Implementing Aboriginal Self-Government - Report Example

Introduction Aboriginal self-government has been a prominent issue over the past several decades. The Aboriginals had their own distinct political systems and institution prior to contact with Europeans. The Europeans totally ignored these political systems and institutions as the federal government tried to strengthen its institutions and unify the nation. As a result, different Euro-Canadian political ideals were imposed on the Aboriginal societies. However, the British North American Act of 1867 acknowledged the existence of distinct provinces especially of the Québec and Aboriginals although according to Dahbour the Aborigines were not included in the process (1-18). Section 91 (24) of the Act gave federal government jurisdiction over Indians and lands reserved for Indians. Since then, Canada has undergone various constitutional reforms, legislative and policy changes. The Aboriginals were formally recognized in the Canadian constitution of 1982. Section 35 of the Constitution Act, 1982 which stated “existing aboriginal and treaty rights of aboriginal people of Canada are hereby recognized and affirmed” (Russell 3). Here Aboriginal People were defined as Indians, Inuit and Métis and together they comprised a population of 1,377, 900 in 1999. Nunavut became a territory in 1999. The Aboriginal People view self-government as an answer to most of the problems afflicting their communities. However, the question that needs answering is; is this self-government a feasible or practical alternative for Canada? This essay will argue that it is an impractical alternative as the new political system in Canada does not leave room for a tripartite form of government and the Aborigines would be assimilated into the system. Furthermore, such efforts have failed in the past especially due to conflicting views among the Aboriginal parties themselves as to what constitutes self-government and how to about instituting such government. The constitution Act, 1982 recognized and affirmed the existing aboriginal and treaty rights. The federal government with consent of provinces (EXCEPT QUEBEC) allowed the British parliament to amend authority to pass laws affecting Canada. Thus Canada repatriated control over its constitution thereby outlining the future development for Aboriginal in Canada people (Russell 5). The Canadian Charter of Rights and Freedoms was enshrined in the constitution as the supreme law of the land but since then Aboriginals have been fighting for inclusion in other areas of the constitution. Prior to the passing of the Act, the Indians were under the First Indian Act which was passed in 1876 (Wherrett n.p). Inuit was brought under federal responsibility in 1939 while Métis was not under any jurisdiction federal or provincial. The 1867 Act had established two levels of government: federal and provincial and left no room for a third form of government. The government adopted a policy of assimilation up to 1950s thus ignoring most of the important ideals held by Indians. The mandate to make Decision was given the minister of Indian affairs and northern development. Further policy changes were made in 1969 where devolved services and programs as well as the special status for Indians were terminated (Wherrett n.p). Lack of the inherent right of Aboriginals as Aboriginal people led them to begin agitating for self-government in the 1970s. Though Aboriginals and aboriginal treaty rights were recognized in the Constitution Act, 1982, different views existed as to what constituted aboriginal self-government. For some it was a way of solving their problems but to politicians it was denying them some of the powers. According to Russell (3) some supported the Act due to sympathy for the Aboriginals while others rejected it out of fear of losing their homes. Many of the Canadians Aboriginals included did not have a real understanding of the term self-government. Section 35 of the Act was exclusively for dealing with Aboriginal affairs. It affirmed Aboriginal treaty rights and defined the people of Canada as Indian, Inuits and Métis. The Indians was divided among those with treaties and those who did not have. The Métis on the other hand, were divided by the issue of land base. They differed over whether prairies history and lifestyle were defining characteristics than blood relations while the Inuit were divided according to how lands were dispersed and governed (3). The Nunavut territory joined in 1999 to reconcile some of these differences among Aboriginal People. The Act also stipulated clearly that treaty rights included rights that existed in way of land claim agreements and that the Aboriginal and treaty rights were to be gender neutral. The first ministers were to hold conferences to identify and define the rights of Aboriginal people but as it shall be proven later, these ministers were not willing to engage in such issues. By the time the final conference was held in 1988, no proposals had been presented by these leaders or ministers. Worse still, no constitutional amendments had been effected for identification and definition of rights of Aboriginal people (Russell 5). The three parties in unison thus decided to push for self-government as it was the only issue uniting them. The issues raised by Aboriginal governments in their quest for self-government include unfair treatment by the federal government leading to many of them being incarcerated in prisons (Dahbour 1-18). They also feel that