Canada’s constitution established the right to self-government for Indigenous groups

Following over a century of imposed colonial governance, the inherent right to self-government for Indigenous peoples in Canada was recognized in 1982. Subsequent agreements have resulted in provisions of self-government and co-management with other governments. There are 25 self-government agreements across Canada, two education agreements, and around 50 ongoing negotiations. Self-government is seen by many groups as a means to preserve culture and to reclaim control over land, resources, and practices.

In 1982 the Canadian government enacted a new constitution to establish constitutional independence from the United Kingdom, and Section 35 established the inherent right to self-government for Indigenous peoples. This right does not establish sovereignty, but aims to “enhance the participation of Aboriginal peoples in the Canadian federation, and ensure that Aboriginal peoples and their government do not exist in isolation, separate and apart from the rest of Canadian society.”¹

Implementation

The adoption and implementation of the right to self-government has been the result of years of advocacy and legal challenges brought forward by several Canadian Indigenous groups. While the right exists in principle, groups must engage in complex and often lengthy treaty negotiations to claim the right to self-government. Ultimately the federal government controls the assignment of self-governance rights and the burden of proof is on Aboriginal groups to “persuade government that there is a credible claim to aboriginal title.”² However, during treaty negotiations the Canadian government has a duty to consult, and if necessary accommodate, the interests of groups yet to claim their rights.

Based on a Supreme Court ruling in 1996, a test was established to determine which rights are protected under Section 35 of the constitution, and a second court ruling held that claims for self-government were among them.³ According to the Van der Peet test, claims under Section 35 must relate to practices, customs, or traditions that were integral to a distinctive culture prior to contact with Europeans.⁴

Treaty agreements that establish self-government are all unique, recognizing that different Indigenous groups have different historical, cultural, political, and economic circumstances.⁵ One of the larger scale agreements, the Nunavut Agreement, established self-government for an entire territory of Canada and all peoples residing in it, whereas others are specific to groups that may occupy land with multiple claims or agreements that relate to specific issues, such as education. Most negotiations relate to establishing jurisdiction or authority over matters internal to a group, their culture, and essential to their operation as a government or institution. Based on this approach, there are some areas that fall under self-government (membership, marriage, social services, policing, natural resource management, taxation among others) and other areas that are considered to have impacts beyond communities, and therefore not included in self-government (divorce, justice, environmental management, labor and training among others).⁶

Cost

The government of Canada co-develops fiscal policy to support self-government, with a commitment to “achieving reconciliation with Indigenous peoples through a renewed, nation-to-nation, government-to-government and Inuit-Crown based recognition of rights, respect, co-operation, and partnership.”⁷ The policy also commits the government to achieve equity in socio-economic outcomes between Indigenous and non-Indigenous peoples, with an explicit reference to the role the legacy of colonization plays in driving inequalities. The latest federal budget (2022) committed CAD 11 billion (approximately USD 8.12 billion) over six years for Indigenous priorities. The Canadian government also offers grants to support up to 100 percent of activities related to treaty negotiations for land claims and claims to self-government.⁸

Assessment

Self-government agreements can have wide reaching impacts through increasing capacity to govern internal affairs and conferring greater decision-making power over matters that affect communities.⁹ However, there are many ongoing barriers to achieving equality and inclusion among Indigenous peoples in Canada, and ongoing injustices that require multiple interventions, such as the legacy of the residential school system that forcibly separated indigenous children from their families and the epidemic of violence against indigenous women.

A recent study found that comprehensive land claims agreements in combination with self-governance agreements led to an increase in annual average household incomes in affected communities by CAD 11,000 (USD 8,000), leading to a decrease in the Gini coefficient of around 2.0-3.5 percentage points.¹⁰ The latest government evaluation of indigenous self-government (2018) found that attaining a self-government agreement led to a 41 percent increase in total income for unregistered Indigenous men, 13 percent for Indigenous identity men, but no measurable effect on women’s total income.¹¹ Self-government agreements also led to small positive impacts on labor market participation, reduced housing crowding, increased community well-being, and “a renewed sense of pride in their governments, particularly in relation to the right to elect their own government, independent decision-making capacity, and being accountable to their own citizens.”¹²

Additional Information

Indigenous peoples practiced diverse forms of government for thousands of years before the arrival of colonial settlers to Canada. The Indian Act of 1876 imposed a colonial governance system that continues to determine how most Indigenous peoples are governed in Canada.¹³

Tags

• Canada
• High-Income Country
• Indigenous Peoples
• North America
• Political & Civic Participation