Traditional Governance

In this section, there are several pieces of legislation that relate to Indigenous self-governance. 

In Canada, legislation plays a large role in defining the legal and political framework within which Indigenous self-governance operates. The extent of legally-recognized Indigenous self-governance is largely determined by the legislation and policies enacted by the federal and provincial governments.

The Constitution Act, passed in 1867, describes the basic structure of Canada's government.

Currently, the Indigenous and treat rights (including the right to Indigenous self-governance) are protected under Section 35 of the  Constitution Act, 1982. Section 35(1) reads:

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

The UBC site Indigenous Foundations explains Section 35 further at What is Section 35 of the Constitution Act?

The Indian Act is the legal base for the Canadian government's authority over First Nations, including its ability to replace traditional Indigenous forms of government with elected chiefs and band councils with limited powers. 

Some of the ways in which the Indian Act has been used to control Indigenous self-government include:

• Imposing a band council system
• Prohibiting traditional governance structures such as hereditary chiefs and councils
• Controlling land and resources

Relevant sections include:

• Section 2: This section defines terms such as “band” and  “council of the band” and details the powers granted to a band or council.
• Section 74-80: These sections set out the process for electing band councils, including the qualifications for eligibility, the nomination process, and the voting procedures.
• Sections 81-86: These sections detail the powers of the council of a band, with a focus on the ability to make by-laws.

Regulations made under the Indian Act that deal with the band council system include:

• Indian Band Council Procedure Regulations: These regulations provide a framework for the governance and decision-making of band councils, such as procedures for calling and conducting band council meetings.
• Indian Band Election Regulations: These regulations govern band elections, providing rules and procedures for the election of chiefs and councilors.

"The Declaration is a comprehensive statement addressing the rights of Indigenous peoples. It was drafted and formally debated for over twenty years prior to being adopted on 29 June 2006 during the inaugural session of the Human Rights Council. The document emphasizes the rights of indigenous peoples to maintain and strengthen their own institutions, cultures and traditions and to pursue their development in keeping with their own needs and aspirations." 

 

- From "Frequently Asked Question: Declaration on the Right of Indigenous Peoples"

Canada signed UNDRIP in 2016, and in 2020 introduced legislation to align Canadian law with UNDRIP  (see United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14)

British Columbia adopted UNDRIP in 2019 (see Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44)

Articles that are particularly relevant to self-governance include:

• Article 4: Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.
• Article 5: Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

The Canadian Charter of Rights and Freedoms is a constitutional document that sets out the fundamental rights and freedoms of individuals in Canada. Importantly, the Charter binds all governments in Canada including Nations who self-govern. Other legislation like the Canadian Human Rights Act and the Criminal Code also apply.

Section 25 includes a provision that the Charter must be interpreted in a way that respects Aboriginal and treaty rights, including the inherent right to self-govern.

This Act ratifies Under the Framework Agreement, First Nations that opt into the First Nation Land Management Agreement are granted the authority to manage and control their reserve lands and resources. This includes the ability to develop their own land codes and laws, as well as the authority to manage their own lands and resources without the need for approval from the federal government. In 2022, this Act replaced the First Nations Land Management Act.

This is a Government of Canada policy framework that sets out the principles and processes for negotiating self-government agreements. It acknowledges that Indigenous peoples have an inherent right to self-government, and recognizes that there are various approaches to self-government.