they can manage their communities better than federal government. Aboriginals also had a long history of occupation of these lands before settlement by Europeans hence they have an inherent right to govern themselves. However, this was not going to be a smooth ride as most of the areas they wanted jurisdiction for are already under the jurisdiction of provincial governments under the mandate of the 1867 constitution Act. Any changes to the constitution or legislative would require the input of provincial governments. This partly because the federal government cannot negotiate powers of provincial governments under section 92 of the Constitution Act, 1982 and partly because these areas are in provincial jurisdiction (Russell 41). It is thus practically impossible to have bilateral agreements with the federal government about self-government. Aboriginals feel they need to be in control of justice system, health care, education, child custody, tax laws and marriage which are neglected by federal and provincial governments. Even though federal policy was to recognize the inherent right of aboriginals to self-determination, there is no guarantee that such a policy would be legally binding as evidenced by the Quebec secession issue. In this case, the government stated it was not against the secession but this was not to mean it had surrendered its right over Quebec or given it permission to secede as this would not be legally binding (McCormick n.p). Aboriginals can expect no different treatment from the Quebeckers hence their plight is sealed. Getting provincial support for self-government would be next to impossible as it would be like usurping their powers and rendering them toothless. In this sense, self-government if unfeasible. As stated earlier, Aboriginal people have very diverse views owing to their different histories and culture. Those from the prairies often differed with others on various issues. This is why despite many First ministers’ conferences; there was nothing to write home about. Each party represented its proposals depending on its situation and culture hence they could not agree on a common objective (Wherrett n.p). This gave the non-aboriginals a chance of rejecting the proposals while at the same time not producing any proposals from their governments. The First ministers were also not keen on reforms hence no proposal originated from them during the conferences regarding Aboriginal rights. The three parties (Indians, Inuit and Métis) had different views as to what self-government meant. To some (Indians in prairies provinces) it is just a matter of gaining jurisdiction over some issues through treaties which they view as binding to their past experience with Indian Treaties. However, the Inuits and Métis wanted sovereignty and self-determination. No wonder the different parties engaged in separate negotiations with federal government. The Aboriginals were also excluded from negotiations that led to Meech Lake Accord which was defeated in 1990. The Penner Report set basis for constitutional negotiations as it entrenched self-government into the constitution. For constitution protection, an amendment to the constitution was required hence the 1992 Charlottetown Accord. The Accord was negotiated by Aboriginal organizations, provincial premiers, and territorial government leaders. Since not all members of the Aboriginal community had approved the negotiation process in the first place, and also no agreement on its content, the Charlottetown Accord was defeated in a 1992 referendum. The differences between the parties thus make self-government an unfeasible project. The fact that the 1867 Constitution Act did not leave room for a third form of government make self-government a distance mirage to accomplish and has contributed to failure of any efforts to entrench self-government in the constitution. The Report on Royal Commission on Aboriginal Peoples of 1996 recognized aboriginal governments as one of the three orders of government in Canada giving room for new legislation n by federal government (Wherrett n.p). The commission outlined various measures to be taken to achieve self-government without having to amend the constitution. The commission recommended elimination of the Department of Indian Affairs and position of Minister of Indian Affairs and a new department of aboriginal relations set up to negotiate and manage agreements with aboriginal people. The government responded by recognizing inherent right to self-government. In the issue of restructuring federal institutions, the government indicated further discussion on the issue. It was also to consult with Aboriginals, provinces and territories on a framework for jurisdictional and intergovernmental arrangements. The self-government was to be exercised within the existing Canadian constitution and Canadian Charter of Rights and Freedoms would still apply to Aboriginal Peoples. Funding to self-governments was to be through reallocation of existing resources. Some issues such as Canadian sovereignty, defense and external relations were however not open to negotiation. In this sense, Aboriginals would never have self-government in real sense. Self-government according to Russell (44) would only be achieved if section 35 (1) is amended to meet four conditions. First, Aboriginal people exist as domestic dependent nation. Secondly, conflict between aboriginal government and laws of federal or provincial governments, laws of aboriginal government prevail. Thirdly, criminal