National Centre for First Nations Governance 1 Our Inherent Right to Self-Government

National Centre for First Nations Governance 2 For thousand of years there was no such thing as an Indian Act... We observed laws that encouraged us to be wise, humble, respectful, truthful, brave, loving, and honest in our dealings with others. John Borrows

National Centre for First Nations Governance 3 Inherent Right to Self- Government Aboriginal peoples have argued that they possess and inherent right of self- government and that this right best expresses their self-governing objectives and aspirations. Aboriginal peoples have argued that they possess and inherent right of self- government and that this right best expresses their self-governing objectives and aspirations.

National Centre for First Nations Governance 4 Legal Landscape Pamajewon, Van der Peet, Delgamuukw, Campbell, Connolly, Haida, Mitchell

National Centre for First Nations Governance 5 Legal Landscape 3 Approaches to Self-Government

National Centre for First Nations Governance 6 Approach1: Free Standing Aboriginal Right under S. 35 …self-government [is] no different from other claims to the enjoyment of aboriginal rights and must…be measured against the same standard.… -Pamajewon, para an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group -Van der Peet, para 46 Legal Landscape 3 Approaches

National Centre for First Nations Governance 7 Pros & Cons of Approach 1 Assumed s.35 included the right to self-government Assumed s.35 included the right to self-government Set out the test to be used for claims Set out the test to be used for claims Has been criticized for using a frozen rights approach. Has been criticized for using a frozen rights approach. Every First Nation would have to prove the right to regulate every component of their self-government Every First Nation would have to prove the right to regulate every component of their self-government

National Centre for First Nations Governance 8 Approach 2: Self-Regulation over Aboriginal & Treaty Rights …aboriginal title encompasses within it a right to choose what ends a piece of land can be put… - Delgamuukw, para 168 …[title includes] the right for the community to make decisions as to the use of the land and therefore the right to have a political structure… - Campbell, para 137 Legal Landscape 3 Approaches

National Centre for First Nations Governance 9 Self-government survived Confederation a right to self-government…survived as one of the unwritten underlying values of the Constitution - Campbell, para the Indian political and territorial right, laws and usages remained in full force -Connolly, para 97 Legal Landscape 3 Approaches

National Centre for First Nations Governance 10 Self-Regulation of Unproven Rights …the Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests… -Haida, para 27 … the duty to consult and accommodate is part of a process of fair dealing and reconciliation … - Haida, para 32 Legal Landscape 3 Approaches

National Centre for First Nations Governance 11 Pros & Cons of Approach 2 Recognizes right to self-government Recognizes right to self-government Can expand jurisdiction based on community needs Can expand jurisdiction based on community needs If relationship with Crown breaks down, have burden of proving rights in Court If relationship with Crown breaks down, have burden of proving rights in Court Crown views s.35 as empty box Crown views s.35 as empty box

National Centre for First Nations Governance 12 Approach 3: Residual Sovereignty of Aboriginal People …sovereign incompatibility continues to be an element in the s.35(1) analysis, albeit a limitation that will be sparingly applied -Mitchell, para 154 Legal Landscape 3 Approaches

National Centre for First Nations Governance 13 Pros & Cons of Approach 3 Crown has burden to prove they have authority to infringe Aboriginal & Treaty Rights Crown has burden to prove they have authority to infringe Aboriginal & Treaty Rights S.35 would be a full box of rights S.35 would be a full box of rights Has not been accepted by the Supreme Court of Canada Has not been accepted by the Supreme Court of Canada

National Centre for First Nations Governance 14 Summary Case law has not clearly defined the nature of the inherent right to self- government Case law has not clearly defined the nature of the inherent right to self- government Second approach is preferred Second approach is preferred Canada is likely to oppose expansion of First Nation jurisdiction Canada is likely to oppose expansion of First Nation jurisdiction Court process has uncertain outcomes Court process has uncertain outcomes

National Centre for First Nations Governance 15 Strategies for Self-Government Negotiated agreements likely to be supported Negotiated agreements likely to be supported Be careful not to undermine Crown authority Be careful not to undermine Crown authority jurisdiction over traditional practices more likely to be supported by the courts jurisdiction over traditional practices more likely to be supported by the courts strengthen other Aboriginal or Treaty rights strengthen other Aboriginal or Treaty rights

National Centre for First Nations Governance 16 Conclusion The right to Self-Government has been recognized and can be exercised in a very full and meaningful way. Legal Landscape 3 Approaches

National Centre for First Nations Governance 17 National Centre for First Nations Governance