Taken from BC AFN Governance Toolkit
First Nations were self governing long before Europeans arrived in Canada. In 1876, The Indian Act came into effect, dismantling traditional governance systems and imposing regulations on aboriginal peoples’ lives. Today, the federal government recognizes that aboriginal people have an inherent, constitutionally-protected right to self government — a right to manage their own affairs.
First Nations have long demanded the right to govern themselves according to their own traditions—to be free of the Indian Act. A poignant example of this struggle is the plight of the Nisga’a Nation. As far back as 1887 Nisga’a and Tsimshian chiefs travelled to Victoria to press for treaties and self government. It would take more than a century before the Nisga’a Treaty was signed in 2000.
The government of Canada recognizes that the Indian Act system needs to change. Under the BC treaty process, self-government arrangements will be designed, established and administered by aboriginal peoples. Through self government, First Nations can again become self determining and self sufficient.
There is no template for self-government; each First Nation establishes their own unique self-government arrangement. Self-government provisions may include:
- Language and Culture
- Health care and social services
- Police services
- Property rights
- Child welfare
For example, the Nisga’a Lisims government has four directorships: Lands and Resources, Fisheries and Wildlife, Finance, and Programs and Services—including child and family, and justice services.
The new governing structure will have a constitution and law-making authority over treaty land and provision of public services. Regardless of who has jurisdiction over any particular service after the treaty, the parties must agree on arrangements for its delivery.
Concerns have been raised that self government will lead to:
- Raced-based rights that no other Canadians will have;
- Fifty or 60 homelands, each with its own laws;
- A justice-based system based on race; and
- Non-aboriginal people living on settlement land paying property taxes and not able to participate democratically in public decisions that affect them.
- Provisions for self government will vary from treaty to treaty, guided by these principles:
Self government will be exercised within the existing Canadian Constitution. Aboriginal peoples will continue to be citizens of Canada and the province or territory where they live, but they may exercise varying degrees of jurisdiction and/or authority.
- The Canadian Charter of Rights and Freedoms and the Criminal Code of Canada will apply fully to aboriginal governments as it doe to all other governments in Canada
- First Nations will have the ability to make laws pertaining to treaty land and the provision of public service for their people, including health care, education and social services
- Some local laws like zoning and transportation will apply to all residents on treaty lands, but the majority of treaty laws will apply only to treaty citizens. Federal, provincial, territorial and aboriginal laws must work in harmony
- First Nations will be required to consult with local residents on decisions that directly affect them (for example health, school, and police boards)
Constitutional-Protected vs. Municipal Style Government
Under the BC treaty process, each First Nation negotiates agreed implementation of a self government arrangement to meet their unique social, cultural, political and economic needs.
The BC Claims Task Force, established in 1991 to make recommendations for a made-in-BC treaty process, envisioned that self-government arrangements negotiated through the BC treaty process would have constitutional protection. Constitutionally-protected self government, like the Nisga’a Treaty, is actually passed as Canadian law, and cannot be changed unless all three parties-Canada, BC and the First Nation-agree. Constitutional protection ensures that self-governing powers established by the treaty cannot be taken away.
In a municipal-style of self government, governance powers are delegated by an act of Parliament and an act of the BC Legislature and have no constitutional protection. The Sechelt Indian Band Self-Government Act is an example of a municipal-style self-government agreement.
Treaties will replace Indian Act-imposed band governments with a government authority for all members of a nation.Each treaty will define who can be enrolled under the agreement. Most First Nations will have broader eligibility criteria than current status and non-status designations under the Indian Act. Eligibility criteria will likely require that an individual be of aboriginal ancestry or accepted as a member of the aboriginal community.
Self-government arrangements strive to provide better opportunities for aboriginal people living within their traditional territory, while not excluding those aboriginal people who choose to live elsewhere. For example, several First Nations living in urban areas have been enrolled as Nisga’a citizens, and three urban locals have been established.
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