Indigenous Governance, Treaties and Crown-Indigenous Relations

Governments older than Canada

Long before 1867, the land now called Canada was home to many self-governing nations with their own laws, leaders, diplomacy and treaties with each other. Those nations are still here. Today there are more than 630 First Nations across Canada (more than 130 in Ontario), as well as Métis and Inuit governments and organizations.

Understanding governance in Canada means understanding three kinds of relationships: Indigenous governments with their own citizens, Indigenous nations with the Crown (through treaties and the Constitution), and Indigenous governments with federal, provincial, territorial and municipal governments.

Governing systems that predate or exist alongside the Indian Act

Indigenous governance is diverse. Some examples:

• Haudenosaunee Confederacy: the Great Law of Peace unites the Mohawk, Oneida, Onondaga, Cayuga, Seneca and Tuscarora nations. In the traditional system, clan mothers select chiefs and can remove them, and the Confederacy Council makes decisions by consensus. The Confederacy has issued its own passports, as an expression of its sovereignty.
• Anishinaabe nations (including Ojibwe, Odawa, Potawatomi and Algonquin peoples) have traditionally organized responsibilities through clan (doodem) systems, with decisions made in council.
• Inuit communities traditionally made decisions through respected elders and community consensus. Today Inuit are represented nationally by Inuit Tapiriit Kanatami, and in Nunavut, created in 1999 after the Nunavut land claims agreement, Inuit are the majority in a public government that all residents vote for.
• Métis governance has roots in self-governing communities, such as the buffalo hunt councils and the provisional government at Red River (1869 to 1870). Today the Métis Nation of Ontario is a Métis government with elected leadership and has signed agreements with Canada recognizing the Métis right to self-government.

These systems are not just history. Many operate today, sometimes alongside an Indian Act council in the same community.

Governing systems created by the Indian Act

The Indian Act (1876) gave the federal government wide control over First Nations people with status and over reserve lands. Among other things, it:

• defined who the government recognized as an "Indian" (status);
• imposed elected band councils (a chief and councillors), replacing traditional governments in many communities. At Six Nations of the Grand River, for example, Canada replaced the Confederacy Council with an elected band council in 1924. The Confederacy Council continued to meet and still does;
• for decades banned ceremonies such as the potlatch (from 1884 until 1951) and, through amendments, made attendance at residential schools compulsory.

The Indian Act is still in force, though it has been changed many times. Today a First Nation may choose its council in different ways: under Indian Act election rules (two-year terms), under its own custom election code, or under the First Nations Elections Act (2014), which allows four-year terms. Band councils run services such as on-reserve housing, schools, water systems and economic development, often with federal funding.

Self-government agreements and modern treaties

Since the 1970s, many nations have negotiated modern treaties (also called comprehensive land claims agreements, starting with the James Bay and Northern Quebec Agreement of 1975) and self-government agreements that replace parts of the Indian Act with the nation's own laws. The Nisga'a Final Agreement in British Columbia (in effect since 2000) is a well-known example. In Ontario, a group of Anishinabek First Nations signed an agreement with Canada, put into law by Parliament in 2017, giving them control of their own education systems.

Treaties and the treaty relationship

A treaty is an agreement between nations. Treaties between Indigenous nations and the Crown include:

• Peace and Friendship Treaties (1700s, in the Maritimes and Québec), about peace and trade, not land.
• Upper Canada land surrenders and the Robinson Treaties (1850) in what is now Ontario.
• The Numbered Treaties (1871 to 1921), including Treaty 3 (1873) and Treaty 9 (1905 to 1906, with later adhesions) in northern Ontario.
• Modern treaties since 1975.

Many First Nations understand treaties as agreements to share the land and live as partners, based on oral agreements and wampum. One example is the Two Row Wampum (Kaswentha), which the Haudenosaunee understand as an agreement made with Dutch traders in the early 1600s: two parallel rows, two vessels travelling side by side, neither steering the other. The written English texts of many treaties instead describe Indigenous nations surrendering land. This difference in understanding is at the heart of many disputes today.

Section 35 of the Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of the Indian (First Nations), Inuit and Métis peoples. Courts have ruled that the Crown must act according to the honour of the Crown and has a duty to consult (and sometimes accommodate) Indigenous peoples before decisions that may affect their rights (for example, Haida Nation, 2004).

Crown-Indigenous relations today

• Two federal departments lead: Crown-Indigenous Relations and Northern Affairs Canada (treaties, self-government, claims) and Indigenous Services Canada (services such as on-reserve health and water). Ontario also has a ministry responsible for Indigenous affairs.
• In 2015 the Truth and Reconciliation Commission issued 94 Calls to Action.
• In 2021 Parliament passed the United Nations Declaration on the Rights of Indigenous Peoples Act, committing Canada to align its laws with the UN Declaration.
• In 2019 Parliament passed a law recognizing Indigenous jurisdiction over child and family services; the Supreme Court of Canada upheld it in 2024.

Claims to sovereignty. Some nations hold that they never gave up their sovereignty. Wiikwemkoong Unceded Territory on Manitoulin Island did not sign the 1862 Manitoulin Island treaty and identifies itself as unceded. The Algonquins of Ontario are negotiating a land claim covering a large area of eastern Ontario, including Ottawa, that was never covered by a land-surrender treaty.