Nettheim, Garth --- "Canadian Studies Review - Aboriginal Self Government" [1986] AboriginalLawB 55; (1986) 1(22) Aboriginal Law Bulletin 8

• Canadian Studies Review-Aboriginal Self Government
• Papers For Phase One Of The Project Aboriginal Peoples And Constitutional Reform

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Canadian Studies Review -

Aboriginal Self Government

Papers for Phase One of the project Aboriginal Peoples and Constitutional Reform

by the Institute of Intergovernmental Relations

Queen's University, Kingston, Ontario, Canada

Reviewed by Garth Nettheim

Aboriginal rights are taken seriously in Canada, even to the point of being `recognised and affirmed' in the 1982 Constitution Act (s.35(1)). The Constitution also identifies the holders of those rights as the 'Indian, Inuit and Metis people of Canada'. (s.35(2)). What the Constitution does not do is to define what those rights are. Instead, it establishes a process for the purpose - the First Ministers' Conference (FMC) comprising the first ministers of Canada, the ten provinces and the two territories plus leaders of four national native organisations (s.37).

This is the context in which the project on Aboriginal Peoples and Constitutional Reform was launched by the Institute of Intergovernmental Relations at Queen's University, Kingston. Phase One of the project focussed on Aboriginal Self-Government. It comprised a number of papers, commissioned from leading Canadian scholars, and a two-day workshop held in February 1985 involving the 17 FMC participants, authors of the papers, and a number of other' invited experts'. Being in Canada at the time, I had the good fortune to be invited to attend the workshop.

The papers themselves are of very considerable interest. David Hawkes' discussion paper sets out to identify and elaborate different models of self-government. All models are within the Canadian political system-secession appears not to be an issue. Hawkes states: 'What is clear is that no single approach or model will meet the needs or aspirations of all aboriginal peoples. A "universal formula" is doomed to failure'. However, all of the varying proposals for self-government put forward by aboriginal peoples presuppose a land base. Certain proposals not involving a land base, such as guaranteed aboriginal representation in legislatures, or advisory bodies to governments (such as Australia's NAG) are not treated as constituting self-government. Hawkes identifies half a dozen models for consideration and also discusses the various means by which such forms of self-government might be established.

David A. Boisvert's background paper 'Forms of Aboriginal Self-Government', looks at a range of systems in various parts of the world. He concludes that any national policy on aboriginal self-government to emerge from the FMC process:

should be flexible enough to allow aboriginal self-government to be implemented in a number of different ways. Each form of aboriginal self-government implies a somewhat different implementation procedure.

Noel Lyon's background paper is entitled 'Aboriginal Self-Government. Rights of Citizenship and Access to Governmental Services'. He, too, agrees that no standard model can be applied, and, like Hawkes, he sees a land base as essential. He develops ideas of possible forms of self-government for different sorts of communities. He focuses particularly on the issue of delivery of services (e.g. education, culture, justice, economic development, housing, health care and social services) and sees a need for a quite different definition of citizenship.

It is not just a matter of substituting a native community for a municipality and setting it in the same governmental structure. Rather, it is a case of withdrawing native communities from the usual arrangements into a unique set of relationships with other governments, with a wide range of possible variation in the various native communities. (p. 7)

Lyon looks at US experience and extracts several themes including: 'the importance of having decisions made in each native community'; and 'economic development is crucial to the success of self-government'. His discussion of the applicability to Canada of the 1977 Final Report of the American Indian Policy Review Commission (set out as an Appendix) and of reports of its Task Forces is of particular interest.

Brad Morse's paper is called 'Aboriginal Self-Government in Australia and Canada'. He finds in the Australian experience a number of developments worthy of consideration in Canada. One is the concept of the Aboriginal Development Commission. Another is the three-part modern definition of who is an Aboriginal ('a person of Aboriginal descent, albeit mixed, who identifies himself as such and who is recognised by the Aboriginal community as an Aboriginal' per Justice Deane in Commonwealth v Tasmania).

