First Nations were self-governing long before Europeans arrived in Canada. Indigneous nations lived as distinct and self-sufficient nations deeply connected to their homelands, with respective languages, economies, and systems of laws and governance.
In 1876, the Indian Act dismantled traditional governance systems and imposed strict regulations on Indigenous peoples' lives. Section 35 of the Constitution Act, 1982, recognizes that Indigenous peoples have an inherent, constitutionally-protected right to self-government – a right to manage their own affairs.
Self-determination is a core principle of self-government and the BC treaty negotiations process. It is also a key concept found in the United Nations Declaration of the Rights of Indigenous Peoples. The Government of British Columbia affirmed their commitment to implementing the UN Declaration through the Declaration on the Rights of Indigenous Peoples Act, 2019. This includes supporting the affirmation of, and the development of relationships with, Indigenous governing bodies.
Under the BC treaty negotiations process, self-government will be established, and administered through a treaty or other negotiated agreement. Self-government jurisdictions may include education, language, culture, police services, health care, social services, housing, property rights, child welfare, and other provisions agreed to by the three Parties. A First Nation implementing a modern treaty will have a constitution, and law-making authority over treaty land and provisions of public services. Treaties set out how First Nations governance interacts with the Canadian Constitution. The Charter of Rights and Freedoms will apply to First Nations’ governments as it does to all other governments in Canada.
There is no template for self-government, each First Nation establishes their own unique self-government arrangement. Self-government provisions may include:
- Language and
- Health care and social services
- Police services
- Property rights
- Child welfare
For example, the Nisga'a Lisims government has four directorships: Lands and Resources, Fisheries and Wildlife, Finance, and Programs and Services—including child and family, and justice services.
First Nations governments may choose to draw down their self-government provisions upon the effective date of their treaty, or gradually as they grow their governing capacity over time.
The new governing structure will have a constitution and law-making authority over treaty land and provision of public services. Regardless of who has jurisdiction over any particular service after the treaty, the Parties must agree on arrangements for its delivery.
Provisions for self-government will vary from treaty to treaty, guided by these principles:
- Self government will be exercised within the existing Canadian Constitution. Indigenous peoples will continue to be citizens of Canada and the province or territory where they live, and they may exercise varying degrees of jurisdiction and/or authority.
- The Canadian Charter of Rights and Freedoms and the Criminal Code of Canada will apply fully to Indigenous governments as it does to all other governments in Canada.
- First Nations will have the ability to make laws pertaining to treaty land and the provision of public service for their people, including health care, education and social services.
- Some local laws like zoning and transportation will apply to all residents on treaty lands, but the majority of treaty laws will apply only to treaty citizens. Federal, provincial, territorial and Indigenous laws must work in harmony.
- First Nations will be required to consult with local residents on decisions that directly affect them (for example, health, school and police boards).
Constitutionally-protected vs. Municipal style Government
Under the BC treaty negotiations process, each First Nation negotiates self-government provisions to meet their unique social, cultural, political and economic needs.
The BC Claims Task Force, established in 1991 to make recommendations for a made-in-BC treaty negotiations process, envisioned that self-government arrangements negotiated through the BC treaty negotiations process would have constitutional protection. Constitutionally protected self-government, like the Nisga'a, Maa-nulth, Tsawwassen, and Tla'amin Treaties, are passed as Canadian law, and cannot be changed unless all three Parties - Canada, BC and the First Nation - agree. Constitutional protection ensures that self-governing powers established by the treaty cannot be taken away. All modern treaties in British Columbia are constitutionally protected, although it is possible to negotiate other types of agreements and self-governing arrangements.
In a municipal-style of self government arrangement, governance powers are delegated by an act of Parliament and an act of the BC Legislature and have no constitutional protection. The Sechelt Indian Band Self-Government Act, 1986 is an example of a municipal-style self-government agreement. The Westbank First Nation Self-Government Agreement, 2005, is another example of an agreement that is not constitutionally protected.
Some First Nations may choose to pursue other types of self-government or reconciliation agreements. In 2018, shíshálh Nation (formerly known as Sechelt) and the Government of British Columbia signed a reconciliation agreement, the shíshálh Nation/British Columbia Foundation Agreement, that recognizes shíshálh's Aboriginal title and rights, and supports self-determination and self-government. Like the Sechelt Self-Government Act, this is not a constitutionally protected agreement.
Treaties will replace Indian Act-imposed band governments with a government authority for all citizens of a Nation. Each treaty will define who is eligible and who can be enrolled. Most First Nations will have broader eligibility criteria than current status and non-status designations under the Indian Act. Eligibility criteria will likely require that an individual be of First Nation ancestry connected to the Nation or accepted as a citizen of the particular nation. All citizens recognized by a First Nation, whether or not they are recognized by the Indian Act, can vote on their treaty.
Self-government strives to provide better opportunities for Indigenous people living within their traditional territory, while not excluding those Indigenous people who choose to live elsewhere.