Widely recognized as the key that will enable First Nations to take control of their lives free of the restrictions of the Indian Act, self-government is a critical element of modern treaty-making. The signing of a treaty means that the Indian Act will no longer apply to the First Nation except to determine who is entitled to Indian status under the Act.
The Government of Canada recognizes the inherent right of self-government as an existing Aboriginal right under section 35 of the Constitution Act, 1982. After treaties, First Nations will have decision-making authority — the jurisdiction to develop their lands and generate their own revenues, and enhanced opportunities to improve the quality of life of their community members and become more economically self-reliant.
How self-government works
Self-government provisions of a treaty are negotiated with the federal and provincial governments. These provisions can include the First Nation's control over its own institutions, such as education and health care, and the authorities to manage treaty settlement lands and resources.
The exercise of powers that rest with the First Nation will be appropriate for its circumstances. The First Nation may enter into new agreements with other levels of government and take part in regional planning activities involving its claimed traditional territories.
As part of the transition to self-government, each First Nation will develop a constitution that establishes the legal framework for how the First Nation will organize itself. The constitution must be established before the treaty takes effect.
Treaties will spell out how the First Nation's government will work with other levels of government. For example, a treaty might give the First Nation the right to make and enforce certain types of laws on treaty settlement land, alongside federal and provincial laws.
Treaties will also set out which law prevails for each area of governance, in the event that there is a conflict between a First Nation law and a federal or provincial law. While all federal and provincial laws will continue to apply, in some cases it will be the First Nation's law that prevails if there is a conflict. In other areas, including laws related to health and safety, the criminal code, human rights and the environment, federal and provincial laws will prevail.
The federal government acts on the principle that people who are not members of the First Nation but live on First Nation lands should be included in the decisions that affect their interests as leaseholders, but not at the expense of the First Nation's control over the governance of its own community. To that end, treaties will ensure that non-members have a say in issues that affect them, such as service levels, taxation rates, and health, school and other boards. Treaties may stipulate that non-members have voting or candidacy rights, or recommend the establishment of advisory committees or consultation processes. Non-members must also have rights to appeal First Nation government decisions that affect them.
The Charter of Rights and Freedoms will apply to all First Nations governments, as it does to other governments in Canada. Any First Nation member, or non-member residing on First Nation lands, will have the right to challenge the operation of a First Nation government if that person believes that his or her rights as a Canadian citizen are not recognized or respected.
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