Governing Structures in First Nations’ Children and Family Laws
(Bill C92)
August 2024
Julie Williams, Inherent Rights Fellow, and
Mason Ducharme, National Community Research Director, RFNG
Since Bill C-92 became law in 2019, a number of First Nation communities across Canada have been enacting their own child and family services laws under the framework of their inherent right of self-government. Co-developed with Indigenous partners, the legislation was in response to years of failures and serious abuses by federal and provincial governments in exercising their authority. A key feature of the law is that it represents one of only two instances[1] in which the Crown has recognized a specific jurisdiction under the inherent right of self-government.
Bill C-92 offers an important opportunity for nations to create an “Indigenous Governing Body” distinct from Indian Act administration. This briefing note presents an overview of the new First Nations laws, their governing structures, and the processes by which they were ratified. It also briefly explores the current governing structure options and assesses their effectiveness in promoting inherent rights governance. The information will help in understanding the diverse approaches taken by different communities and identify common themes and challenges.
The full briefing note can be found here: Bill C92 Briefing Note
People, Land, Language
Foundations for Inherent Rights Governance
A report on the Rekindling the Fire Gathering
June 2023, Algonquin Territory
Giuseppe Amatulli, post-doctoral fellow, Carleton University
First Nations Elders, leaders, and administrators gathered with practitioners, academics, and other experienced individuals for Rekindling the Fire at Carleton University in Algonquin territory June 11-12, 2023. Organized by the Rebuilding First Nations Governance (RFNG) project in partnership with the Centre for First Nations Governance (CFNG), the gathering was an opportunity for partner First Nations to share and learn from each other about how they are working to overcome the Indian Act and transition to self-government under their own inherent rights. Over 2 days of discussion it emerged that our people, language, and land are key building blocks for partner communities and nations as they rebuild their governing structures and laws to exercise their inherent rights and leave the Indian Act behind.
This report was built on notes taken by our student volunteers and research team members; a word analysis of transcripts; reviewing video recordings; and additional written literature reviews. Thank you to all our partners who agreed to have their words and images captured and shared so that others might learn from their experiences.
The Rekindling the Final Report can be found here: RTF Final Report
Indigenous Culture in Contemporary Indigenous Government: Some Examples from Native Nations in the United States
Stephen Cornell and Miriam Jorgensen
This paper is less concerned with the right to govern than with the how of governing. Its focus is on the Indigenous experience in the United States: How are Native nations in the U.S. incorporating aspects of culture—including their own governmental traditions—in building effective governments today? It is organized around six topics or tools of governing: constitutions, citizenship, dispute resolution and the provision of justice, law-making, the selection of leaders, and child welfare. Within each section the authors offer examples of Indigenous nations considering—and usually drawing on—their own cultural resources to address contemporary governmental tasks.
The choice of topics and examples is not meant to be exhaustive. The purpose is to illustrate and capture at least some of the diversity of Indigenous nations’ efforts to draw on their own rich governmental principles and traditions in addressing the challenge of governing effectively on behalf of their own purposes.
The full article can be accessed here: Cornell & Jorgensen – Indigenous Culture in Contemporary Indigenous Government: Some Examples from Native Nations in the United States
Cornell is Faculty Chair of the Native Nations Institute at the University of Arizona where he is Emeritus Professor of Sociology and Emeritus Director of the Udall Center for Studies in Public Policy. He also is co-founder and Emeritus Director of the Harvard Project on American Indian Economic Development (today the Harvard Kennedy School Project on Indigenous Governance and Development).
Jorgensen is Research Director of both the Native Nations Institute at the University of Arizona and the Harvard Project on Indigenous Governance and Development.
Connecting the Dots to Reveal a New Picture: A Report on Indian Act By-Law Enforcement Issues Faced by First Nations in Nova Scotia and Beyond
By Naiomi Metallic and Roy Stewart with research support from Ashley Hamp- Gonsalves
This report originated as a request by the Mi’kmaq-Nova Scotia-Canada Tripartite Forum to research the challenges facing First Nations in Nova Scotia in assuming jurisdictional control through Indian Act by-laws. In undertaking this research, we identified significant uncertainty, misconceptions and confusion around Indian Act by-laws from all parties with a stake in this issue, including federal and provincial government representatives (Indigenous Services, Department of Justice, Public Safety), the police, the public and First Nations representatives. Consequently, we felt it necessary to comprehensively unpack the various issues relating to Indian Act by-laws, from their nature and legal effect, to their development, enforcement, adjudication and penalties. To our knowledge, this is an exercise that had yet to be undertaken.
Unlike earlier approaches to Indian Act by-laws, our analysis interprets these powers in the context of modern interpretive, constitutional and domestic and international human rights principles, including the United Nations Declaration on the Rights of Indigenous Peoples. Such an analysis is crucial, we felt, because, although the language of the Indian Act by-law provisions has changed very little over the years, developments in the law mandate a very different approach to by-laws than was the case in earlier decades. We consider the application of modern interpretive and constitutional principles related to by-law interpretation and a detailed legal analysis of each stage of the by-law process as ‘connecting the dots.’ Connecting these dots now creates a picture that presents more options and opportunities than most assume is possible with Indian Act by-laws.
