First Nations self-government overdue says law expert
Currently, both the government and courts have to rely on the Indian Act, crafted in 1876
A Canadian indigenous law expert says First Nations self-government is long overdue and will benefit both the Crown and indigenous people in this country.
John Borrows is the Canada Research Chair in Indigenous Law and a law professor at the University of Victoria. He spoke about the issue of self-governance in Fredericton this week.
Since the constitution was signed, he said the Supreme Court of Canada has issued about 45 or 50 judgements regarding indigenous rights, but in all those decisions they have skirted around the issue of governance and whether aboriginal people have the right to self government.
But he said it has been implied.
"The courts are requiring the Crown to consult and accommodate aboriginal peoples, they are saying they are landowners and that you have treaty rights to hunt and fish, and make certain decisions in relationship to that," he said.
"These all imply governance."
Borrows said it's time to go to the next step and declare that aboriginal peoples have the right to self-government in Canada.
"When that's clear, we'll get rid of some of the internal challenges that aboriginal people have started to be cleaned up."
Currently, both the government and courts have to rely on the Indian Act to help make decisions. It's legislation passed in 1876 and Borrows said it is in no way equipped to meet the challenges of modern-day life.
"If aboriginal people were recognized as having the right to self governance under the constitution, we'd be able to get away from that Indian Act," he said.
He said self-governance would also clear up any confusion over who governments should consult with since there would be a clear process. He warns that self-governance wouldn't mean all issues would disappear, but it would outline a process for dealing with them.
"Until self-governance is recognized more explicitly, we really don't have a way of organizing that dissent and organizing those differences in opinion, not that they'd go away, but it would at least throw up some clarity," Borrows explained.
Critics have said New Brunswick is lagging behind in recognizing aboriginal peoples rights, but so is the rest of Canada he said. But the first place to start for improvement is the 94 calls to action from the Truth and Reconciliation Commission.
"A lot effort went in over many years to be able to derive a sense of what the priorities should be," Borrows said.
Meeting nation to nation
Borrows said under self-governance, meeting nation to nation would become better defined.
"What you really need underneath a nation to nation relationship are the protocols for diplomacy," he said.
"You would have channels that are both explicit and even back channels to be able to get information with one and other."
He said self-governance would give both sides the necessary framework to hold each accountable.
Borrows points to countries like Australia, New Zealand and Norway and the self-governance aboriginal peoples in those nations have.
"Again, all we have in Canada is the Indian Act. We're very impoverished and of course the provinces aren't much better."
We're very impoverished- John Borrows
Not only is the Indian Act out of date, but Borrows said you have to remember it was designed to assimilate indigenous peoples.
"You can't go forward with a respectful process when you've got a document that was designed to erase the presence of so called indians in this country," he said.
Borrows said he is optimistic Canada is very close to moving forward with self-government.
"The Crown wants it and First Nations themselves are in the grassroots level experimenting and finding their feet on this," he said.
He said Canada is on the cusp of the change that is needed and the federal government is committed to changes both big and small.
Crown equally responsible
"It's not just in parliament we are seeing this, education, health care, different social services, they are all being pushed, so it's not just a top down edict that's going on."
He does hope self-governance leads to more trust, both inside and outside the First Nations community.
"I think there's a lot of mistrust by First Nations, Inuit and Metis people about their governments. Part of that is born from the fact they are living with this Indian Act that's not connected to their ways of processing disputes," he said.
From trust comes respect and Borrows said the Crown is equally responsible to help create that atmosphere.
"This is not just an aboriginal issue. It's time responsible government was extended to all Canadians."
- An earlier version of this story featured an image of a document which was said to be the Indian Act. However, the wrong document was depicted and has therefore been removed.Mar 07, 2016 4:10 PM AT