Morse also discusses in detail modern Northern Territory and South Australian land rights legislation, joint management schemes for national parks, and regimes for protection of sacred sites. He notes, too, the Australia Law Reform Commission's work on recognition of Aboriginal Customary Law. He also commends to the attention of Canadians.

the Aboriginal and Islander legal service programs, health organisations, hostels and co-operative housing projects, community colleges, post-secondary education financial assistance, and the value of a national research centre in the form of the Australian Institute for Aboriginal Studies. (p. 109)

However, he makes the point that there is relatively little of interest on the Australian scene:

concerning the precise scope of Aboriginal government legislative and executive powers, or the foundations of these governments ... excepting land use and management. The American Indian tribal governments provide a far more useful source of information and inspiration on this particular subject. (p. 109)

The American experience is the topic of Douglas Sanders' paper 'Aboriginal Self-Government in the United States'. He provides an informative history of the various phases of US law and policy coming down to the modern (post 1960) period of 'self-determination'. He tells us that 'United States Indian law and policy is marked by high levels of rhetoric but greater political marginality for Indians than is the case in Canada'. (p. 61) A major contrast has been the American founding principle that 'the jurisdictional rights of the tribes are recognised as inherent sovereign rights. ... It 'makes tribal reality the first premise, not Congressional power'. (p.62) In both countries Sanders sees as a major failure that there has been little serious focus on economic development in the last two decades.

The largest of the background papers of by Bryan Schwartz on 'First Principles: Constitutional Reform with respect to the Aboriginal Peoples of Canada 1982-1984'. He examines the issues that came before the 1983 and 1984 First Ministers' Conference (FMC) on Constitutional Aboriginal Matters and also the negotiation process itself. The paper presents almost a blow-by-blow account of the several key meetings and is very informative, nicely opinionated and highly readable.

The last of the background papers, by David Hawkes, is entitled 'Negotiating Aboriginal Self-Government. Developments Surrounding the 1985 First Ministers' Conference', and carries the story beyond the point where Schwartz left it and, indeed beyond the Project's February 1985 Workshop. In fact, the author describes the paper as the first publication in Phase Two of the Institute's project. The papers covers the negotiations on Aboriginal self-government from September 1984 (the election of the new Mulroney federal government) to April 1985 (the third FMC) and June 1985 (a follow-up meeting). The result has been a departure from the previously contemplated 'top-down' approach-to entrench the right to aboriginal self-government in the Constitution and then negotiate individual agreements-and adoption, instead of a 'bottom-up' approach - negotiations will proceed at local, regional or provincial/ territorial level and may subsequently be entrenched in the Constitution. The next (and last?) FMC is scheduled for 1987. Negotiations before then will 'be concerned with involving aboriginal peoples in the design and administration of public services previously supplied by Federal, provincial and territorial governments'. (p. vi) Phase Two of the Institute's project is entitled 'Aboriginal Self-Government: Can it be implemented?'.

Noel Lyon's paper has a passage worth repeating:

Since the 1960's aboriginal peoples have been asking for ... real self-government in place of the colonial rule they have been living under. To those who assert that assimilation is irresistible in this age of jet transportation and satellite communications, their reply is that Indians and Inuit themselves, either individually or in groups, will decide whether, when and to what extent they will assimilate into the larger society. If this is a fair claim, which we seem to have accepted, for without it there is no freedom to choose. Wardship is not an alternative in a society committed to freedom and self-determination. (p.52)

The logic is persuasive. Here in Australia, Aboriginal peoples have been so preoccupied with the issue of restoration of a land base that questions of self-government have scarcely been addressed other than in terms of communal proprietorship and dependent forms of local government. It will be interesting to see what discussions the Australian Law Reform Commission's final report on Aboriginal Customary Law will encourage, concerning community justice mechanisms and other aspects of its reference that clearly fall within the concept of Aboriginal self-government.