The report comprises 10 chapters:
- Introduction
- Constitutional, legal and political context
- Community context and their by-laws
- The municipal by-law context
- Making by-laws
- Enforcement of by-laws
- Prosecution of by-laws
- Adjudication of by-laws
- Penalties for by-law infractions
- Summary of Findings and Recommendations
Although this report was written for Mi’kmaq communities in Nova Scotia, our analysis has broad relevance to the exercise of jurisdiction under the Indian Act by First Nations across the country, as well as under other forms of delegated legislation, such as the First Nations Land Management Act.
Connecting the Dots to Reveal a New Picture by Naiomi Metallic and Roy Stewart
Online: https://digitalcommons.schulichlaw.dal.ca/cgi/viewcontent.cgi?article=1054&context=reports
Six Examples Applying the Meta-Principle Linguistic Method: Lessons For Indigenous Law Implementation
Naiomi Walqwan Metallic, Associate Professor and Chancellor’s Chair of Aboriginal Law and Policy at the Schulich School of Law, Dalhousie University
Building on “Five Linguistic Methods for Revitalizing Indigenous Laws,” this article explains and analyses six examples of implementation of the ‘meta-principle’ or ‘word-bundle’ linguistic method for Indigenous law revitalization. The method refers to using a word in an Indigenous language that conveys an overarching, normative principle of the Indigenous group, and is the most utilized form of the five linguistic methods to date.
The examples span its use by judges, public governments as well as Indigenous governments, and these actors employ different methods for identifying and interpreting the meta-principles. The variations between them reveal four categories of approaches to identifying, interpreting and implementing meta-principles, each with different benefits and challenges.
These examples and the categories show us that communities and their governments have real options, and precedents, to not only begin to revive their laws, but also to put them into practice.
Six Examples Applying the Meta-Principle Linguistic Method by Naiomi Metallic
Online: “Six Examples Applying the Meta-Principle Linguistic Method: Lessons for Indigenous Law Implementation,” (2022) 73 UNBLJ 133. https://digitalcommons.schulichlaw.dal.ca/scholarly_works/812/
Five Linguistic Methods for Revitalizing Indigenous Laws
Naiomi Walqwan Metallic, Associate Professor and Chancellor’s Chair of Aboriginal Law and Policy at the Schulich School of Law, Dalhousie University
Building on the ground-breaking work on the revitalization of Indigenous laws ongoing over the past decade, this article seeks to contribute to our understanding of how Indigenous languages can be used to recover Indigenous laws. It posits that there is not one single linguistic method, but at least five: 1) the ‘Meta-principle’ method; 2) the ‘Grammar as revealing worldview’ method; 3) the ‘Word-part’ method; 4) the ‘Word-clusters’ method; and 5) the ‘Place names’ method. Using the Mìgmaq language to illustrate, the article explains each method and provides examples of how they can be used to inform Indigenous law revitalization. The article also shows that one does not have to be a fluent, first-language speaker to engage with linguistic methods for Indigenous law revitalization, by highlighting the various published resources like dictionaries and lexicons, reference and teaching texts, atlases, and more, that can be harnessed to engage in this work. This makes engaging with the linguistic methods accessible to the many Indigenous peoples who, because of the impacts of colonialism, are only starting to re-learn their Indigenous language. This revelation should give greater confidence to the non-fluent that they too can play a role in the revitalization of both their language and laws.
Five Linguistic Methods for Revitalizing Indigenous Laws by Naiomi Metallic
Online: “Five Linguistic Methods for Revitalizing Indigenous Laws,” forthcoming in Volume 68 McGill LJ (2022). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4099156
Checking our Attachment to the Charter and Respecting Indigenous Legal Orders: A Framework for Charter Application to Indigenous Governments
Naiomi Walqwan Metallic, Associate Professor and Chancellor’s Chair of Aboriginal Law and Policy at the Schulich School of Law, Dalhousie University
The Canadian Charter of Rights and Freedoms looms large in our national identity. Most Canadians see the Charter as intrinsically tied to fundamental notions of justice and fairness in our country. Because of this, Canadian lawyers and judges, who believe the Charter to be inherently good, may find it hard to understand why Indigenous peoples resist application of the Charter to their own institutions.
Examining the case of Dickson v Vuntut Gwitchin in which a citizen of a self-governing First Nation made a Charter challenge over voting rights, the article argues that in this case, it is not necessary to apply the Charter. As Vuntut Gwitchin First Nation (VGFN) has an established individual rights protection regime within their own Constitution, upholding the VGFN legal order aligns with substantive equality, the principles of federalism, the protection of minorities, the rule of law and the United Nations Declaration on the Rights of Indigenous Peoples.
