The following is a guest post by Miranda Lalla, a foreign law intern working with Foreign Law Specialist Tariq Ahmad at the Global Legal Research Directorate of the Law Library of Congress. It is part of our Frequently Asked Legal Questions series.
On June 23, 2022, Bill S-10 received royal assent after being passed by the Canadian Parliament. Its provisions give effect to the Anishinabek Nation Governance Agreement– the result of nearly three decades of negotiations between the Anishinabek Nation and the federal government. Bill S-10 recognizes, above all, the power of self-government for some of the First Nations in Ontario (Magnetawan, Moose Deer Point, Nipissing, Wahnapitae, and Zhiibaahaasing), marking an important step towards creating substantive equality for Indigenous peoples, many of whom continue to see their political and civil lives governed by the Indian Act first enacted in 1876.
- What is the Indian Act?
The history of Crown-Indigenous relations can be tracked through a survey of the Indian Act and its amendments. Stemming from the federal government’s legislative authority over “Indians and Lands reserved for Indians” (Constitution Act, 1867 § 91(24)), the nearly 150-year-old piece of legislation provides the primary legislative framework for the management of 630 First Nations communities across Canada. Throughout its history, the Indian Act has governed matters such as Indian status (membership in a First Nation), ceremonial practices, education, and legal access rights of many First Nations peoples all across the country. Through time, some of its elements have been amended—such as the repealing of the s. 12(1)(b) loss of Indian status for women upon marriage to a non-Indian spouse (after being judged by the UN Human Rights Committee to violate art. 27 of the International Covenant on Civil and Political Rights). Other amendments, such as the 1894 addition of compulsory boarding schools for Indigenous children (Consolidation of Indian Legislation, Vol. II, at 164), led to abuse and perpetuated intergenerational trauma in Indigenous communities.
According to the 2019 General Social Survey, 33% of Indigenous-identifying individuals reported experiencing discrimination based on race as compared to the 16% of the non-Indigenous, non-visible minority population. Economic opportunities remain disparate between the average Canadian and the Indigenous individual living on a reserve (in which four in five hold a median income below the poverty line).
On June 14, 2022, Sen. Patti LaBoucane-Benson urged legislators to change the trajectory of a Canadian legal history that “failed to recognize the unique needs and aspirations of [Indigenous] communities”—this, through the passing of Bill S-10. The Aninishinabek Nation Agreement draws on cultural rights as a solution to create a more equitable Canadian society. Steps in this direction were suggested in July of 2017, when the Canadian government released a series of principles guiding the future of Indigenous-Crown relations, aimed at “end[ing] the denial of Indigenous rights that led to disempowerment and assimilationist policies and practice”. Most notably, its fourth principle recognized that “Indigenous self-government is part of Canada’s evolving system of cooperative federalism […]”, asserting its existence as a constitutional Aboriginal right recognized and affirmed by section 35 of the Constitution Act, 1982. Moving away from the one-size-fits-all approach of formal equality, the government of Canada has opted to acknowledge the “scars” of colonialism; in placing the management of Indigenous society back into the hands of its leaders, Indigenous peoples can decide how to best “deliver programs and services to their communities.”
- What are the Core Features of the Anishinabek Nation Governance Agreement and Bill S-10?
Bill S-10 applies to Ontario’s First Nations, British Columbia’s Sechelt Nation, and the Yukon First Nations, and recognizes each First Nation party to the agreement as its own legal entity. As noted by the Anshinabek’s News, however, emphasis must be placed on the word “recognize[s]”; the agreement does not create law-making powers but “recognizes” the Anishinaabeg’s own “law-making powers and authority to self-govern” based on their own legal traditions.
Parties to the Agreement must be endowed with a written constitution. These constitutions, if not already providing for them, are to include provisions on the nation’s legislative process, complete with conflict-of-interest rules, amendment procedures, and appeal mechanisms (Anishinabek Nation Governance Agreement Plain Language Version, Chapter 5).
Each nation party to the agreement will also have the right to make laws regarding elections, citizenship requirements, cultural preservation, and the management of its own government. Furthermore, each signatory nation will be permitted to develop its own law enforcement and dispute settlement procedures, which can, if the nation sees fit, include elements of traditional justice (for the Anishinaabeg, an example of this is the solution-based ‘Circle Process’ for dealing with family disputes). (Anishinabek Nation Governance Agreement Plain Language Version, Chapter 5). The Agreement provides for funding mechanisms that will allow the federal government to lend support to First Nations communities in implementing these initiatives (Bill S-10, part 3, clause 48). Furthermore, this funding can be dispensed without the approval of the Governor in Council—this amendment applies to the Yukon First Nations, which implemented a self-government agreement in 1994 (id.). Their inclusion in Bill S-10 amends the existing agreement, affording Yukon’s Indigenous communities a greater degree of financial independence with regard to new funding agreements.
The recognition of jurisdiction in these areas will render the provisions of the Indian Act concerning leadership selection, operation of government, citizenship, language, and culture non-applicable.
- What are Canada’s international commitments regarding their Indigenous population?
In 2016, the government “fully endorsed” the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), an international human rights instrument that “provides a roadmap to advance lasting reconciliation with Indigenous peoples.” On June 21, 2021, Parliament enacted the United Nations Declaration on the Rights of Indigenous Peoples Act (Bill C-15), committing to “advance implementation” of the UNDRIP at the federal level. This began a process of harmonization to “ensure the laws of Canada are consistent” with the international human rights instrument.
Bill C-15’s preamble states that implementing UNDRIP must be an effort done “in consultation and cooperation with Indigenous Peoples”, for which an action plan must be set”. An example of what these consultations would resemble are the 50 separate negotiations open between Indigenous communities and the federal government, each creating a unique forum for guiding self-government agreements.
In this way, Bill S-10 may be just one of the first of a greater series of cultural rights affirming legislation for Canada’s Indigenous population. Its self-government provisions are examples of the country’s commitments in this area. When considering that the UNDRIP encompasses 46 articles—spanning topics such as lands, resources, environment, religion, and media rights for Indigenous communities—Canadians might hope to see their government take the lead once more with new cultural rights affirming initiatives.
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