A Case for the De Facto Development of Treaty 6 Self-Government First Nations Court and Independent Dispute Resolution System

Abstract

This paper examines the state of First Nations self-government in Canada through the lens of the Cornell/Kalt model of nation-building exercised by U.S. Tribes. The research confirms that a sufficient level of de jure and de recto support exists for First Nations in Canada to exercise de facto self-government. The de jure legal support exists in the form of treaties, constitutional recognition and protection treaty and aboriginal rights inclusive of self-government, and political recognition in the form of national policy. The de recto moral support for First Nations selfgovernment exists foremost in the fact that the treaty right of self-government is held by First Nations not by virtue of Crown grant, legislation or treaty, but by reason that they were once independent, self-governing entities in possession of most of the lands now making up Canada. This recognition continues to find expression in First Nations languages, cultures, customs and traditions, and recognition through a variety of legal instruments developed by the United Nations, most recently, the UN Declaration on the Rights of Indigenous Peoples. Lastly, the paper examines the implementation of de fact self-government by Treaty 6 First Nations and the development of a Treaty 6 First Nations Court or Dispute Resolution System. These institutions will draw on principles found in Cree law that relate to way of life, Pimacihowin; good relationships of First Nations with the Creator and with one another, Wahkohtowin; and, Miyo-wicehtowin, the principle of getting along well with others and having good relations where individuals and nations conduct themselves in a manner that creates positive or good relations in all relationships, individually or collective, with other peoples. The features of these institutions will resemble the best precedent in Canada of First Nations threebranch self-government and the Teslin Tlingit First Nations Court.