law, the Nation still launched a suit against the province. The court ruled that there was a duty to consult and accommodate concerning all government (federal and provincial) interactions with First Nations, which is derived from the Honour of the Crown. This duty exists, the court found, whether or not title has been proven or asserted.54 Within its decision, the judiciary held that there are different levels of a duty regarding consultation. Where the claim to aboriginal title is weak and a threat to aboriginal interests is not great, the duty is light. Alternatively, where the claim to title is strong and the potential impact to aboriginal interests is severe, there is a heavy obligation.55 Furthermore, the court held that procedural aspects of the duty can be delegated to private parties, such as resource extraction companies.56 The court found that the Haida Nation’s claim to title, while not proven, was strong and therefore the Crown had a heavy obligation regarding their duty to consult the nation. In Mikisew57 the court held that duty to consult can arise from a treaty right.

53 Haida Nation v. British Columbia (Minister of Forests) [2004] 3 S.C.R. 511 54 Ibid. at para 27. 55 Ibid. at para. 35. 56 Ibid.at para. 53. 57 Mikisew Cree First Nation v. Canada (Minister of Heritage) [2005] 3 S.C.R. 388

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!44($)2W.TJ.H7$)+70#.!*0((+($,-.

:(",%07'.92[#+7\.])1"7,2%$.!*0((+($,A.BCC?.The Mi’kmaq Education Agreement58 can be classified as a sectoral self-government arrangement, a negotiated arrangement respecting the powers of the Mi’kmaq of Nova Scotia in relation to education. The negotiated agreement led to the passage of a federal law in 1999 called the “Mi’kmaq Education Act.” The federal law recognized Mi’kmaq First Nations’ jurisdiction over education on reserve in Nova Scotia, annulling provisions 114-122 of the Indian Act. The provincial government passed a similar provincial law in 1998 (also called the “Mi’kmaq Education Act”) recognizing the same jurisdiction. Currently, jurisdiction is exercised by the Band Councils of participating communities, through the educational constitutions each community had to establish prior to the Act’s ratification.59 Administration of educational services rests jointly with the communities and the Mi’kmaq Kina’matnewey (MK) body, which acts as a unifying body and a unified voice, at the provincial level, for the participating communities. Under federal law, MK’s role is to support the delivery of programs and services. It is to be noted that the body does not have the authority to pass any regulations or legislation unless an individual First Nation specifically gives them the authority.60 As such, MK’s authority is vested with the individual First Nation communities. Today, there are seven elementary, four junior high, and four senior high schools throughout participating Mi’kmaq communities within Nova Scotia. For those children who still attend provincial schools, the Mi’kmaq have established the Council of Mi’kmaq Education (CME) that advises Nova Scotia’s Minister of Education on issues relating to Mi’kmaq education. Furthermore, federal funding for post-secondary education has resulted in more Mi’kmaq pursuing professional careers.61 Overall, greater autonomy and jurisdiction within education has led to a more robust school system for the Mi’kmaq of Nova Scotia.

31X'2".K%G(0$+($,.P.Q1$7G1,..The Nunavut Act62 currently represents Canada’s only model of public government, a territorial government established within a shared territory63 where the Indigenous population represents the majority. It should be noted that the government of Nunavut is not an ethnic form of self-government. Its structure is similar to other Canadian territorial government models64 and the rights and responsibilities of its citizens are determined through the Canadian Charter of Rights and Freedoms.65 Additionally, non-Indigenous people of the territory share equal participation within the government. 58 Canada. Aboriginal Affairs and Northern Development Canada. The Mi’kmaq Education Agreement. Ottawa: GPO, 1997. 59 An Agreement with Respect to Mi’kmaq Education in Nova Scotia. 1997. Section 8.1.3. 60 Mi’kmaw Kina’matnewey Constitution-Resolution. November 4, 1998. Section 9. 61 Canada. Human Resources and Development Canada. Kekina’muek: Learning about the Mi’kmaq of Nova Scotia. Truro: Eastern Woodland Publishing, 2007. 62 Nunavut Act, S.C. 1993, c.28 63 Here, the term “Shared territory” refers to a territory inhabited by both Indigenous and non-Indigenous ancestry and culture. 64 Territorial governments in Canada are established by statute, and therefore not established under the Constitution Act, 1867 as constitutionally recognized sovereign bodies. Territorial government, therefore, functions much more like municipal government, as neither have powers deriving directly from the constitution. 65 Mike Vlessides. “A Public Government.” Nunavut’99. n.d. Web. 15 Aug. 2012.

