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Background/"Why"

Moving Forward Together

BC has been at the forefront in implementing the inherent right of self-government in Canada.  BC leaders were instrumental in protecting our rights of governance in the Constitution Act 1982.  BC Nations have had success in negotiating modern governance arrangements with the Crown, litigating Aboriginal governance rights or simply implementing governance on the ground.  We need to share our experiences and build on our success.  Some of the governance opportunities, either on-reserve or throughout the traditional territory include:

1. Incremental Jurisdiction through the Indian Act
2. Sectoral Self- Government initiatives
1. Land Code development under:
   First Nations’ Framework Agreement on Land Management
2. Control of education under:
   Education Jurisdiction Framework Agreement
3. Property taxation, financial management and public financing under:
   First Nations Fiscal and Statistical Management Act
4. Financial Management and control of ‘Indian monies’ under:
   First Nations Oil and Gas and Moneys Management Act
3. Constitution Development
4. ‘Shared Decision-Making’ and Land Use Planning
5. Comprehensive Self-Government Agreements (both inside and outside of treaty)

The BCAFN will work to ensure that where Nations are implementing their right to self-government through whatever initiative or approach they have chosen as part of their critical path, that they are supported in that decision and connected with other First Nations moving in the same direction.  Where our Nations’ require Canada or BC to undertake some form of action as they remove themselves from the affairs of Nations, I will work with our communities and their leadership to ensure Canada or BC take appropriate action where necessary.

Incremental Jurisdiction through the Indian Act

For many of our Nations moving away from federal control has started through the exercise of delegated authority under the Indian Act.

While the Indian Act is obviously not the right tool to implement our inherent right to self-government, there are, nevertheless, a number of opportunities to build our governance and our jurisdiction using the Indian Act as a stepping stone to eventual full self-determination.  Many of our communities have developed our own custom election rules and membership/citizenship codes (approximately 232 in Canada).  There are currently 50 First Nations in BC that are collecting property tax under s.83 of the Indian Act.  These communities now raise much needed revenues for local purposes that support economic development and community enhancement. 

Many of our communities are making by-laws under s.81 of the Indian Act.  While the bylaw powers are limited and do require Canada to review the bylaws made, they are, nonetheless enforceable and are one way to begin exercising decision-making authority on-reserve. 

The exercise of authority under these Indian Act provisions has helped many of our communities begin on the path towards self-determination and we can build on the positive examples, best practices and share our experiences.  Many of these elements of governance that could be advanced by drawing down powers through the Indian Act could eventually find their way into a Nation’s constitution or inform negotiations with Canada when it comes time to implement comprehensive governance arrangements based upon the inherent right. 

Sectoral Self-Government Initiatives

Land Management

Beyond the Indian Act, but short of comprehensive self-governance, there are opportunities for our Nations to exercise jurisdiction and authority through sectoral self-government arrangements.  Seventeen communities in BC have passed Land Codes under the First Nations Land Management Act.  Eight more communities are in the developmental stage.

Having a Land Code removes a community from under the restrictive land management provisions of the Indian Act and the involvement of the Minister of Indian Affairs. There are currently limitations on the number of communities that can develop a Land Code at any one time and I will work to see that these limitations are lifted.  If a community wants to develop a Land Code it should be able to do so without a ‘gatekeeper’.  For Nations that want to develop Land Codes, the BCAFN will support our leaders as they push Canada to move more quickly in supporting the implementation of land code development.

Education

There are over fifty of our communities that have indicated they want to be a part of the new educational arrangements being implemented pursuant to the Education Jurisdiction Framework Agreement. The Education Agreement is unique to BC and provides an opportunity for communities who want to begin the process of asserting jurisdiction over education to do so.  It is important that communities that wish to take control over education are aware of this initiative, have the opportunity to participate in it, and learn from the experiences of others.  BCAFN must work with our leaders in promotion of this opportunity.

Financial Management

Another BC led initiative was the First Nations Fiscal and Statistical Management Act (FSMA) initiative,where communities are moving beyond the Indian Act and are raising revenues and passing financial management and borrowing laws under the FSMA. There are over 35 First Nations communities under the FSMA.

This Act provides jurisdiction beyond the Indian Act to make financial management laws that govern financial administration in our communities. It also provides opportunities for communities to collectively borrow monies for their public purposes through the First Nations Finance Authority using multiple revenue streams.  A Nation, if it so chooses, can build upon the opportunities created by the FSMA.  BCAFN will work with our leaders in facilitating greater control of our financial affairs including access to capital for public and other purposes whether or not through this initiative or others.

