First Nations were self-governing long before Europeans arrived in Canada. In 1876, the Indian Act dismantled traditional governance systems and imposed strict regulations on Indigenous peoples' lives. Section 35 of the Constitution Act, 1982, recognizes that Indigenous Peoples have an inherent, constitutionally-protected right to self-government – a right to manage their own affairs.
Self-determination is a core principal of self-government, the BC treaty negotiations process and is also reflected the United Nations Declaration of the Rights of Indigenous Peoples.
Under the BC treaty negotiations process, self-government will be established, and administered through the treaty. Self-government provisions may include education, language, culture, police services, health care, social services, housing, property rights, child welfare, and other provisions agreed to by the three parties. A First Nation implementing a modern treaty will be self-governing and will have a constitution and law-making authority over treaty land and provisions of public services. Treaty sets out how the First Nations governance interacts with the Canadian Constitution and the Charter of Rights and Freedoms will apply to First Nations’ governments as it does to all other governments in Canada.
There is no template for self-government; each First Nation establishes their own unique self-government arrangement. Self-government provisions may include:
- Language and
- Culture Health care and social services
- Police services
- Property rights
- Child welfare
For example, the Nisga'a Lisims government has four directorships: Lands and Resources, Fisheries and Wildlife, Finance, and Programs and Services—including child and family, and justice services.
The new governing structure will have a constitution and law-making authority over treaty land and provision of public services. Regardless of who has jurisdiction over any particular service after the treaty, the parties must agree on arrangements for its delivery.
Concerns have been raised that self government will lead to:
- Race-based rights that no other Canadians will have;
- Fifty or 60 homelands, each with its own laws;
- A justice-based system based on race; and
- Non-aboriginal people living on settlement land paying property taxes and not able to participate democratically in public decisions that affect them.
Provisions for self government will vary from treaty to treaty, guided by these principles:
- Self government will be exercised within the existing Canadian Constitution. Aboriginal peoples will continue to be citizens of Canada and the province or territory where they live, but they may exercise varying degrees of jurisdiction and/or authority.
- The Canadian Charter of Rights and Freedoms and the Criminal Code of Canada will apply fully to aboriginal governments as it does to all other governments in Canada.
- First Nations will have the ability to make laws pertaining to treaty land and the provision of public service for their people, including health care, education and social services.
- Some local laws like zoning and transportation will apply to all residents on treaty lands, but the majority of treaty laws will apply only to treaty citizens. Federal, provincial, territorial and aboriginal laws must work in harmony.
- First Nations will be required to consult with local residents on decisions that directly affect them (for example, health, school and police boards).
Constitutionally-protected vs. Municipal style Government
Under the BC treaty negotiations process, each First Nation negotiates self government provisions to meet their unique social, cultural, political and economic needs.
The BC Claims Task Force, established in 1991 to make recommendations for a made-in-BC treaty negotiations process, envisioned that self-government arrangements negotiated through the BC treaty negotiations process would have constitutional protection. Constitutionally-protected self government, like the Nisga'a Treaty, is actually passed as Canadian law, and cannot be changed unless all three parties-Canada, BC and the First Nation-agree. Constitutional protection ensures that self-governing powers established by the treaty cannot be taken away.
In a municipal-style of self government, governance powers are delegated by an act of Parliament and an act of the BC Legislature and have no constitutional protection. The Sechelt Indian Band Self-Government Act is an example of a municipal-style self-government agreement.
Treaties will replace Indian Act-imposed band governments with a government authority for all citizens of a Nation. Each treaty will define who is eligible and who can be enrolled. Most First Nations will have broader eligibility criteria than current status and non-status designations under the Indian Act. Eligibility criteria will likely require that an individual be of First Nation ancestry connected to the Nation or accepted as a citizen of the particular nation. All citizens of a First Nation can vote on a treaty.
Self-government strives to provide better opportunities for Indigenous people living within their traditional territory, while not excluding those Indigenous people who choose to live elsewhere.