jurisdiction of parliament of Canada will prevail in Aboriginal communities unless otherwise acted upon by aboriginal government. Lastly, subsection 3 to remain in force for ten years following enactment of this section. This was contrary to what the Royal Commission envisaged. To this effect, it is not practical to achieve self-government. Several initiatives have been on progress to achieve self-government through negotiations but even these have not resulted in self-governance. These negotiations are part of land claim agreements and Cree and Naskapi were the fist nations to negotiate under these terms. The 1984 Cree-Naskapi Act replaced the Indian Act and limited the day-to-day administration by federal government. The Yukon First Nations on the other hand signed Umbrella Final Agreement (UFA) in 1993. This gave authority to enact laws for citizens in regards to language, culture, health, social and welfare services. This cannot translate to self-governance as Canada federal government still holds much of the powers. This means such self-government jurisdiction with federal and provincial governments would be unproductive and limited in scope; it is very restrictive than that of Charlottetown Accord. Aboriginals need for recognition of land base, Aboriginal title, and treaty enforcement always puts the Aboriginal parties at loggerheads as they cannot agree on how to achieve these entitlements (Schouls 179). It is like attempting to reconcile collective and individual rights of Aboriginal people since they are distinct in terms of individual problems but similar when it comes to inherent rights. All these initiatives aim at solving part of the problem and not achieving full self-government for the Aboriginal people. This proves that self-government cannot and will not be achieved unless a constitutional amendment formally recognized within the Canadian constitution is made (Hogg & Turpel 187-224). What Aboriginal governments are involved now by signing treaties is just in the name of self-government are just piecemeal accomplishments. It also means Aboriginals have no idea of what is meant by self-government, are ignorant or have accepted the fact that self-government is impractical to achieve. Self- government “should not be delegated” (Russell 440). Perceptions by Aborigines and non-Aborigines themselves also make self-government unfeasible. The Aborigines are often regarded as a ‘disappearing race’ as they get assimilated into Canada. It is believed that they would eventually abandon their identity or give up their rights (Russell 12). This was especially during Trudeau government. Even in areas that Aborigines are majority their presence is not felt in pushing their agenda hence are regarded as insignificant minorities (McCormick). Aborigines also are perceived as lacking capability to self-govern due to their primitivism. Some may be enlightened but do not take leading roles in governance. As such, attaining self-government is a very far goal to achieve, it is impractical. Conclusion The Aboriginal people have been fighting for self-government for decades without success. The Constitution Act, 1982 section 35 (1) recognized and affirmed the Aboriginal people’s inherent right to self-government and defined Aboriginals as Indians, Inuits and Métis. However, each tribe consists of sub tribes with very different views and ideas regarding various issues affecting the communities hence making it almost impossible to agree on the contents of self-government. These communities are often neglected by federal and provincial governments when it comes to issues of healthcare, education, welfare services and justice system hence agitate for jurisdiction over such matters. These they have been able to gain through treaties after tripartite negotiations with aboriginal organizations, federal and provincial governments. However, the bone of contention is how to achieve self-government as these treaties only lead to restrictive jurisdictions and whether self-government is feasible. I argued that self-government is not visible as it requires a constitutional amendment formally recognized within the Canadian constitution which is difficult to achieve given the nature of aboriginal tribes and the federal and provincial mandates given under constitution Act 1867. Aboriginal peoples understand self-government differently hence different ways of achieving it while constitution amendment lacks support from federal and provincial governments who have own interests to safeguard. An example is the Charlottetown Accord which was defeated in 1992 referendum. Works Cited Dahbour, Omar. The Ethics of Self-Determination. In Carol Gould and Pasquale, Paquino(eds). Cultural Identity and the Nation-State. Lanham, Maryland: Rowman & Littlefield, 2001.pp 1-18. Hogg, P. and M.E. Turpel. Implementing Aboriginal Self-Government: Constitutional and Jurisdictional Issues. The Canadian Bar Review. Vol. 74. 2 (June 1995):187-224. McCormick, Christopher. Self-Government for Aboriginal People. Canadian Parliamentary Review 13.4 (1990). http://www.revparl.ca/english/issue.asp?param=135&art=878 Russell, Dan. A Peoples’ Dream: Aboriginal Self-Government in Canada. Toronto: CBS Press, 2011. Schouls, Tim. Shifting Boundary: Aboriginal Identity, Pluralist Theory, and the Politics of Self-Government. UBC Press, 2003. Wherrett, Jill. Aboriginal Self-Government. Parliament of Canada. June 17, 1999. Web. March 2, 2014. http://www.parl.gc.ca/content/LOP/ResearchPublications/962-e.htm Read More