In addition to the FSMA the First Nations Oil and Gas and Moneys Management Act provides an opportunity for our Nations to pass financial management rules and then take over control of their ‘Indian monies’ (revenues and capital accounts that are under the control of Indian Affairs derived from economic activity on-reserve). 

Constitution Development

Many of our Nations have developed or are developing their own Nation’s Constitution, either as part of negotiations with the Crown or independent of negotiations (such as the Haida, Laich-Kwil-Tach, Tahltan, Westbank, Gitanyow, and many, many others). This is one of the most important activities occurring across our Nations. It is important because a Constitution, from the community up, establishes the foundation for the government and all activities of the Nation.  A Constitution sets out the basic fundamentals of how a Nation is governed, how decision-makers are chosen, how laws are made and enforced and how accountability to and by the citizens is maintained.  Regardless of whether or not a Constitution is being developed as part of a broader self-government negotiation or simply as an initiative of the Nation there are many examples of successful Constitution development in BC that can be shared.  Ultimately all Nations will no doubt want to have their own Constitution setting out how their Nation is governed.  We need to support and build on our success in working with Nations that want to develop their own Constitution. Building a Constitution can be a first and very powerful step to engaging community members and charting a First Nation’s own governance course.  BCAFN will work to ensure our Nations have the resources and the networks to develop their own Constitutions where this is part of their critical path. 

Shared Decision-Making Arrangements

Many of our Nations are not simply looking to exercise jurisdiction on their limited reserve land base but are pushing for broader jurisdiction within their entire traditional territories, including true ‘shared decision-making’.  The opportunities for self-government off-reserve over our traditional territories where jurisdiction is shared with BC (and in some cases Canada (i.e. for fish and National Parks for example)) are relatively new and are a result of recent Court cases and successes at the negotiating table.  Some examples of shared decision-making arrangements that I have reviewed include: the Taku River Tlingit Framework Agreement Respecting Land Use and Wildlife Management; the Gitxsan Short Term Forestry Agreement; the Haida Strategic Land-Use Agreement; and, the Clayoquot Sound Interim Measures Agreement.  There are many others.

With our Nations beginning to enter into shared decision-making arrangements over their traditional territories we need to understand these agreements and build upon them.   There are now opportunities to exercise some control over resource development and ensure that it is sustainable development where our traditional lands are protected and where we can participate in decision-making concerning economic development and ensure our Nations’ involvement in that economic development.

Land Use Planning

Some of our Nations have developed or are developing comprehensive land use plans for their Traditional Territories. These plans set out how the Nation sees land use throughout their Traditional Territory, including areas protected for traditional practices as well as areas for economic development.  These plans can inform negotiations, including those leading to shared decision-making arrangements, but more importantly they are an assertion of governance rights to determine what can happen on our lands. Where these plans have been developed by a Nation, governments and third parties are increasingly relying on the plans and having to respect them, particularly as the legal rights of our Nations become clearer through the Courts. Examples of such land use planning include the Gitanyow Land Use Plan and the Squamish Nation Land Use Plan. All Nations will, at some point probably seek to develop a land use plan for their entire traditional territory. Again, this is an important area where Nations can work together, particularly where there is overlap between Nations’ plans. 

Comprehensive Self-Government Agreements
(inside or outside of Treaty) 

Some Nations want to exercise broad self-government powers beyond the Indian Act and sectoral self-government arrangements and to build upon their governance work to date (whether it is Constitution development or land use planning etc).  Short of securing a declaration from a Court that a Nation has an inherent right of self-government over a broad range of subject areas, or simply just exercising rights, it is still necessary to negotiate agreements with the Crown on the extent of the inherent right across a range of subjects (lands, resources, health, education, financial management etc.).

Over the past 20 years a number of our Nations have gained experience in negotiating comprehensive governance arrangements and are now implementing aspects of the inherent right.

Each of our Nations must have the opportunity to have a meaningful and true negotiating table with Canada and where appropriate with BC.  Self-government arrangements can apply to existing reserves but can also apply to the broader traditional territory as part of claims settlements, however negotiating comprehensive agreements cannot be restricted to negotiating agreements under the BC Treaty Process. 

All Nations, whether negotiating treaties or not, need to be able to negotiate their own comprehensive governance arrangements with Canada and BC when they desire to.  At the very least, Canada should engage with Nations that want to negotiate new jurisdictional arrangements over existing reserve lands, with or without BC’s involvement.  BCAFN will continue to push Canada and BC to open the doors to establishing governance negotiating tables with our Nations that desire such tables without the requirement to go through one process of negotiations or another.