Inherent Right of Self-Government

… a core concept in Governance and Institutions and Atlas100

Concept description

The Government of Canada (reference below, INAC policy statement on right) recognizes the inherent right of self-government as an existing Aboriginal right under section 35 of the Constitution Act, 1982.

The 1995 (and still current) policy statement

The government’s policy was announced in 1995 and is described by the Library of Parliament (reference below) as follows:

Key principles

“Key principles of the policy are:

• the inherent right is an existing Aboriginal right under section 35 of the Constitution Act, 1982.
• self-government will be exercised within the existing Canadian constitution.
• the Canadian Charter of Rights and Freedoms will apply to Aboriginal governments.
• federal funding for self-government will be achieved through the reallocation of existing resources.
• where all parties agree, rights in self-government agreements may be protected in new treaties under section 35 of the Constitution, as additions to existing treaties, or as part of comprehensive land claims agreements.
• laws of overriding federal and provincial importance will prevail, and federal, provincial, territorial and Aboriginal laws must work in harmony.

Subjects for self-government

“Under this policy, the range of subjects that the federal government is willing to negotiate includes matters internal to the group, integral to Aboriginal culture, and essential to operating as a government or institution. Examples are the establishment of government structures and internal constitutions; membership; marriage; Aboriginal languages, culture and religion; education; health; social services; policing; enforcement of Aboriginal laws; and others. In a number of other areas, such as divorce, the administration of some justice issues, gaming, and fisheries co-management, the federal government is prepared to negotiate some measure of Aboriginal jurisdiction. A number of other subject matters are not open to negotiation, however. These can be grouped under two headings: 1) powers related to Canadian sovereignty, defence and external relations; and 2) other national interest powers. Financing self-government would be the shared responsibility of federal, provincial, territorial and Aboriginal governments.”

Detailed policy statement

The first two sections of the Indigenous and Northern Affairs Canada policy statement (reference below) read as follows:

The Inherent Right of Self-Government is a Section 35 Right

“The Government of Canada recognizes the inherent right of self-government as an existing Aboriginal right under section 35 of the Constitution Act, 1982. It recognizes, as well, that the inherent right may find expression in treaties, and in the context of the Crown’s relationship with treaty First Nations. Recognition of the inherent right is based on the view that the Aboriginal peoples of Canada have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and their resources.

“The Government acknowledges that the inherent right of self-government may be enforceable through the courts and that there are different views about the nature, scope and content of the inherent right. However, litigation over the inherent right would be lengthy, costly and would tend to foster conflict. In any case, the courts are likely to provide general guidance to the parties involved, leaving it to them to work out detailed arrangements.

“For these reasons, the Government is convinced that litigation should be a last resort. Negotiations among governments and Aboriginal peoples are clearly preferable as the most practical and effective way to implement the inherent right of self-government.

Within the Canadian Constitutional Framework

“Aboriginal governments and institutions exercising the inherent right of self-government will operate within the framework of the Canadian Constitution. Aboriginal jurisdictions and authorities should, therefore, work in harmony with jurisdictions that are exercised by other governments. It is in the interest of both Aboriginal and non-Aboriginal governments to develop co-operative arrangements that will ensure the harmonious relationship of laws which is indispensable to the proper functioning of the federation.

“In light of the wide array of Aboriginal jurisdictions or authorities that may be the subject of negotiations, provincial governments are necessary parties to negotiations and agreements where subject matters being negotiated normally fall within provincial jurisdiction or may have impacts beyond the Aboriginal group or Aboriginal lands in question. Territorial governments should be party to any negotiations and related agreements on implementing self-government north of the sixtieth parallel.

“The inherent right of self-government does not include a right of sovereignty in the international law sense, and will not result in sovereign independent Aboriginal nation states. On the contrary, implementation of self-government should enhance the participation of Aboriginal peoples in the Canadian federation, and ensure that Aboriginal peoples and their governments do not exist in isolation, separate and apart from the rest of Canadian society.”

Sources

Indigenous and Northern Affairs Canada (1995, webpage last updated 2010), The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government, at https://www.aadnc-aandc.gc.ca/eng/1100100031843/1100100031844, accessed 2 October 2016.

Jill Wherritt (1999), Library of Parliament, Aboriginal Self-Government, at http://www.lop.parl.gc.ca/content/lop/researchpublications/962-e.htm, accessed 2 October 2016.

Topic, subject and Atlas course

Indigenous Governance in Governance and Institutions and Atlas100.

Page created by: Ian Clark, last modified 2 October 2016.

Image: Indigenous and Northern Affairs Canada (2010), The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government, at https://www.aadnc-aandc.gc.ca/eng/1100100031843/1100100031844, accessed 2 October 2016.