Wednesday, September 26, 2018
The Transitional Governance Project

It is Time to Transform Our Nations

 

All First Nations have stories about transformation, Transformers that narrate our creation stories. In the oral histories, the Supernatural beings are the characters who transform the landscape and prepared us to live in the places we do and in the ways that we do. Nations throughout North America have stories of Transformers. Some are attached to the Raven, some to the Crow, Coyote, or Humans. We invoke the spirit power of the Transformers and use the language of transformation so that the people understand the kind of change we seek.

The Transformers, supernatural beings, transformed our world. Through the experience of colonization, we were taken out of the territories the Transformers created and were put onto reserves. Now, it is time to transform ourselves, re-build our nations and return to our territories.

For five years, the Centre for First Nations Governance (CFNG) has supported First Nations in developing effective and efficient self-governance. This document describes CFNG overall approach to this work and provides context for the current opportunity for transformation towards self-governance-an opportunity that begins with First Nations governments and extends to the Crown and the Canadian people. The CFNG approach to cultivating transformation towards self-governance includes:

  • Education and training to re-engage the people in nation building
  • Obtaining a clear mandate and vision for change from the community
  • Support throughout the transitional steps necessary to move from Indian Act administration into the inherent right to self-government

Through direct engagement in applied research, mentoring, and training opportunities, CFNG creates opportunities for First Nations to directly learn from each other by sharing their expertise and experience through written reports, videos, and online resources. First Nations participating in this work will represent the full range of self-government capacities and jurisdictions, including lands and resources, essential services, and citizen engagement. Ultimately, CFNG’s goal is to provide a versatile transformational governance model that shows what is possible, and outlines the steps to get there.

The Constitutional and Legal Context

Prior to colonization, First Nations governed themselves, created and participated in thriving economies, and negotiated relationships with other nations. Traditional languages and spiritual practices guided these interactions. The inherent right to self-government was intact.

As settlement progressed, the systematic colonization of Indigenous Peoples eroded the ability to exercise inherent rights. In 1867, First Nations entered Confederation not as nations, but as wards of the Crown under Section 91(24) and the Indian Act. For over 150 years, First Nations have struggled to re-establish recognition and respect for traditional lands and inherent rights.

In 1982, Indigenous rights and title were entrenched in Section 35. At the time, Canada viewed it as an “empty box of rights” since Aboriginal rights and title had all been extinguished. Since then, Section 35 has undergone a slow evolution. Case after case, the empty box of rights slowly filled. Starting with R. v. Sparrow in 1990, the Supreme Court of Canada has interpreted and applied section 35, providing definition and content to Aboriginal rights. In the Delgamuukw decision in 1997, the Court explained that Aboriginal title amounts to the entire beneficial interest in the land and stated that Aboriginal titleholders have decision-making authority over their lands. More recently in Tsilhqot’in Nation (2014), the Court applied Delgamuukw and issued a declaration of Aboriginal title. The Court confirmed that the Aboriginal titleholders have exclusive rights of possession, use, and management of their lands. Given the communal nature of their title, to exercise these rights Aboriginal peoples must have a section 35 right of self-government, as Justice Williamson of the BC Supreme Court held in Campbell v. British Columbia (2000).

Today, Section 35 is a full box of rights. Inside are the designs to shape a new relationship with the Crown on the one hand, and the tools to build it on the other. The Crown’s constitutional and legal obligations to First Nations apply in both title and treaty contexts and are driving negotiations between First Nations and the Crown toward a new nation-nation-nation relationship.

Across Canada, the transformation achieved through the law and the constitution must be matched at the community-level. Now is the time to start this long journey. A jouney back to self-determination.

After 150 years, and going onto eight generations, the Indian Act remains highly invasive, paternalistic legislation, authorizing the regulation and administration of the day-to-day affairs of reserve communities to the detriment of its citizens. Replacing traditional forms of social and political organization, the Indian Act imposes homogenous, narrowly defined, and consistently under-funded Band administrations to enable the execution of government policy. Due to the continued grip of the Indian Act, First Nations are only beginning to understand the current opportunity for transformation to self-government and their interactions with other Canadian governments.

Re-engaging the People

Indigenous rights are communally held by the people. Therefore, the decision to initiate transition to self-government must be made collectively. Re-engaging the people in nation-re-building is a critical first step towards self-government.

Citizen Engagement: Building on a nation’s traditional and cultural systems, CFNG provides community-wide education and training on the inherent right to self-government and supports the development of a citizen engagement strategy. Activating

Collective Memory: Fully understanding the inherent right to self-governance involves activating a community’s collective memory of their inherent right prior to contact. CFNG uses Open Space and other emergence-based facilitation technologies that engage citizens in dialogue and collaborative decision-making to re-build a picture of self-governance.

A Clear Mandate and Vision for Change

A clear mandate and vision for change from the community is necessary for First Nations to seize the opportunity to re-build their nations? CFNG delivers a learning journey prompts a consensus decision for change and clear strategic direction for implementing the inherent right to self-governance.

Revealing the Origin & Content of the Indian Act – The History of the Inherent Right since Confederation: The origins and content of the Indian Act explain how the inherent rights of First Nations have changed over time. This process linking historic assimilation policies to contemporary and intergenerational impacts that impede progress towards self-government.

Re-imagining the Inherent Right to Self-Government: Based on the picture of inherent rights painted with the collective memory of the community, self-government can be re-imagined in the contemporary context.

The Transitional Work

No matter the starting point, the underlying problem is the same – dealing with the Indian Act. Long-term development work by CFNG in First Nations across Canada regarding their inherent right to self-government began to request tools and strategies for:

  • Reducing the time and energy spent on Indian Act administration
  • Transitioning from the Indian Act and into the inherent right
  • Realizing the inherent right to self-government

In 2017, The Transitional Governance Project was established to provide applied research and analysis directed by First Nations governments who are working to master and leave behind the Indian Act. The Project is situated at the intersection of two factors–the reality that the legal basis for effective self-government has been achieved, while progress towards self-government is impeded by institutions and practice shaped by decades of Indian Act administration.

The Transitional Governance Project is a collaboration between CFNG, the Institute of Public Administration of Canada and Carleton University.

Engaging Youth in the Transformation to Self-Governance

As the Transformers prepared our ancestors, our ancestors did their best to prepare us to live where we do, the way we do. Now, we too must prepare our young people to be the change we are working towards. We can start by inviting the youth to join their First Nation’s transformative journey into self-government. Nation building takes all its citizens to contribute and there are many opportunities and ways for young people to be involved, to develop their leadership and essential skills, and to reconnect to their territory, beyond reserve boundaries. They will after all, be the first generation to return to a life without the Indian act.