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Since the Final Agreement that established Nunavut included the Nunavut Land Claims Agreement Act, the Inuit are able to maintain control over some areas of jurisdiction that, for other territorial governments, are reserved for the federal government.66 For example, based on provisions held within the land claim agreement, Inuit appointees and Nunavut government representatives sit as equals on administrative bodies that concern jurisdictional areas such as surface rights, water, and wildlife.67 Furthermore, as part of the land claim agreement, the government of Nunavut received $1.1 billion paid out on a per annum basis up until 2007.68 Because the economy is very small, this federal transfer has enabled the government to sustain government programs and services. The agreement itself recognizes Inuit title to 355,842 square kilometers of land, and mineral rights to 35,257 square kilometers of the same land. Land not covered under title remains Federal Crown land, wherein the Inuit receive a share of the royalties from the minerals and resources extracted from the land. The Inuit are also recognized as having equal representation and joint control over issues such as land planning, wildlife, environmental protection and offshore resources. As per the land claim agreement, it has been guaranteed that the Government of Nunavut will always resemble the ethnic make-up of the population of the territory.69

9%)(0$.80(7,2(-.P.Q2-*7[7.80(7,M.This Nisga’a Treaty is the first modern-day treaty in British Columbia and can be classified as a Claims-Related Self-Governance Agreement. After initiating the Calder case before the Supreme Court and gaining recognition of the justiciability of their legal position in Canada, the Nisga’a entered into a two-decade long negotiation that culminated in a comprehensive treaty in 1999. The Agreement provides for collective Nisga’a ownership of approximately 2,000 square kilometres of land in the Nass Valley watershed in northwestern British Columbia. The treaty covers such diverse issues as land titles, minerals, water, forests, fisheries, wildlife, governance, the administration of justice, fiscal relations (including taxation), cultural property, and dispute resolution. Many of these provisions provide significant benefits for Nisga’a people that are far greater than anything contemplated under the current Indian Act. Of particular importance is the Agreement’s reference to the Ayuukhl as a source of Nisga’a law, and the creation of Nisga’a courts to determine its meaning in the context of the new treaty. Under the Nisga’a Final Agreement, the Nisga’a Government has no exclusive jurisdiction. It is always concurrent with federal or provincial jurisdiction, which made it necessary to provide for rules that determine which law prevails in the event of inconsistency or conflict. Generally, Nisga’a laws prevail in relation to matters that are internal to the Nisga’a Nation, integral to their distinct culture or essential to the operation of their government or the exercise of their other treaty rights. In some cases, Nisga’a laws must comply with provincial standards in order to be valid. If those standards are met or exceeded, then Nisga’a laws prevail. In other cases, Canada, British Columbia and the Nisga’a Nation agreed that, while the Nisga’a Government should have

66 “Modern Day Treaties.” Office of the Treaty Commissioner. n.p., n.d. Web. 15 Aug. 2012. 67 Vlessides, supra note 41. 68 “Modern Day Treaties.” Supra note 42. 69 Ibid.

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the authority to make laws, if there is a conflict, federal or provincial laws should prevail. Finally, there are subject matters such as over which the Nisga’a Government has no jurisdiction.

T2'7,(07'.:('5PK%G(0$+($,.P.=(-,X7$#.:('5PK%G(0$+($,.!*0((+($,.In 2004 the Westbank Self-Government Agreement was ratified. This is one of the few Stand-Alone Self-Governance Agreements in Canada. This bilateral self-government agreement provides the Westbank First Nation jurisdiction over most matters regulated in the past under the Indian Act for on reserve activities. Specifically, lands and lands management, membership, financial management, landlord and tenant issues, resource management, agriculture, environment, culture and language, education and health for its members including enforcement of laws. Provisions in the agreement provide critical governance and land management authority to manage and give certainty to economic development on reserve lands.

