Several Indigenous Nations across Canada are moving forward with the adoption of their own Constitutions to: capture in writing their legal orders, values and core principles; ensure those orders, values and principles inform their governance; and protect the rights and freedoms of their citizens.1
Constitutions can be useful tools in appropriate circumstances to help advance an Indigenous Nation's specific interests and goals. Where a Nation does decide to develop a Constitution, it will be important to do so with input from, and engagement with, membership, Elders, knowledge holders and others in the community so that the final Constitution reflects the particular Nation's rights, interests and priorities.
In this article, we have set out – at a high level – examples of the scope and content of some Indigenous Constitutions, along with an overview of approaches for developing Constitutions that have been adopted by some Nations. We provide this as a helpful overview for those Nations looking to explore this option.
What are Indigenous Constitutions?
Indigenous Constitutions typically set out the fundamental law of an Indigenous Nation and provide a framework for its self-governance. In some circumstances, the development of an Indigenous Constitution may also represent a process of codifying oral traditions, customs, protocols and laws.
Indigenous Constitutions typically establish governmental authorities, including their legal jurisdiction and law-making powers, and the manner in which governmental authority can be exercised. They also typically set out the rights and freedoms of citizens in the face of such governmental authority and how disputes between the two will be resolved.
In what contexts do Indigenous Constitutions arise?
Indigenous Constitutions often arise in the context of comprehensive self-government negotiations, but may also arise in other contexts such as treaty implementation and declarations of Aboriginal title.2
In the context of self-government negotiations, Canada generally requires Indigenous Nations to adopt a constitution dealing with core governance matters, and requires that self-government agreements provide for the establishment of governing structures, internal constitutions, elections and leadership selection processes, and accountability and transparency mechanisms.3
Constitutions developed under treaties may be shaped by requirements set out in the treaty. For example, treaties may set minimum standards for certain aspects of governance, including terms for elected representatives, financial administration systems, membership rules and conflict of interest rules.4
Notwithstanding the above, in all cases Indigenous Constitutions ultimately arise from, and are a corollary of, the inherent right to self-government, which is expressly recognized under Article 4 of the United Nations Declaration on the Rights of Indigenous Peoples, as well as by Canada in its Principles respecting the Government of Canada's relationship with Indigenous peoples.
What topics are typically covered by Indigenous Constitutions?
There is no magical formula or mandatory content for an Indigenous Constitution. Ultimately, the content will vary between different Indigenous Nations based on their specific needs and priorities. That said, in our experience, Indigenous Constitutions typically address some or all of the following:
- governance principles, purposes and values;
- government structures, offices and jurisdictions;
- financial management;
- election processes;
- law-making powers of government;
- law-making processes;
- land rules;
- membership rules;
- rights and freedoms of membership/citizens;
- enforcement mechanisms; and
- constitutional amendment clauses.
Indigenous Constitutions can also address a wide variety of issues such as the local economy and priorities for economic development, environmental and cultural stewardship, natural resource development (including fisheries, forestry, hydro and mining), education and training, community programs and services, health, language, and culture.
Further, while Indigenous Constitutions often include elected Chief-and-Council type government structures, some have also incorporated hereditary or traditional governance systems. This can be an effective means to marry the traditional governance system with the Indian Act governance approach (which, while imposed under federal legislation, has become a familiar governance regime for many Nations and their membership). As discussed above, Indigenous Constitutions can also provide a mean through which Indigenous Nations can encode traditional laws and legal principles if membership, including Elders and traditional knowledge holders, considers it appropriate.
Ultimately, the scope and specificity with which Indigenous Constitutions address the above is closely tailored to be responsive to the priorities and needs of individual Nations.
Indigenous Nations across Canada are increasingly taking steps to implement their inherent rights to self-government, through various means, including the development and enactment of Indigenous Constitutions. At their core, Indigenous Constitutions provide a valuable framework for self-governance and self-determination.
Gowling WLG is honoured to assist Indigenous Nations with all aspects of Indigenous Constitutions, from initial planning and community consultation phases, to enactment and implementation, and would be please to answer any questions your community may have in advancing these important tools and regimes.
1. For example, in addition to the Indigenous constitutions currently enacted, to our knowledge the Dene Government and Whitecap Dakota First Nation currently have draft constitutions under consideration.
2. BCAFN: Governance Toolkit – A Guide to Nation Building at pp. 118 to 121
3. BCAFN: Governance Toolkit – A Guide to Nation Building at p. 127; The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government.
4. BCAFN: Governance Toolkit – A Guide to Nation Building at p. 127.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.