Sovereignty: Do First Nations Need It? – Idle No More

An Informative Essay by, Mohawk Lawyer and Legal Academic :

Stephen John Ford

The problem with answering this question is ground in the misunderstanding Indigenous People have about what Sovereignty really is. Some Indigenous people take the position that Sovereignty is a concept particular to the Colonizer. Others point out that word doesn’t exist in their language and therefore has never been known to their Nation. Indeed Sovereignty was developed in Europe in the 16th, 17th and 18th centuries. It is rooted in the Old French: soverei’nete . Although there may be no single word in an Indigenous language that compares identically to sovereignty, the concept as it would apply in a First Nation context, is clearly present.

In my view, the focus must centre on the meaning of the concept of Sovereignty in a First Nation context. Although Sovereignty has a number of differing definitions there are some that directly resonate to the Indigenous experience. Webster’s Encyclopedic Dictionary defines sovereignty as including the concept of self-government: sov-er-eign-ty n. 3. The condition of political independence and self-government. It is beyond dispute that at the time of contact Indigenous Nations were politically independent and governing themselves under there own laws. When sovereignty’s synonyms are considered, words such as jurisdiction, power, authority and control are found. Since the Supreme Court of Canada has required a First Nation claiming Title to show ‘exclusive possession” which is jurisdiction and control, then that First Nation would also prove their Sovereignty. Finally, International Law requires that Nation States must not interfere with the internal affairs of other Nation States. To do so would be a violation of recognized sovereignty. The concept of sovereign non-interference is not exclusive to modern International Law. This concept has been foundational to the initial relationship between European newcomers and Indigenous Nations. Treaties were forged on this concept, most notably the Two-Row Wampum covenant that makes clear the principle of non-interference and mutual respect are the foundation of every Treaty. The principle of ‘non-interference’ is a necessary component of the International legal understanding of Sovereignty.

Why Exert Sovereignty?

The need to exert sovereignty by Indigenous Nations flows from the Colonizer’s assertion that the Crown became sovereign over all the lands and peoples living here upon “Discovery”. The Doctrine of Discovery and the concept of terra nullius meaning – ’empty land’ are the legal foundations upon which European Crowns made pompous claims of sovereignty over Indigenous lands and populations. The Courts have used and upheld these to find in favour of the Settler State.

Even though the ‘existing Aboriginal and Treaty Rights’ are now Constitutionally protected in section 35(1) the Courts have stopped short of any recognition of the sovereignty Indigenous Nations possess. In fact, the Supreme Court of Canada has declared that the purpose of section 35(1) “provides the constitutional framework for reconciliation of the pre-existence of distinctive aboriginal societies occupying the land with Crown sovereignty.” (R. v. Van der Peet, [1996] 2 SCR 507) In my view, this distorts the real purpose of s. 35(1). S.35(1) is the constitutional vehicle by which true collective reconciliation can be achieved. However, what must be reconciled is the Crown’s assertion of sovereignty with the pre-contact sovereignty of Indigenous Nations. The assertion of Crown sovereignty has become, with the passage of time, De facto, or actual sovereign control that exists and is practiced. In other words, Canada has assumed and enforced actual control over all lands and people. On the other hand, Indigenous Nations in pre-contact times possessed what is known as De jure or legal sovereignty, exercised by their interactions and recognised exercise of control over their territories. This legal sovereignty, although known to the European newcomers, was ignored and eliminated by the legal fictions of terra nullius and the Doctrine of Discovery as mentioned above and refused recognition by the Settler State.

Since the question of whether self-government is a Constitutionally protected Indigenous right is still unanswered by the Court so too is the existence of Indigenous ‘legal sovereignty’ unanswered.

Recognition, Exercise or Termination

It is well settled and clear that Settler States such as Canada, the United States, Australia and New Zealand would never voluntarily recognise Indigenous Sovereignty. Nevertheless, it is the recognition of sovereignty that permits for its undisputed exercise. How then is Indigenous sovereignty to gain recognition? Sovereign recognition embraces the notion of Nation to Nation relationship. One sovereign entity’s interaction with another sovereign entity. This is most commonly seen through Treaty making and alliances of mutual benefit. Notwithstanding the historic treaties Indigenous Nations have made with European nations, in a modern context of sovereign recognition Indigenous Nations ought to continue to make treaties and alliances with other sovereign nations. This can be easily accomplished. For example, the Mohawk Nation could negotiate and enter Treaty of commerce and trade with the Mi’kmaq Nation or the Ojibway Nation entering alliances with the Cree Nation on environmental protection. The possibilities are endless and could and should include Indigenous Nations worldwide.

The issue of Sovereign Recognition can be easily solved The exercise of Indigenous sovereignty is, on its face, a straight forward proposition. It can be as simple as the individual exercise of a collective Indigenous right such as hunting, fishing or gathering. On a far larger scale is the exercise of Indigenous sovereignty at the nation level. As mentioned above, sovereignty can manifest itself through the treaty or alliance making process. Perhaps most importantly, is the exercise of sovereignty through the development and application of legislation based upon Indigenous law. Application is understood as jurisdiction over territory and persons within that territory. However, this exercise of sovereignty will invariably attract backlash from the governments and agencies of the Settler State. It is the fear of backlash and resulting consequences that has kept Indigenous leadership from engaging in this form of sovereign expression. The historic response of Indian Affairs to Indigenous leadership non-compliance is to cut funding. This usually means reduction in programs or reduction of workforce, making elected leaders reluctant to upset AANDC.

The goal of Indigenous sovereignty is long term and any short term consequences must be seen in this light. Ultimately, the consistent and ongoing expression and exercise of Indigenous sovereignty will force a redistribution of wealth and jurisdictional power within the Settler State. In the result the reliance on Federal funding will be removed or greatly reduced removing a vital AANDC control mechanism.

The exercise and expressions of Indigenous Sovereignty is critical in opposition of Federal Termination policies. These policies are consistent with the object of the 1969 White Paper which was to terminate all Indigenous rights along with the special status that accrued to them – assimilation completed. Currently there are numerous Termination/negotiation Tables occurring across the land. Whether it is Comprehensive Land Claims or Self-Government Agreements the Federal Policy is to provide short term financial compensation in exchange for the elimination of future Indigenous s. 35 claims to rights including Title. In many cases, permanently enslaving the First Nation as a municipal government within the province. In almost all cases these Termination Tables and resulting Agreements are occurring without the Free, Prior, Informed, Consent of the members of the Band.

Indigenous Sovereignty is necessary for the survival of First Nations in Canada. With it comes the redistribution of wealth necessary to remove the yoke of dependence and control exerted by the Federal government. Indigenous Sovereignty will also provide First Nation jurisdictional control over their territories to protect the lands and waters thereby ensuring sustainable development of the economies found therein. Indigenous Sovereignty is possible to attain. Not through elected Indian Act Chiefs and Councils but through the collective will of the People.