Inherent Right of Self-Government is a Section 35 Right
The Government of Canada recognizes the inherent right
of self-government as an existing Aboriginal right under
section 35 of the Constitution Act, 1982. It recognizes,
as well, that the inherent right may find expression in
treaties, and in the context of the Crown's relationship
with treaty First Nations. Recognition of the inherent
right is based on the view that the Aboriginal peoples
of Canada have the right to govern themselves in relation
to matters that are internal to their communities, integral
to their unique cultures, identities, traditions, languages
and institutions, and with respect to their special relationship
to their land and their resources.
Government acknowledges that the inherent right of self-government
may be enforceable through the courts and that there are
different views about the nature, scope and content of
the inherent right. However, litigation over the inherent
right would be lengthy, costly and would tend to foster
conflict. In any case, the courts are likely to provide
general guidance to the parties involved, leaving it to
them to work out detailed arrangements.
these reasons, the Government is convinced that litigation
should be a last resort. Negotiations among governments
and Aboriginal peoples are clearly preferable as the most
practical and effective way to implement the inherent
right of self-government.
the Canadian Constitutional Framework Aboriginal governments
and institutions exercising the inherent right of self-government
will operate within the framework of the Canadian Constitution.
Aboriginal jurisdictions and authorities should, therefore,
work in harmony with jurisdictions that are exercised
by other governments. It is in the interest of both Aboriginal
and non-Aboriginal governments to develop co-operative
arrangements that will ensure the harmonious relationship
of laws which is indispensable to the proper functioning
of the federation.
light of the wide array of Aboriginal jurisdictions or
authorities that may be the subject of negotiations, provincial
governments are necessary parties to negotiations and
agreements where subject matters being negotiated normally
fall within provincial jurisdiction or may have impacts
beyond the Aboriginal group or Aboriginal lands in question.
Territorial governments should be party to any negotiations
and related agreements on implementing self-government
north of the sixtieth parallel.
inherent right of self-government does not include a right
of sovereignty in the international law sense, and will
not result in sovereign independent Aboriginal nation
states. On the contrary, implementation of self-government
should enhance the participation of Aboriginal peoples
in the Canadian federation, and ensure that Aboriginal
peoples and their governments do not exist in isolation,
separate and apart from the rest of Canadian society.
Canadian Charter of Rights and Freedoms
Government is committed to the principle that the Canadian
Charter of Rights and Freedoms should bind all governments
in Canada, so that Aboriginal peoples and non-Aboriginal
Canadians alike may continue to enjoy equally the rights
and freedoms guaranteed by the Charter. Self-government
agreements, including treaties, will, therefore, have
to provide that the Canadian Charter of Rights and Freedoms
applies to Aboriginal governments and institutions in
relation to all matters within their respective jurisdictions
Charter itself already contains a provision (section 25)
directing that it must be interpreted in a manner that
respects Aboriginal and treaty rights, which would include,
under the federal approach, the inherent right. The Charter
is thus designed to ensure a sensitive balance between
individual rights and freedoms, and the unique values
and traditions of Aboriginal peoples in Canada.