Module 9: Implementing Self-Governance and Governance in the North

For self-government to be successful, the agreements reached must be customized and tailored to address the particular needs and situation of the particular Indigenous nation. Different models suit different communities, depending for example on the geographical location of the community, population, size of the land base, etc. However, regardless of the exact form of governance that emerges, Royal Commission Report on Aboriginal Peoples (RCAP) lists three attributes necessary for effective and efficient government that is able to make things happen: legitimacy, power and resources.

• Legitimacy: Refers to public confidence in and support for government. Legitimacy depends on factors such as the way the structure of government was created, the manner in which leaders are chosen and the extent to which the government advances public welfare and honours basic human rights.
• Power: Is the acknowledged legal capacity to act. It includes legislative competence (the authority to make laws), executive capacity to execute and administer the laws, and judicial jurisdiction to resolve disputes.
• Resources: Consist of the physical means of action. Resources include the financial, economic and natural resources for security and future growth. Also included are the information and technological skills, and human resources in the form of skilled, healthy and capable people.

A government that lacks one or more of these attributes will be hampered in their operations. For example, if a government has legitimacy, but no power or resources, it will be perceived as mainly symbolic.

The need for self-governance agreements is multi-fold and can be expressed in the following ways: a mechanism for historical recognition or reparation, recognition of legal and constitutional rights, economic control and freedoms, and social control or management.

In the process of colonization in North America, much of the land that Indigenous peoples originally used was taken for settlement or resources. The processes of colonization and new government in Canada resulted in a lack of freedom for Indigenous peoples to determine the ways their lands would be used. Due to a lack of political, social, economic, and geographical control, many Indigenous persons suffered both physical and psychological hardships in the transition from self-governance to a system of external governance by European colonizers.

The Government of Canada in 1994 agreed to negotiate self-government agreements in recognition of the inherent (Indigenous) right of self-government as protected by section 35 (Government of the Northwest Territories). This recognition has been seen as a step in reparation of the relationship between the federal government and Indigenous groups.

One of the benefits that self-government agreements provide is economic freedom for Indigenous groups. This includes rights to natural resources, investment opportunities, and the abilities to self-direct jobs and economic growth within Indigenous communities as determined by those communities. In 2003 and 2010 Aboriginal Affairs and Northern Development Canada (AANDC) conducted an impact assessment and analysis of the well-being of self-governing communities (Impact Assessment of Aboriginal Self-Government and Comprehensive Land Claims). The Assessment found that in self-governing groups, employment levels are improving and that these communities consistently experience lower unemployment.

Particularly in Northern Canadian communities, many Indigenous persons are disadvantaged economically and face social stigmas. Advocates of self-government believe that this stems from a failure to allow Indigenous groups to develop their own solutions to problems in their own communities. Largely due to restrictions of the Indian Act, geographic isolation, inadequate funding, and absence of decision-making power, many First Nations have found their communities reliant upon government for the provision of basic needs. This is often a misunderstood dilemma as stereotypes about social welfare assistance can be disheartening and do not account for the number of structural conditions that lead to a relationship of dependency. Although self-government agreements themselves will not holistically solve the economic challenges of Indigenous communities, these agreements can provide the opportunity for Indigenous peoples to set their own priorities (Government of the Northwest Territories). Self-governance allows Indigenous groups to take control of the social dynamics within their own communities and provides opportunity to manage problems at the community level.

All of the listed reasons for self-governance stem from a need to move past a system of colonial dependency and move forward into a respectful partnership between government and Indigenous groups. As many Indigenous persons believe that this partnership was the original spirit and intent of treaties signed during European settlement, they hope that this will provide the needed economic, social, cultural, and political motivations and tools for success.

There are several concerns for First Nations to address when signing self-government agreements. Ken Coates (1998) identified a number of challenges towards the implementation of self-governance and some of these include:

• Government decisions that affect individual citizens directly will be made locally. This means that keeping personal relationships separate from government activities will become very difficult and can result in issues of bias.
• Very large percentages of the membership of many First Nations are living away from the home community.
• Federal and territorial governments often offload responsibilities to self-governing leadership bodies without provisions or plans for sufficient resources. The transfer of responsibilities can leave transitioning First Nations with little support and direction.
• The road to self-government is costly (negotiations, planning, infrastructure etc.).

In addition, there are challenges to the full implementation of self-government agreements including cultural fluency, population base, financial costs, competing interests from other institutions of the western world, capacity building and collaboration.

