Third, the Aboriginals emphasize that the right to self-government on jurisdictional matters includes the following: the delivery of social services such as policing, education, and health and welfare (“institutional autonomy”); resource acquisition and use of land for economic regeneration; promotion of distinct cultural values and language systems; band membership and entitlements; and federal expenditures according to indigenous priorities rather than those of the government bureaucracy (8). (See Dudley and Agard).
To be more specific, First Nation bonds have self-governing models (9). (See Havemann, Table 7.1) Of course these models vary from bond to bond, in accordance with their historical and geographical differences. Nevertheless, all these models include four levels of self-government, and that is how it looks like:
1.statehood: ‘absolute’ sovereignty with complete independent authority over internal and external jurisdictions
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2.nationhood: ‘shared’ sovereignty, with jurisdictional authority over internal matters of direct relevance but not over external affairs
3.municipal: ‘functional’ sovereignty, with control over community-based, culturally sensitive development in conjunction with control over the legitimate concerns of comparable units
4.institutional: ‘nominal’ sovereignty, with meaningful decision-making powers through improved representation and institutional accommodation.
Here is how they say it in their own words:
Let us share our dream for First nation peoples…
We dream about a Canada in which our inherent right to govern ourselves is acknowledged…
We dream about healthy communities where children will be proud to say they are first Nations peoples…
Our peoples dream about the survival of our languages and cultures…
We dream about the future in which we will not be placed in the position of having to beg the rest of Canada for the land that once belonged to our ancestors, land we still use…
Above all, our dream is for equality as peoples and for the respect of our right to be different (10).(Mercredi and Turpel,pp.245-6).
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To summarize First Nations’ argument it is important to stress that the First Nation peoples of Canada want federal government to acknowledge that federal authority or Canadian law does not delegate the right to self-government. “These rights are perceived by First Nations as inherent; they predate State authority, preclude legitimacy of the State without express consent, and cannot be extinguished” (11). (Havemann,p.200). Elijah Harper, the Canadian Aboriginal expressed it concisely: “Self –government is not (something) that can be given away by any government, but rather…flows from (the) Creator. Self-government …is taking control and managing own affairs, being able to determine our own future and destiny… It has never been up to the governments to give self-government. It has never been their go give”(12)(RCAP, Preliminary Report, CCGP, Ottawa, 1992,p.19)
In contrast to Aboriginal view, Canadian federal government perspective on native self-government is “sustained by the primitive nature of Canadian law on aboriginal rights”(12).(Boldt and Long, p.27) Canadian officials state that in Canada an aboriginal right must be proved to have existed and to have been exercised before any claims can be made with regards to the right. For instance, the federal government is willing to consider the claim of the Coppermine Indians to copper in their area in a quantity sufficient for
them to make their own utensils, since expert witnesses can testify that in ancient times the Coppermine Indians did make their own copper utensils.
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The federal government, however, will not consider the claim of the Coppermine Indians to petroleum under their lands on the basis that they did not make use of it historically, and thus are not considered to have an aboriginal right to it. In analogy to this example, the Arabs of Saudi Arabia should de denied the right to exploit oil resources. In this light federal argument looks silly.
Further, the federal government claims that it has all rights in aboriginal areas, although it did not make use of those rights historically. Oddly, the federal government claims that it can make agreements regarding the removal of aboriginal title and rights but that it cannot pass laws recognizing aboriginal title and rights.
Another absurd situation arises from a restrictive interpretation of aboriginal rights by the federal government, which concludes that a First Nation can exercise its right only in the precise way they did in pre-settlement times. If a First Nation used bone rather than steel fishhooks, than it can only exercise its aboriginal right to fish with bone hooks. The fact that settlers have been able to move from bone hooks to fishing trawlers in no way mitigates this nonsensical position. Canadians seem to be able to keep permanence of identity and rights despite their technological evolution from horses and buggies to jets. Knickers and three-cornered hats are no longer in fashion. Why must Indian people be limited to a particular anthropological time in order to qualify for exercise of an aboriginal right?
What has happened, in effect is that the federal government has nearly succeeded in
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turning the historical relationship with the First Nations on its head (13).(Boldt and Long, 28).
The government has granted to itself the right to determine what is and what is not an aboriginal right, what criteria will be applied regarding the exercise of an aboriginal right, and the legal system under which any actions will be heard. Their own title, and their own rights in Canada, are considered to be absolute, and thus, are not open to discussion.
The federal government has protected itself with a number of positions. As an example, federal officials say aboriginal rights could be considered at a political rather than a legal level if the right to self-government could first be established. To establish that right, however, one must rely upon the current law, which does not recognize First Nation government. This is a classic example of arguing in a circle.
Federal officials pretend they are unable to make a political determination of the question of aboriginal rights because it is essentially a legal question (14).(Boldt and Long,28) This policy itself a political decision, no matter how much federal officials might deny it. Worse, it seems that federal officials themselves made this political decision. Perhaps this is the reason why they deny its political nature.
Despite such approach of Canadian federal government on native self-government, Canadian officials gradually have been trying to come to the consensus with First Nations on the issue of native rights.
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“There is a recognition on the part of the federal government that the existing legal and political arrangements for Indians in Canada, in particular the Indian Act, are too restrictive and in need of reform”(15).(Bear, 67). Therefore, some policies towards Indian self-government were implemented.
