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Right To Aboriginal Self-Government Already In Constitution

SASKATCHEWAN INDIAN      AUGUST/SEPTEMBER 1993      v22 n07 p04  
(Ottawa, August 18, 1993) A major paper issued today by the Royal Commission on Aboriginal Peoples says there is good reason to believe that the right of Aboriginal self-government is an existing right under Section 35 of the Constitution Act and can therefore be implemented without constitutional amendment.

The paper, entitled Partners in Confederation: Aboriginal Peoples, Self-Government and the Constitution, states that this right was not created or granted by Canada, but that it has always existed. The paper states that Aboriginal self-government was practised long before the Constitution Act of 1867 and was not extinguished by that act.

In light of this, Aboriginal groups may be entitled to initiate self-government action without waiting the approval of other governments. However, the best approach, the paper contends, would be one undertaken in cooperation with federal, provincial and territorial governments.

Justice Rene Dussault, co-chair of the Royal Commission, in making the paper public stated, "Since the rejection of the Charlottetown Accord of 1992...a host of questions pertaining to the future of Aboriginal peoples have remained on the table."

In order to prepare the country to come to grip with these issues Mr. Dussault said that the Commission "thought it would be important to re-examine the historical and legal foundation of the relationship between Aboriginal peoples and newcomer."

Partners in Confederation traces the relationship between Aboriginal nations and European colonizers, French and English, and cites case law and early agreements to demonstrate that the existence of Aboriginal peoples as self-governing entities was widely recognized.

"The paper examines the evidence that Aboriginal societies continued to function according to Aboriginal customary law before and after the act of Confederation," Mr. Dussault said. "While the British North America Act, the Indian Act and other federal legislation curtailed the exercise of Aboriginal governments, it was never extinguished."

In light of this, he said, the Commission believes "that there is good reason to conclude that the right of Aboriginal self-government is an existing right. The Constitution Act of 1982 states that the "existing aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed".

The paper suggests that the right to self-government would not be subordinate to other orders of government in certain core authorities that most immediately affect peoples' lives--education, social policy, certain areas of justice. In other areas they would share jurisdiction with federal, provincial and territorial governments and instill other areas they would accept exclusive federal jurisdiction."

He indicated that it was necessary for self-government to be accompanied by secure, long-term financial arrangements and increased access to lands and resources is a recipe for failure."

The paper also suggests that individuals should have access to Charter protection in relation to how Aboriginal governments exercise their powers, an issue of particular concern to Aboriginal women.

Partners in Confederation concludes by saying that it is time for a "broader understanding of the sources of law and authority" in Canada including the important role treaties and other governments with Aboriginal peoples have played in structuring Confederation, "Central to this new understanding is the recognition that Aboriginal peoples have the inherent right of self-government within Canada."