Another concern with negotiation and implementation of self-governance agreements is to ensure that they appropriately address the gender dynamics within the communities. The Status of Women Canada has initiated public debate and argued that “a gender-based analysis of the federal land claims policy be undertaken with the full representation and participation of Aboriginal women’s organizations” (Archibald and Crnkovish 1999, 34). Canadian Indigenous women have found that gender bias exists in policy especially when a program or service has been devolved to First Nations governments from non-Indigenous governments.

The goal of self-government is for First Nations to make their own decisions, yet as the claims process unfolds many First Nations find themselves relying more and more upon outside specialists. The reliance on outsiders has arisen in the Yukon Agreements because the agreements are very complex, and their people did not have the capacity internally to negotiate these agreements. This means that outsiders have shaped some very foundational documents, such as specific First Nation constitutions, a foundational prerequisite toward negotiating a modern land claim. One of the effects of this is that many of the foundational documents and policies are non-Indigenous in content and intent, and this causes internal and external conflict between two worldviews.

The Yukon is currently experiencing many challenges when implementing self-government agreements, specifically in identifying, eliminating and replacing discrimination and remnants of colonial language in foundation-building documents and systems. One way to address these concerns is to transition to Indigenous control over programs and services, offering these programs and services in a more culturally appropriate fashion. The ability exists for Yukon First Nations with signed land and self-government agreements to completely take over programs and services such as education, social services and justice. However, few First Nations have exercised this power due to the cost of delivering these programs and services to a small population and/or other undetermined reasons. This stands to be the biggest challenge to the implementation of self-government agreements: the ability for First Nations to effectively transition from a system of dependency (on outside funding and external control or structures) to a system of self-sufficiency. It is often in this transition that poor governance and lack of experience cause failures to successfully shift to self-governance. Before more closely examining the Yukon case, we will explore how governance functions in Nunavut to offer a comparative case study to self-governance systems in the Yukon.

The Territory of Nunavut came into existence on April 1, 1999, as a result of the Nunavut Land Claims Agreement (NLCA) that was signed between the federal government, the Northwest Territories, and an Inuit organization previously known as the Tungavik Federation of Nunavut (now called the Nunavut Tunnagavik Incorporated or NTI). Nunavut is not solely an Inuit self-government unit. It is a public government unit that represents all residents of the region, both Inuit and Qallunaat (non-Inuit) yet is made largely of Inuit representation due to the large Inuit population of the region. (White 2009, 59). However, Nunavut provides an example of how Modern Land Claim Agreements (MLCAs) function to define Aboriginal Rights to land and land ownership, as articulated by section 35 rights.

Figure 9-1: Celebrating Nunavut Day on July 9th in Iqaluit. Source: https://www.gov.nu.ca/culture-and-heritage/events/nunavut-day Permission: This material has been reproduced in accordance with the University of Saskatchewan interpretation of Sec.30.04 of the Copyright Act.

Modern Land Claim Agreements provide not only clarity in land use rights, but also a potential step forward to greater autonomy for Indigenous communities and regions in terms of political control and economic well-being. Considering that the Royal Commission on Aboriginal Peoples has linked the poor state of economic development in many Indigenous communities to the disruption of traditional lifestyle and displacement from rich land and resource bases, as well as the controlling influence of the Indian Act on economic development (RCAP 1996), MLCAs are one mechanism for greater political, economic, and resource control by Indigenous groups in Canada.

While the numbered treaties in central and Western Canada did contain many specific provisions, up until the 1970s large parts of northern Canada did not have treaty agreements as land was less desirable for commercial use (Saku and Bone 2000, 286). The first modern treaty in Canada was the James Bay and Northern Quebec Agreement in 1975 (see Figure 9-2). In 1976, the Inuit Tapirisat of Canada (ITC) filed a land claim on behalf of all Inuit people living in the Northwest Territories, which included a sub claim known as the Inuvialuit land claim. This eventually failed as the ITC was dissatisfied that the ongoing negotiations did not account for Inuit knowledge(s) and ideas, while the federal government was dissatisfied with the Inuit desire to create a new territory (Nunavut). (Saku and Bone 2009, 290). The Inuvialuit Final Agreement (IFA) was eventually signed in 1984, offering benefits which included subsurface rights on some of the land to the controlling Inuit communities. While there was initial resistance to the creation of a new political territory in the North, the territory of Nunavut was actualized through a land claims treaty (NLCA) and was a step towards Inuit desire to control their own political, economic, and social agenda.

