On the path to Indigenous self-government

"The meaningful recognition of Indigenous self-governance as one of the three orders of government is one of the great challenges of our era," said Katie Tucker.

She would know. Tucker is a legal advisor to Makivik, the treaty rights organization leading self-government talks on behalf of Nunavik's 14,000 Inuit with Ottawa and the province of Quebec. She described this work as “the most complicated matter” she has ever worked on during the May CBA Aboriginal Conference in Ottawa. 

The complexity arises partly from two modern treaties shaping the landscape of northern Quebec's Indigenous governance. The first is the 1975 James Bay Agreement (JBNQA), which stands as a pioneering accord. Covering the territory north of the 55th parallel is the 2006 Nunavik Inuit Land Claims Agreement (NILCA), including the Nunavik Marine Region and a portion of Labrador. 

Neither of these treaties enshrines self-government, despite the establishment of the Cree Regional Authority and the Kativik Regional Government to provide public services and oversee various aspects of governance, such as wildlife management, economic development, healthcare, education, and social services.

"These are public institutions that fall under Quebec's jurisdiction," said Tucker, who is counsel with Pape Salter Teillet. There are also 15 landholding corporations working alongside Makivik to own and manage specific lands owned by the Inuit communities of Nunavik.

Amidst all of this, the hoped-for creation of a new Inuit government for the whole region is likely to disrupt established institutions in the region's social, economic, and political fabric.

"Trying to re-imagine this institutional matrix that has been in place for over 40 years now to make space for a Nunavik Inuit government is very challenging," said Tucker. 

It's encouraging that the federal government has legislatively recognized the right of self-government, as has British Columbia. Ottawa now views the right to self-government as inherent and protected under section 35 of the Constitution Act. This position has received the blessing of the Quebec Court of Appeal and may soon be affirmed by the Supreme Court of Canada.  

But even assuming all the provinces were willing to recognize Indigenous self-government (they aren't), a significant obstacle is that institutional arrangements, once established, tend to persist over time. This is known as "path dependency." Indigenous institutions are rooted in the historical treaties and agreements that created them, as well as the unique circumstances of each community. They also vary from one nation to the next. Meanwhile, 92 % of over 600 Indigenous communities in Canada still don't have a core self-government agreement in place.

As Tim Raybould, a negotiator for First Nations, remarked on the panel, "There's just a ton of activity going on, and it's really confusing. And there's no game plan. This is the problem: There's no actual framework for how all of this fits together [...] It's been all over the place, and it's difficult for the federal government to coordinate it."

Drawing from his experience, Raybould had some opening advice to Indigenous nations aspiring to exit the Indian Act and take over areas of authority and jurisdiction. They must start by focusing on core governance, he said, and figuring out how to make laws. "What types of institutions do we need? What are our principles? What are our values and our Indigenous legal orders? And then, find a way to make sure that's all structured."

Tom McCarthy, the deputy minister of Indigenous Relations & Reconciliation in BC, supported the notion that self-government is an inherent right but suggests that it is "best expressed through an understanding of the relationships between governments and a coordinated understanding of those jurisdictions. Often, governance is viewed by Indigenous groups as a federal issue, said McCarthy. "It's not. If we're truly partnering in managing lands and resources, we need good governance."

According to Raybould, the next step is for Indigenous nations to determine which areas they want to have legislative authority over. Unlike the provinces, there's no clear list of jurisdictions for them. Raybould suspects that the Canadian government, provinces and Indigenous nations will eventually need to come together to clarify these matters through constitutional discussions. In the meantime, he advises concentrating efforts on immediate needs like land management and child and family services rather than tackling everything at once. "Self-government is as much about not governing as it is about governing," he said.

Raybould's third piece of advice is the proper drafting of laws. So far, only a few First Nations have had their laws tested in court, but this is likely to change. Poorly drafted, they can distract from the fundamental legal questions at hand. Raybould pointed out that there are lawyers whose expertise lies in drafting federal or provincial legislation, and Indigenous groups need access to the same level of expertise.

For his part, McCarthy highlighted the importance of balanced advice in decision-making. He warned that nations often rely too heavily on external legal advice and lack sound, committed, and impartial professional policy advice. He said this overreliance on legal services creates a narrow legalistic framework for addressing practical challenges, which are often better resolved by considering a range of practical options.

Raybould also emphasized the need for courts that can effectively enforce the law. He suggested they should be better equipped to handle the intersection of Indigenous legal systems and Crown law. "Our justice institutions are not quite there yet," he said.

Addressing fiscal capacity is also crucial to the success of self-governance. Raybould said that parties involved must be realistic about the cost of implementing programs and whether funding arrangements are robust enough to give Indigenous nations a "fighting chance" to govern well. Even when funding is available, there is a lack of skilled personnel to work in the civil service, especially considering the creation of so many new government organizations. Raybould urged Indigenous groups to work together through shared institutions that can provide the necessary support. "It's not to take away the power of an Indigenous government or whatever it might have negotiated; this is a practical need," he said.

Cooperation among Indigenous peoples has proven successful in advancing self-governance. For example, Tucker pointed to the MOU between Nunavik Inuit, Cree, and Naskapi in 2021 established a forum to address various matters, including wildlife management and self-government. "This was very much intended to be an act of Indigenous self-governance in Northern Quebec." 

Tucker pointed out it was not until 1939 that the Supreme Court recognized Inuit as Indians within section 91(24) of the Constitution Act, 1867. Even then, Canada and Quebec only truly established a presence in the region in the 1950s. Until then, the Nunavik Inuit functioned as a self-governing nation. "For the first 80 years of Canada's existence, Nunavik Inuit operated in accordance with their order of government alongside the federal and provincial divisions of power without much ado," said Tucker. "For Inuit to have fight so hard now for recognition of the right to self-government reflects a very discouraging erasure of this history."

Taking a broader perspective, Tucker believes that one of the boldest acts of self-government is for Indigenous peoples to draft their own constitution rather than relying solely on negotiating a self-government agreement. 

"It is a really good opportunity to do some soul-searching," she said. And as fraught a process as it may be, "Indigenous peoples need the space to envision and articulate their culture, values and preferred governance systems without outside interference."