Checking our Attachment to the Charter and Respecting Indigenous by Naiomi Metallic
Online: “Checking our Attachment to the Charter and Respecting Indigenous Legal Orders: A Framework for Charter Application to Indigenous Governments,” (2022) 31:2 Constitution Forum 3, Special Issue on Dickson v. Vuntut Gwitchin First Nation, 2021 YKCA 5. https://digitalcommons.schulichlaw.dal.ca/scholarly_works/770/
Breathing Life into Our Living Tree and Strengthening our Constitutional Roots: The Promise of the United Nations Declaration on the Rights of Indigenous Peoples Act
Naiomi Walqwan Metallic, Associate Professor and Chancellor’s Chair of Aboriginal Law and Policy at the Schulich School of Law, Dalhousie University
In 2015, the Truth and Reconciliation Commission of Canada (“TRC”) suggested that, despite over 30 years of interpretation in the courts, section 35 (s 35) of the Constitution Act, 1982, which “recognizes and affirms” the Aboriginal and treaty rights of the Aboriginal peoples of Canada, is not achieving meaningful reconciliation. According to the TRC, the “reconciliation vision that lies behind Section 35 should not be seen as a means to subjugate Aboriginal peoples to an absolute sovereign Crown,” implying this has been a problem with s 35 interpretation to date. Problems raised by the TRC include s 35 case law’s implicit acceptance of the doctrine of discovery (a racist doctrine that posits the superiority of Europeans over Indigenous peoples and justifies claiming jurisdiction over them and their lands) that manifests into Indigenous peoples having to prove their rights under narrow and problematic legal tests, and a reluctance to appropriately recognize and respect Indigenous peoples’ jurisdiction and laws. A chorus of Aboriginal and Indigenous law scholars agree with this diagnosis of s 35.
This article examines the source of the problems with s 35, the evolution of Canadian case law on Aboriginal rights, and whether meaningful change requires a constitutional amendment. It argues that the UN Declaration can and must influence the development of Canadian law and that no constitutional amendment is required to breathe life into the promise that s 35 holds for the broad exercise of Aboriginal rights.
Online: “Breathing Life into Our Living Tree and Strengthening our Roots: The Promise, Limits and Challenge of An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples” forthcoming in Rewriting the Canadian Constitution, eds., Richard Alpert, Wade Wright, Kate Berger and Michael Pal (2023). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4232531
Aboriginal Rights, Legislative Reconciliation and Constitutionalism
Written by Naiomi Walqwan Metallic, Associate Professor and Chancellor’s Chair of Aboriginal Law and Policy at the Schulich School of Law, Dalhousie University
This paper sketches out the idea of ‘legislative reconciliation’ – governments in Canada using their legislative powers to recognize and protect the inherent rights of Indigenous peoples. Legislative reconciliation is needed because the existing approaches to the implementation of inherent rights—negotiation and constitutional litigation—have been insufficient on their own to bring about a mutually respectful relationship between Indigenous and non-Indigenous peoples.
Despite the entrenchment of s 35, state governments have not seen themselves as having a role in its implementation in the same way they do for Charter rights. In particular, Canadian governments have not felt compelled to legislate to promote and protect inherent rights. This is in tension with constitutionalism, the idea that governments ought to live their constitutions by respecting and promoting constitutional rights. For too long, Indigenous peoples have not benefitted from similar respect and promotion of their inherent rights, and this has caused them significant harm.
This paper explains the concept of legislative reconciliation and why it is needed and argues that, far from being unconstitutional, legislative reconciliation exemplifies the principle of constitutionalism, and ought to be robustly embraced by Parliament, as well as provincial and territorial legislatures, and encouraged by our courts.
Aboriginal Rights, Legislative Reconciliation and Constitutionalism by Naiomi Metallic
Online: “Aboriginal Rights, Legislative Reconciliation and Constitutionalism” (October 2022), accepted for publication in the Review of Constitutional Studies. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4263010
2022 Lawmaking for Nation Rebuilding Think Tank
How First Nations are reclaiming their right to self-government Written by Ben Sylvestre
Lawmaking for Nation Rebuilding – Learning from Nipissing Written by Julie Williams
Lawmaking for Nation Rebuilding – Learning from Listuguj Written by Judy Oduro
Lawmaking for Nation Rebuilding – Indigenous Lawmaking in relation to the Canadian Constitution and Common Law Written by Amsey Maracle
How Indigenous Nations Have Been Transforming Public Policy through the Courts Written by Satsan (Herb George), Kent McNeil, Frances Abele, from E. Lindquist, M. Howlett, G. Skogstad, G. Tellier, P. ‘t Hart. eds. Policy Success in Canada: Cases, Lessons, Challenges. Oxford University Press, 2022.
Download the book ‘Policy Success in Canada’ from the publisher here.
Indigenous Law and the Common Law (Written by K. McNeil)