Andre Legare (1998) notes that the Nunavut agreement was unique due to the absence of any previous land claim agreement between Inuit and the Government of Canada, the demographic cultural majority of Inuit in this region of the Northwest Territories, and the exclusion of Inuit from the parameters of the Indian Act (and the associated reserve, band, and band council system imposed through this Act). This allowed for the development of the Nunavut public government system to emerge with Inuit values informing its structure. It is important to note that while this structure was informed by Inuit political values and has dominant Inuit representation, the Nunavut claim makes no provisions for Aboriginal self-government and still remains dominantly controlled by the federal government (White 2009, 62).

The structure of Nunavut’s government system was informed by Inuit preference for local (rather than distant) governance and community-level control (White 2009). The structure is based upon the municipal model of a mayor/council unit, however these units have limited powers and rely completely upon the federal government for funding as they have no own-source revenue. The Legislative Assembly of Nunavut also diverts from the Westminster model used federally and in other provincial legislatures, as it rests upon a “consensus government” structure (White 2009, 64).

Figure 9-2: Modern Treaties in Canada. Source: https://www.aadnc-aandc.gc.ca/eng/1306240926854/1306240992340 Permission: Courtesy of Indigenous and Northern Affairs Canada, Non-Commercial Reproduction.

Learning Activity 9-1

Part A:

White (2009) details the problems of “capacity” present in the Nunavut model. Make some notes regarding how White’s assessment of capacity issues relates to our discussion at the start of this module of the three aspects of good governance. On the whiteboard below, comment under the three aspects (legitimacy, power, resources) with your thoughts on how the Nunavut system does or does not contain each of these elements.

Part B:

After completing Part A, do you think that the Nunavut system represents “good governance”?

Complete the class poll below by voting “yes” or “no”.

[poll response link]

You can see the results below.

[live results link]

As Nunavut is considered a form of Inuit governance, although not self-governance, we will move on to another Northern agreement that more holistically represents a form of Indigenous self-government.

Currently in the Yukon Territory, eleven out of fourteen First Nations governments have self-government and land claim agreements. Self-governing nations, such as Champaign and Aishihik First Nation, First Nation of Nacho Nyak Dun, Teslin Tlingit Council and the Vuntut Gwitchin, have the ability to exercise political, economic and social autonomy from territorial and federal governments, thereby providing Indigenous governance to its own people. Self-government means that Yukon First Nations have the legitimacy, power and resources to develop their own identity, environmental and hunting laws, implementation policies, systems of governance, land and tax base and institutions of learning and doing while utilizing Indigenous ways of knowing (Durie 1998).

Yukon First Nations with signed final land claim agreements are now recognized territorially and federally as a third order of government. Now, legislation requires the federal and territorial governments to consult with these First Nations on matters that affect them. With this consultation process, it is very important for individual and collective Yukon First Nations and Territorial and Federal governments to cooperate and consult with each other in order to enforce good governance. Yukon First Nations with self-government agreements share jurisdiction with the Government of Yukon over legislation, such as Yukon Education Act, the Yukon Children’s Act and the Corrections Act. As well, Yukon First Nations have legislated presence on boards and committees, and this presence lends voice and accountability towards a shared model of governance in areas such as heritage, Indigenous language, elementary, secondary and higher education and training, justice and fish and wildlife.

The final land claim and self-government agreements give Yukon First Nations human and financial resources, political power and authority as well as cultural autonomy over traditional territories, natural resources, institutions, laws and language. The first four Yukon First Nations to sign self-government agreements eleven years ago (First Nation of Nacho Nyak Dun, Teslin Tlingit Council, Vuntut Gwitchin First Nation and Champagne and Aishihik First Nation) have accomplished their own tax and land base, complete or shared jurisdiction over social programs, justice, education and children and have representation on influential boards and committees. All of these nations enjoy corporate status in many of the state functions and are in full or partial ownership of programs and companies, such as Children’s Services, Coca Cola, Han Fisheries, Air North and others.

Learning Activity 9-2

In terms of capacity, how does the Yukon Land Claim and Self-Government agreement offer greater benefits for communities than the Nunavut governance structure? Add to the comparison chart below under each of the following categories: political, economic, social, cultural.

