When it comes to self-governance, Canadian First Nations are both ahead of and behind their counterparts in the United States. The comparisons are enlightening. So are the contrasts.
In the U.S., for example, no court or government agency will accept Indian oral history to support land or recognition claims. Indeed, the federal government stopped negotiating treaties with Indian tribes in 1871.
But in Delgamuukw v. The Queen (1997), the Canadian Supreme Court advised the province of British Columbia to negotiate treaties in which First Nations communities could use oral histories to support claims. And right now, Canada has active land negotiations with nearly 50 First Nations. About 116 First Nations are negotiating new treaties with British Columbia.
Yet despite this enlightened attitude, the development of government-to-government relations in Canada has too often lagged behind that in the United States.
It’s important to appreciate, before going any further, the scope of the First Nations presence. In Canada, there are 615 First Nations. About 1.2 million persons have official indigenous status, and about 50 percent live off-reserve. Altogether, Canadian Natives retain 13 percent of Canadian land in 2,675 separate reserves.
That’s a substantial presence. And yet despite Ottawa’s willingness to negotiate land settlements with First Nations, the government has not lifted its control over band governments and their assets.
The fundamental law in Canada concerning the governance of First Nations peoples is the Indian Act, first generated as a strongly assimilationist document and policy in 1871. Since then, the exercise of self government by First Nations has turned out to be rare indeed. Only about 22 First Nations have taken the opportunity to negotiate self government agreements with Ottawa. The other 590 or so First Nations governments are under virtual federal control.
In 1920, the Indian Act was amended to replace traditional First Nation governments with band governments consisting of elected chiefs and band councils. But in reality, the band governments are largely an extension of Canadian government administration and control. There are no band constitutions. Rather, Canadian government officials determine the rules.
Just turn to Section 76 of the 2012 updated Indian Act. “The Governor in Council,” it states, “may make orders and regulations with respect to band elections and, without restricting the generality of the foregoing, may make regulations with respect to (a) meetings to nominate candidates; (b) the appointment and duties of electoral officers; (c) the manner in which voting is to be carried out; (d) election appeals; and (e) the definition of residence for the purpose of determining the eligibility of voters.”
And there you have it. The governor in council is the representative of the Queen of the United Kingdom in Canada and acts upon the advice of the federal cabinet. Furthermore, government officials must approve bylaws, can remove elected officials, distribute band funds, build reserve roads and bridges, dispose of First Nation and band member private property on reserves, and more. On reserve lands, provincial laws prevail.
This is not to say the situation is set in stone. There was reason to hope in 1993, when many band communities in British Columbia celebrated the beginning of land and treaty negotiations.
Since then, though, most of the negotiations have turned sour, with little progress being made. The First Nations want to negotiate government-to-government relations and establish self-government. The British Columbia government, on the other hand, is determined to establish First Nation governments as municipalities that are subordinate to provincial law and subject to provincial taxation.
In short, British Columbia wants to extinguish indigenous land title and avoid recognizing First Nation government rights. And they can get away with it. In many cases, Ottawa has not provided adequate funds for First Nations to buy significant amounts of land. The First Nations of British Columbia are also subject to continuing assimilation plans and policies.
Whither, then, self government in Canada? The answer is by no means clear. But a first step would certainly be giving First Nations a greater capacity to manage their own affairs.