Chapter 5 – Yukon Indigenous Peoples and Governance
A Self-Government Agreement (SGA) is what makes the First Nation government a legal entity and does away with the Indian Act as it applies to specific bands. It is separate from the Umbrella Final Agreement and is distinct, but connected, to the First Nation Final Agreement for each Nation. The SGA allows the First Nation to create a constitution that outlines how it will govern itself and provides the means for the First Nations to possess law-making powers.
For instance, Teslin Tlingit First Nation has “incorporate[d] traditional Clan culture into contemporary organizational and management principles” (Teslin Tlingit Council 2017). Teslin Tlingit Council has five clans: Kùkhhittàn, Ishkìtàn, Yanyèdí, Dèshitàn, and Dakhl’awèdí, and an appointed member of each Clan sits on the Executive Council (Teslin Tlingit Council 2017b). The Executive Council also includes the Chief Executive Officer, Deputy Chief, Youth Councillor, and one Elder appointed by the Elders Council (Teslin Tlingit Council 2017c). In another example, the First Nation of Na-Cho Nyak Dun has a differently structured government, made up of an elected Chief, Deputy Chief, four Councillors-at-large, a Youth Councillor, and an Elder Councillor (2017c). Thus, these two First Nations have modified their governance structures to address their own Nation’s needs.
The SGA “lays out the powers, authorities, and responsibilities of the individual First Nation government” but is not protected under the Constitution of Canada like the Final Agreements are (Council for Yukon First Nations 2019). This “means that the Parliament of Canada may at any time make changes to the Yukon Self-Government Agreement Act without the agreement or involvement of Yukon First Nations” (Legend Seekers 2002: 87). Even though this is “a remote possibility” it is still possible (Legend Seekers 2002: 87).
The Self-Government Agreement essentially provides the tools for Yukon First Nations governments to decide their own affairs and chart their own course moving forward. It is the Self-Government agreements that allows Yukon First Nations who have signed and ratified their Final Agreements to decide who is a citizen of their Yukon First Nation, pass their own laws, and to design and provide services and programs for their citizens (Government of Canada 2003: 9). The agreement has five sections. Important elements within each section are as follows:
Part 1 focuses on definitions, principles, general provisions, ratification, self-government legislation, amendment and review, remedies, and interpretation and application of law. An example of a general provision found in the Carcross/Tagish Self-Government Agreement is as follows, “This agreement shall not affect the ability of the aboriginal people of the Carcross/Tagish First Nation to exercise, or benefit from, any existing or future constitutional rights for aboriginal people that may be applicable to them” (Canada 2005: 4). In terms of the interpretation of law, the SGA states that “where there is any inconsistency or conflict between the provisions of federal Self-Government Legislation and any other federal Legislation, the federal Self-Government Legislation shall prevail to the extent of the inconsistency or conflict (Canada 1998c:4). Thus, it lays out how the agreement applies to the First Nations citizens and how the First Nation legislation works in relation to federal government legislation.
Part 2 focuses on the legal status and constitution of the First Nations Government as well as transitional provisions and delegation. The constitution does the following: recognizes and protect the rights and freedoms of the First Nations citizens; provides the mechanism to challenge to validity of the First Nations laws; outlines a system of reporting to ensure financial accountability to its citizens; establishes the First Nation governments governing bodies; and provides a citizenship code (Canada 2003:9).
A citizenship code is a key aspect of the SGA as it gives authority to the First Nation Government to decide who is a citizen of the First Nation. One can be a citizen of a Yukon First Nation without having Indian status; one can be a citizen of a Yukon First Nation and also have Indian status; and, one can be a member of a Yukon First Nation and affiliated with a Native American nation in the United States (Canada 1993; Canada 2010). Individuals have to apply to a self-governing First Nation to be a citizen. A person can only be a citizen of one Yukon First Nation and enrolled under one Canadian agreement. If someone chooses to transfer to another First Nation, they may not be accepted back to their initial First Nation or accepted into the new First Nation.
Part 3 focuses on legislative powers. Under the SGA this includes both provincial and federal level laws and provides lawmaking powers and how they relate to the laws of general application. Under the SGA, First Nations have exclusive law-making powers with regard to internal affairs and management of their rights. These include law-making powers that apply to citizens, and law-making powers that affect all people, regardless of citizenship while on settlement land. The law-making powers that relate to the citizen often include provincial like jurisdiction over matters that include things like child welfare, adoption, and education. For example, a self-governing First Nation may pass its own child welfare act; that act would apply to the citizens of that Yukon First Nation no matter where they were in Yukon. The laws that a First Nation creates about its settlement lands are applicable to all people on the settlement lands and do not revolve around citizenship. Some examples of these laws are the administration of justice, rules regarding dangerous substances, and land zoning (Dacks 2004). Self-governing First Nations in Yukon for the most part sit at the same jurisdictional level as the territorial government but there are significant areas where a Yukon First Nation can exercise law-making abilities of a federal nature. For example, a Self-Governing First Nation could pass their own law on intellectual property rights. In terms of law-making authority, the laws of general application apply in the absence of a Yukon First Nation law. This means that Yukon and Canadian laws apply throughout Yukon unless a First Nation has created their own law on that topic, in which case the First Nation’s law takes precedence over Yukon and Federal Governments. If a First Nation law and a Yukon government law conflict, the Yukon First Nation’s supersedes the territorial law on settlement land (Dacks 2004).
Part 4 focuses on finances, includes programs and services, financial transfer agreements, revenue and financial accountability. The SGA provides funding “which support the delivery of programs and services at the First Nation level” (Council for Yukon First Nations 2019). This means that the First Nation can “negotiate the assumption of responsibility” for managing, administering and delivering programs or services within its own jurisdiction if and when the Nation determines to do so (Canada 1993:33). This is often called “drawing down” a program or service, such as Kwanlin Dün First Nation operating a wellness program at a health centre.
Lastly, part 5 describes the ratification process for each First Nation including how campaigning and communication is done with First Nation members. It also describes how the ratification voting process is to occur and how many yes votes are needed (50%) to adopt the Final Agreement.