Yukon Land Claim and Self-Government Agreement Timeline

Indigenous peoples in the Yukon began articulating principles of self-determination in the 1960s. However, in 1969 Canada’s political landscape shifted economic, political and administrative resources towards the question of assimilation of Canada’s “Indian” people. The Federal Government’s White Paper was introduced in 1969. The White Paper did not promote self-government for First Nations; rather, it sought to remove Indian status all together.

The White Paper was not well received by First Nations. In 1972, the National Indian Brotherhood issued a position paper, Indian Control of Indian Education. In January 1973, the Yukon land claim process began with the release of the document Together Today For Our Children Tomorrow. Both these documents are based on the economic, political, social and administrative advancement of Indigenous peoples. Since 1970, Canada and the Yukon Territory simultaneously worked towards devolution policies in the area of public lands and natural resources.

In 1973, Yukon status and non-status Indians signed the historic document Together Today For Our Children Tomorrow towards a comprehensive land claims policy comprised of “a total of 41,439 square kilometres of land, more than $242 million in cash compensation over a period of 15 years, as well as wildlife harvesting rights, subsurface rights, participation on land and resource management bodies, and provisions for promoting and preserving the culture and heritage of Yukon Indians” (United Nations Working Group on Indigenous Populations Eleventh Session 1993:3).

In the Yukon, the Federal and Territorial governments developed with Yukon First Nations the primary document, called the Umbrella Final Agreement (UFA). The UFA is the template for all Yukon First Nations final agreements for the settlement of land claims (Yukon First Nations Act 1994 c. 35). Yukon First Nations final agreements are constitutionally protected as a form of modern treaty. Due to the UFA template, there are many similarities between agreements, and some of the primary premises of the Yukon First Nation Final Agreements (1993) are to:

After thirty years of negotiation with the federal and territorial governments of Canada, Champaign and Aishihik First Nation, First Nation of Nacho Nyak Dun, Teslin Tlingit Council and Vuntut Gwitchin First Nation signed comprehensive Land and Self Government Agreements with the Government of Canada and Government of Yukon. This historic signing took place in 1993. Little Salmon Carmacks and Selkirk First Nation signed on by 1997 and were joined in 1998 by Trondek Hwechin First Nation, and then by Kluane First Nation. By 2005 the Government of Canada and Government of Yukon had also signed Land Claims and Self Government Agreements with Kwanlin Dun First Nations, Taan Kwachan First Nation and Carcross/Tagish First Nation. All these nations now enjoy third order of government status in the Yukon Territory.

Learning Activity 9-3

Consider the Module 8 reading by Gurston Dacks. What are major challenges in implementing the Yukon self-government agreements in practice? Organize your thoughts under each of the following columns: political, economic, social, cultural.

While the Yukon and Nunavut have followed different paths to governance, both Territories still encounter many issues, particularly related to autonomy, resources, and human capital. Indigenous governance and self-governance have not experienced an easy transition, particularly when we consider the time required to implement these new government structures. Self-governance, although highly desirable for many Indigenous communities, comes with many obstacles related to political organization, economic or resource capacity, and the ability to attend to social and cultural needs in the community. Students of Political Studies must consider these challenges in order to best assess how Indigenous governance can unfold in Canada.

For First Nations, the ability to self-govern represents a shift away from the fiduciary relationship with the federal government and movement towards the ability to make governing choices for their own populations. As many hardships were occurred during the former colonial relationship with the federal government, many Indigenous groups seek self-government in hopes of using more culturally appropriate and locally directed policies for governance. As the right to self-governance is protected by section 35, the implementation of self-government is both a legal and historical mechanism that represents a relationship between Indigenous and the federal government built on equal partnership, as opposed to paternalism.

There are numerous documented economic advantages in communities who exercise self-governance. Work force participation is higher, and unemployment is typically lower in communities that self-govern. Socially, self-government gives communities and their members renewed motivation in their abilities and freedoms to choose the best policies and practices for themselves.

One of the biggest challenges to implementation is ensuring that transitioning First Nations have the needed financial, structural, and educational support to assume new responsibilities in governance. Often, transitions can fail if new governments are not prepared or proper infrastructure is not in place that can lead to poor governance tactics.

Currently, 11 out of 14 First Nations in the Yukon Territory have successfully negotiated self-governance agreements, granting them a third order of government status. This process took many decades of negotiation, but serves as an example to other Canadian First Nations on the type and forms of self-government agreements available under their section 35 rights.