The most known policy was called the White Paper. It was developed in1969, when the Trudeau government proposed that Indians be structurally integrated into Canadian society on an individual basis and that federal protection be quickly eliminated (16).(Canadian Public Policy, 2,(Spring 1982)pp.189-99). Realizing that “internal colonialism”(17) had largely resulted in the economic and social stagnation of Indians and their continued dependency on government assistance, federal officials argued that the best solution to the Indians’ problems was to give them the opportunity for full and equal participation in Canadian society. To achieve these ends, the White Paper advocated the repeal of the Indian Act, the removal of special legal status for Indians, the elimination of the centralized bureaucracy of the Indian Affairs Department, and the extensive involvement of the provinces in the delivery of social and other services to Indians both on and off reserves.
Indian reaction towards the White Paper was aggressive. Indian leaders viewed the proposals as a design to diverts Indians of their lands, their aboriginal and treaty rights, and they feared a lack of support on the part of the provinces for the preservation of their cultural heritage should their legal distinctiveness be removed. “ The White Paper of 1969 threatened to terminate and extinguish our distinct status and rights”( Chief Matthew Coon Come, 2001) In effect, for the Indians, the White Paper was seen as identical to committing cultural genocide. Faced with an entrenched opposition, the federal government abandoned the White Paper in 1971.
In 1974 the federal government developed another policy paper, which was entitled “Indian-Federal Government Relations”(18). (Bear, 60) It was based on the principles of partnership between the federal government and Canada’s Indians. It affirmed that the federal Department of Indian Affairs would involve Indian people in policy formulation affecting Indians, and it set out the process for involving Indian people in joint program development. So, the Indian people were given a position of joint-decision maker with the federal government. As the evidence suggests, however, the process of policy development within the department never conformed to the joint decision-making model (19).(Bear, 61) The government officials continued to conduct its affairs not by consulting but rather by imposing its policies on Indians. This approach placed Indians in the reactive role. They began to oppose government policy. All in all, the formal process of joint decision-making was never worked out between the federal government and the Indians in Canada, although there were honest attempts on both sides to make it work.
Currently another policy, or legislative initiative on Indian self-government was proposed by the federal officials. This legislation calls for the devolution of program responsibilities from the federal government to band governments and Indian institutions. However, in announcing the legislation the government has said very little about how the programs will be financed. Devolving program responsibility to band governments without providing the necessary financial recourses will place Indian governments in a worse fiscal dilemma.
Concurrently with its “program-devolution” moves, the federal government proposed to amend the Indian Act in order to establish a legislative basis for Indian self-government (20).(Bear, 62) It offered to develop a charter for bands that would allow bands to accept the responsibility now held by the minister of Indian Affairs for education, social assistance, land management, and band membership. The charter would also, within limits, allow bands to pass their own by-laws. However, the process of developing federal government policy on Indian government was significantly reduced due to the fact that federal spending was out of control, as Lambert Commission concluded in1997. As a result of this Commission, federal funding to Indian bands was drastically reduced. While the Ministry of Indian Affairs was trying to encourage and foster the development of autonomous Indian government, it was simultaneously forced by broader policies of government to impose stringent terms and conditions on how money would be spent, how it would be accounted for, and what systems will be put in place at the band level to achieve this accountability. Thus, the Lambert Commission’s recommendations on cutting down the federal finding frustrated the Indian government and undermined their trust in federal government
In conclusion, the federal government supports a very limited concept of Indian government. Its perception of Indian government is that Indians will exercise the powers the minister now exercises on behalf of Indians. The charter system that that the federal government proposed for the bands can enable a legal foundation to be put in place to allow Indian governments to exercise those powers on behalf of the minister at the reserve level. The implications of the proposed federal government legislation for Indian government mean the following: ‘nationhood’ is not acceptable; ‘sovereignty’ is not acceptable; a ‘municipal’ for Indians is not acceptable; ‘institutional’ level for Indians is not acceptable. Therefore, there is a wide gap between the Indian concept of Indian government and what the federal government is prepared to negotiate and approve.
BIBLIOGRAPHY:
1.Bear,Leroy. Pathways to Self-Determination. University of Toronto Press, 1984.
2. Concept of Aboriginal Title. www.iaa.gov.sk.ca/aboriginal/html/Common/glossary.htm
3. Dudley, Agard. A Call for Hawaiian Sovereignty. Naa Kaane O Ka Malo Press, Honolulu, 1993.
4. Havemann, Paul. Indigenous Peoples’ Rights. Oxford University Press,2000.
5.Macklem, Patrick. Indigenous Difference and the Constitution of Canada. Universitu of Toronto Press, 2001.
6. Royal Commission on Aboriginal People, Preliminary Report, CCGP, Ottawa, 1992,p.19
7. Slattery, Brian” Making Sense of Aboriginal and Treaty Rights” 79 Canadian Bar Review 196, October 2000.
8.Assembly of First Nations News. National Indian Brotherhood 2001.NAIIP News Path.
Remarks of National Chief AFN “Chief Matthew Coon Come”, 2001.
www.yvwiiusdinvnohii.net/News2001/ 0107/AFN010716ChiefRemarks.htm
POLI 398 Q/4 AA
FINAL TAKE-HOME EXAM
COMPARATIVE ANALYSIS OF ABORIGINAL AS WELL AS FEDERAL GOVERNMENT PERSPECTIVE ON NATIVE SELF- GOVERNMENT IN CANADA