Under the agreement, a Westbank Constitution was established that defines practices that ensure democratic elections for chief and council, including fundamental rules ensuring procedural and administrative fairness with financial accountability, including appealing administrative decisions. Additionally, the Westbank Constitution not only ensures political and financial accountability of the Westbank band members, it puts in place a mechanism by which non-Native residents on Westbank lands and those who have interests on Westbank lands may be represented. Finally, Westbank exercises full jurisdiction over its infrastructure towards water, sewage, landfill, and roads services for residential and commercial use. The Agreement also enables the First Nation to be eligible for municipal grants for community improvement, setting a provincial precedent.

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T2X'2%*0746M. Abele, Francis, Katherine Graham, and Allan Maslove. “Negotiating Canada: Changes in Aboriginal Policy over the Last Thirty Years.” In How Ottawa Spends 1999- 2000: Shape Shifting: Canadian Governance Towards the 21st Century. Edited by Leslie Pal. Don Mills: Oxford University Press, 1999. An Act Respecting Indians, R.S.C. 1985, c.1-5. Begay Jr., Manley, Stephen Cornell, Miriam Jorgensen and Joseph P. Kalt. “Development, Governance, Culture: What are they and what do they have to do with rebuilding native nations.” In Rebuilding Native Nations. Edited by Miriam Jorgensen. Tucson: University of Arizona Press, 2007. Barsh, Russel Lawrence and James Young Henderson. “The Supreme Court’s Van der Peet Triology: Naïve Imperialism and the Ropes of Sand.” McGill Law Journal 42 (1997): 993-1009. Borrows, John J. & Leonard I. Rotman, Aboriginal Legal Issues: Cases, Materials & Commentary, 4th ed. (Markham, ON: LexisNexis, 2012). Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010. Department of Aboriginal Affairs and Northern Development Canada. General Briefing Note on Canada’s Self-Government and Land Claims Policies and the Status of Negotiations. Ottawa: GPO, 2012. Eberts, Mary, Sharon McIvor and Teressa Nahanee, “Native Women’s Association of Canada v Canada.” Canadian Journal of Women and the Law/Revue Femmes et Droit 18 (2006): 67-119. Haida Nation v. British Columbia (Minister of Forests) [2004] 3 S.C.R. 511 Lambert, Honourable Justice Douglas. “Van der Peet and Delgamuukw: Ten Unresolved Issues.” UBC Law Review Alumni Lecture. Vancouver, British Columbia. 26 February, 1998. Macklem, Patrick. Indigenous Difference and the Constitution of Canada. Toronto: University of Toronto Press, 2001. McFarlane, Peter. “The Peoples’ Movement.” In Brotherhood to Nationhood: George Manuel and the Making of the Modern Indian Movement. 247-63. Toronto: Between the Lines, 1993. McFarlane, Peter. “European Express.” In Brotherhood to Nationhood: George Manuel and the Making of the Modern Indian Movement. 285-302. Toronto: Between the Lines, 1993. Mikisew Cree First Nation v. Canada (Minister of Heritage) [2005] 3 S.C.R. 388.

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Nahwegahbow, David C. and Nicole D.O. Richmond. “Impact of the 1982 Constitution on First Nations: Reflections on Section 35: Whether the Constitution Act has made a difference for First Nations?” National Journal of Constitutional Law 23 (2007/2008): 153-171. Olthius, Brent. “The Constitution’s Peoples: Approaching Community in the Context of Section 35 of the Constitution Act, 1982.” McGill Law Review 54 (2009): 1-43. Royal Proclamation 1763 (U.K.), reprinted R.S.C. 1985, App.II, No.1. R. v. Powley [2003] S.C.J. No. 43, [2003] 2 S.C.R. 207 (S.C.C.). R. v. Sparrow [1990] 1 S.C.R. 1075. R. v. Van der Peet [1996] 2 S.C.R. 507. R. v. Pamajewon [1996] S.C.J. No. 20, [1996] 2 S.C.R. 821. “The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government.” Department of Aboriginal Affairs and Northern Development Canada. 15 September, 2010. Scholtz, Christa. “Aboriginal Communities and the Charlottetown Accord: A Preliminary Analysis of Voting Returns.” Paper presented to the Canadian Political Science Association Annual Meetings. June 2008. Vancouver, British Columbia.

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