Nations, not states

Aboriginal bands are not sovereign entities

Wed Aug 30 2006
HAROLD BUCHWALD
A Veiw from the West of Beyond.

THE recent decision by a Manitoba Court of Queen's Bench judge to declare the provincial statute outlawing smoking in restaurants and bars as unconstitutional because the law does not also apply to premises on First Nations reserves has raised the issue of whether the province has the authority to regulate behaviour on reserves.

On these pages recently, two separate aboriginal writers have proclaimed forcefully and unequivocally that the province does not because of First Nations sovereignty. The argument runs that because the government entered into treaties with the various First Nations of this country, and because treaties are only entered into between sovereign states, the individual First Nations have sovereignty, that is, complete power and authority over the territory they occupy. Accordingly, it is for the various First Nations, and them alone, to determine whether smoking is banned on their reserves, not the provincial government.

With respect, and without getting into all of the legal complexities of First Nations-governmental relations, the argument simply doesn't hold water.

At the risk of straying beyond the bounds of political correctness, and even being accused of racism -- it was the late Johnnie Cochrane, one of O.J. Simpson's defence lawyers, who said that when your case is weak, play the race card -- the facts of First Nations behaviour within the Canadian and Manitoba polity suggest anything but sovereignty. A quick list:

The criminal law of Canada applies to residents of First Nations reserves, and, while there are some special provisions applicable to aboriginals convicted of crimes, these have been introduced by the Parliament of Canada.

The provincial Highway Traffic Act governs the operation of motor vehicles on First Nations reserves.

The Manitoba Schools Act and provincial educational requirements apply to First Nations children, except where there is a specific treaty provision with a specific First Nation. Admittedly, this is a grey area.

When it comes to the health and welfare of residents of First Nations, the federal government provides the funding and, generally, the provincial government provides the services. First Nations do not have separate licensing provisions for medical practitioners practising in their territories, nor do they regulate the nurses who operate their nursing stations and health care facilities.

First Nations residents are entitled to and, indeed, do vote in Canadian federal and Manitoba provincial elections. First Nations residents have stood for election to both parliament and the provincial legislature. All of these rights are exercised as citizens of Canada and Manitoba.

None of the First Nations exercise any of the normal powers of sovereign states: Issuing their own postage stamps and passports, setting up borders and controlling immigration and collecting customs.

Perhaps the most telling reality in the lack of sovereignty discussion has to do with lotteries and gaming on reserves. The Supreme Court of Canada, the highest court in the land, by a nine to zero ruling, has declared that First Nations do not have the authority to conduct gambling activities on reserves on their own, but rather, like every other citizen of Manitoba, require provincial approval, licensing, control and accountability.

The problem with the use of the term sovereign in the First Nations context is how to define what is really meant and what applies. The classical definition, an entity which has exclusive control over what happens within its territory, complete power and authority, as is normally applied to sovereign states, falls far short of reality and applicability when one examines First Nations relationships with Canada and Manitoba.

There are three possible scenarios. The first would be separate political entities, separate autonomous states, with all the power and authority of separate states, and exercising all of the trappings of statehood, existing along side of Canada. That's clearly not the current situation.

The second contemplates a self-governing structure. A First Nation governs itself and guides the destiny of its residents, within the larger context of the Canadian political structure, and as part of the fabric of the country as a whole. The difficulty is in how to define not just the powers but the limits of authority, without ending up with a state within a state.

The last structure is one which emerges out of treaty or aboriginal rights. This is part of the ongoing negation between individual First Nations and the governments.

It is misleading in the extreme to simplistically suggest that because treaties were entered into many years ago between aboriginals and the Crown, and because treaties are only entered into between sovereign nations, that the First Nations enjoy sovereignty over what takes place in their territory. That's just not the case. Advocating this posture only creates artificial expectations.