Inherent Right to Self-Government

1. Inherent Right to Self-Government Presented by: Alberta Regional Chief Marlene Poitras and Yukon Regional Chief KluaneAdamek Date Prepared: April 25, 2019

2. In 1992, the Royal Commission on Aboriginal Peoples identified 6 criteria for recognizing and affirming the inherent right.

3. 1. Source: it stems from our original occupation of the land since time immemorial and is, therefore, inherent. 2. Scope: it is limited by the need to co-exist with federal and provincial powers. 3. Status: it is not subordinate to the federal or provincial governments – sovereign in some spheres, concurrent in others.

4. 4. Process: the method of recognition and affirmation must have the full involvement and consent of First Nations. 5. Consistent: Section 35 entrenched, did not create, the right. 6. Justiciability: as it is inherent, it can be recognized by courts with no further legislative action.

5. Canada’s 1995 policy on the inherent right to self-government (IRSG) • Rejects First Nations sovereignty • Subordinates inherent rights to the Charter • Denies inherent jurisdiction • Requires individual negotiations over national agreements

6. Jurisdiction open to negotiation: • elections, membership, marriage, child welfare, language, culture, education, health, social services, justice, policing, property rights, land management, natural resources, agriculture, hunting, fishing, trapping, taxation, financial management, infrastructure, housing, local transportation, business operations

7. Subordinate jurisdiction may be negotiated regarding: • divorce, labour/training, administration of justice, environmental protection and assessment, fisheries co-management, migratory birds co-management, gaming, emergency preparedness

8. Canada will not negotiate jurisdiction on: • Sovereignty, defence and foreign policy; managing the national economy; criminal law; emergencies, "peace, order & good government"; health & safety; broadcasting & telecommunications, aeronautics, navigation & shipping, national transportation, postal service, census & statistics

9. Through Resolution #5/95 - Proposed Federal Policy Framework on the Inherent Right of Self -Government, Chiefs-in-Assembly rejected Canada’s inherent right policy and called for a First Nations position to be developed and adopted.

10. Canada claims a mandate outside the inherent right to self-government (IRSG) policy for “exploratory tables” • Will not reveal mandate • Has not negotiated a single final agreement outside of IRSG parameters

11. Inherent right to self-government (IRSG) policy mirrored in Canada’s “rights framework” proposal • Requires “negotiation” of inherent rights • Creates 3 tiers of subject matters • Rejected by Chiefs-in-Assembly • Call for a First Nations-led process in Resolution 67/2018

12. UN Declaration on the Rights of Indigenous Peoples recognizes inherent rights “derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources”

13. Bills C-91 - An Act Respecting Indigenous Languages & Bill C-92 - An Act Respecting First Nations, Inuit and Métis Children, Youth and Families • Proposed legislation, Bills C-91 and C-92 begin to add to the ‘empty’ box of S.35 rights. • This suggests policies and approaches demanding the ‘negotiation’ of inherent rights may be addressed in other ways.

14. Next Steps • Funding for a First Nations-led process • May 2019: AFN Forum on 4 Policies and Nation Building Update and seek feedback • June 2019: Review any steps taken by Canada • July 2019: AGA for resolution on path forward

15. Key Questions • First Nations led process: • What topics and structure would lead to the best result? • Where, when, who and how? • How to ensure Canada respects all inherent rights without negotiation?