Recognition of Aboriginal Self-Government in Canada: The Changing Landscape
Canada, Aboriginal Self-Government, Aboriginal Rights, Implementing Legislation
Acceptance of the idea of Aboriginal self-government has increased dramatically in Canada in recent years. In 1969, the federal government refused to acknowledge the possibility of collective indigenous rights to land, let alone to self-government. The situation is significantly different today, politically, legally and practically. Federal policy recognizes the existence of an inherent right of self-government, and provincial governments have shown increasing willingness to enter into tripartite negotiations that include a self-government component. The British Columbia Supreme Court has upheld the constitutionality of Aboriginal self-government and, while the Supreme Court of Canada has not yet ruled on this point, its decisions leave open the possibility that constitutionally recognized Aboriginal rights encompass self-government (while at the same time counselling parties to negotiate, rather than litigate, such claims). In practical terms, increased control at the community level is becoming a reality both through comprehensive claims settlements that include self-government provisions, and through the growing number of services and programs that are administered and delivered by indigenous communities. Of course, all these developments, while remarkable, must be placed in proper historical context: indigenous peoples have protested the diminution of their power to govern themselves since the first version of the Indian Act was introduced in the 1850s. Continued implementation of self-government will require resolution of key legal, political and fiscal issues, and difficult discussions about what is and is not possible under the rubric of self-government. The focus of this piece, however, is on the magnitude of change over the past 40 years, and the factors that allowed such a sea change to occur.
Diana Ginn & Nicholas Hooper, "Recognition of Aboriginal Self-Government in Canada: The Changing Landscape" (2017) 46:4 Advocates' Q 395.