A/HRC/27/52/Add.2
Rapporteur was pleased to hear a desire to improve the capacity of indigenous governance
institutions from all levels of government in Canada.
39.
Yet many of Canada’s laws, in particular the Indian Act, still do not permit the
effective exercise of indigenous self-government. The Indian Act renders almost all
decisions made by a First Nations government subject to the approval of the Minister of
Aboriginal Affairs and Northern Development, including changes in band by-laws, funding
for reserve programmes and infrastructure, and the leasing of land. Most glaringly, while
there are some legislative alternatives for First Nations to opt out of the Indian Act regime
on a case-by-case, sector-by-sector basis, these options are limited. The principal
alternative is through self-government agreements, which can be negotiated to enhance
greater indigenous control and law-making authority over a range of jurisdictions, including
social and economic development, education, health, lands and other matters, in accordance
with the constitutionally protected “inherent right” of self-government. Another alternative
is in the First Nations Land Management Act, which gives participating First Nations lawmaking authority over the lands in their reserve and allows them to implement their own
land management systems. However the Indian Act remains the default and still prevalent
regime among First Nations.
40.
For their part, the Métis, who are not covered by the Indian Act, have started to
engage in tripartite negotiations towards self-government agreements in key areas,
including the family and childcare, economic development, and housing, though much still
remains to be done to build and fund Métis governance institutions.
41.
As for the Inuit regions, two of the four land claim agreements concluded for them
contain self-government provisions. The Nunavut Land Claims Agreement (1993) led to
the creation of Canada’s newest territory and public government in 1999. The NunatsiavutLabrador Inuit Land Claims Agreement (2005) led to the establishment of the Nunatsiavut
Government, which has the power to pass laws concerning education, health and cultural
affairs. Agreements in the two other Inuit areas remain outstanding. In Nunavik, Makivik
Corporation (representing the Inuit of Quebec), the Government of Quebec and Canada
negotiated a final self-government agreement to establish a regional public government
responsible for delivering certain social services, such as education and health services.
However, voters in Nunavik rejected the agreement in April 2011 and efforts towards a
self-government agreement are ongoing. In 1996, the Inuvialuit Regional Council, in
concert with the Gwich’in Tribal Council, commenced self-government negotiations with
Canada and the Government of the Northwest Territories, with which they envisioned the
operation of a regional public government structure, combined with a system of guaranteed
aboriginal representation on the councils of restructured community public governments.
An agreement-in-principle was reached in April 2003 but was later rejected by the
Gwich’in Tribal Council. The two groups have subsequently resumed negotiating at
separate tables on separate agreements.
2.
Funding self-government under the Indian Act
42.
Federal funding for First Nations governments under the Indian Act is structured
through “contribution agreements” for which they must apply. Funding priorities and
amounts are unilaterally, and some say arbitrarily, determined by the federal Government.
Spending is monitored and reviewed to ensure that conditions the Government imposes are
met, and funds are withheld if audits are not delivered on time – which forces indigenous
governments to reallocate available funds to ensure programming continuity, making
reporting even more difficult.
43.
This funding mechanism also leads to reporting requirements that were repeatedly
described to the Special Rapporteur as onerous. First Nations communities that receive
federal funding under the Indian Act regime, 70 per cent of which have fewer than 500
12