The right of First Nations to self-govern is inherent.
Parliamentary researcher, J. Wherrett, explains that self-governance is inherent because it is a right bestowed on First Nations by the Creator, imbedded in their spiritual connection to the land and pre-existed European sovereignty.
Because it is inherent, First Nations do not need Canada’s permission to exercise their right to govern themselves. Nonetheless, First Nations typically negotiate self-governance agreements with federal and provincial governments.
Despite affirmation by the 1763 Royal Proclamation and treaties, the Indian Act ignored the inherent right to self-governance and imposed a foreign system of band council government.
Dr. Frances Abele found that the Indian Act does not support good democratic governance and created a host of governance problems for First Nations including the non-requirement of band council to be accountable to its electorate.
First Nations are aware that the Indian Act perpetuates governance problems and that meaningful change is virtually impossible to make under this law. They recognize their inherent right can be a pathway to effective governance.
Yet, according to the Indian Affairs website, only 43 of the 634 First Nations communities in Canada have concluded self-government agreements.
If self-government is guaranteed by section 35 of the Canadian Constitution and can lead to governance reform, why are more First Nations not implementing their inherent right?
Reasons are complex and range from unsettled land claims (as self-government requires money and economic development requires land) to federal/provincial resistance and red tape.
First Nations themselves are sometimes apprehensive about self-government. Part of the fear relates to funding because at the conclusion of a self-government agreement, the continuation of government funding becomes conditional.
They also worry that self-government will result in the loss of existing treaty and Aboriginal rights. Considering that the B.C. treaty process required First Nations to relinquish their Aboriginal rights in exchange for modern-day treaty, their concern is not farfetched.
Another reason some First Nations are cautious is because self-government could lead to assimilation. This is understandable since government has spent centuries trying to assimilate First Nations through various means. Mistrust can block the road to autonomy if First Nations are suspicious that government is trying to assimilate them under the guise of self-government.
But if the Indian Act remains and continues to control the minds and lives of First Nations people, implementing the inherent right and realizing its potential benefits, including governance reform, will be challenging.
As noted above, this challenge is exacerbated by real fears about self-government. What will it take for First Nations to have the courage to leave the Indian Act and implement their inherent right to self-governance?
Satsan Herb George, a Wet’suwet’en Hereditary Chief, former B.C. Regional Chief and founder of the National Centre for First Nations Governance, believes that educating First Nations people about the ugly truth of the Indian Act and building the capacity they need to transition out the act and into self-governance, is the best way to go.
Given the ability of fear to stop autonomy in its tracks, capacity building must include re-discovering the advantages of self-rule and alleviating the anxiety that First Nations, federal and provincial governments have about implementing the inherent right to self-governance.
Terry Poucette is a member of the Wesley First Nation and a PhD graduate in public administration (University of Victoria). She is now an assistant teaching professor at UVic.