Canadian federalism: performance,

effectiveness, and legitimacy

Author(s) Bakvis, Herman; Skogstad, Grace

Imprint University of Toronto Press, 2020

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1487570430, 9781487570460

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CHAPTER FIFTEEN

Nation to Nation? Canadian

Federalism and Indigenous
Multi-level Governance

Martin Papillon

Through local, national, and global protests and activism, court chal-
lenges and engagement in the policy process, Indigenous peoples are
today challenging the foundations of Canadian federalism.1 It is argu-
ably no longer possible for Canadian authorities to ignore Indigenous
claims for justice and recognition. The Indigenous rights movement
is now a global phenomenon, with the United Nations Declaration on
the Rights of Indigenous Peoples (UNDRIP) progressively imposing
itself as the new international standard against which state actions on
matters of relevance to Indigenous peoples are measured (Lightfoot,
2016; Barelli, 2016). In Canada, the 2015 final report of the Truth
and Reconciliation Commission (TRC) made a compelling case for
the interconnectedness of fundamental equity issues and the lack of
proper recognition of Indigenous peoples’ legal and political status
(TRC, 2015). It called for a fundamental overhaul of the institutions
governing Indigenous–settler relations, based on the principles set
forth in the UNDRIP and renewed ­nation-to-nation relationships. The
more recent report of the National Inquiry into Missing and M­ urdered
Indigenous Women and Girls (NIMMIWG, 2019) similarly called on
Canada to respect its international commitments and address the
injustice gap resulting from past and ongoing colonial policies. To its
credit, the federal government under Prime Minister Justin Trudeau
recognized the importance of these developments and chose to put
reconciliation with Indigenous peoples at the top of its government
396 Martin Papillon

agenda following both the 2015 and 2019 elections (PMO, 2015;
Governor General of Canada, 2019). Attempts at recasting our rela-
tionships have, at least so far, produced few tangible results (Rodon
and Papillon, 2019; King and Pasternak, 2018). Ongoing tensions in
relation to oil and gas infrastructures, including controversial pipe-
lines crossing traditional Indigenous territories where rights and titles
remain unsettled, further contribute to a sense that reconciliation
is rather quickly pushed aside when economic interests are at play
(Starblanket and Green, 2020). That being said, the simple fact that
Indigenous issues are now so prominent on the national political
agenda is, in itself, a significant development.
Building on the conceptual framework of the present volume, this
chapter assesses the performance, effectiveness, and legitimacy of our
federal system in addressing the challenges associated with Canada’s
colonial legacy. How, and to what extent, have the institutions and pro-
cesses of Canadian federalism responded to Indigenous claims for justice,
well-being equity, and recognition of their rights and political status?
Can Canadian federalism be reconciled with Indigenous peoples’ own
inherent sovereignty and make space for the type of nation-to-nation
relationships most of them strive for?
There are significant obstacles to a fundamental transformation of
the federation in light of Indigenous claims. Federalism, as a system
of self-rule and shared rule, should in principle be amenable to the
recognition of Indigenous peoples’ political status and jurisdictional
autonomy. However, deeply embedded assumptions about state sover-
eignty, the existing division of powers between federal and provincial
authorities, as well as institutions and practices inherited from our
colonial past have proven highly resistant to change. The diversity in
socio-economic and demographic conditions of Indigenous communities,
not to mention the particularities of each nation’s historical relation-
ship with the Canadian state, also make any consensus on institutional
reforms difficult to achieve.
That being said, some changes have taken place over the past few
decades in the everyday dynamics of Indigenous, federal, provincial,
and territorial relations. As is often the case in Canada’s federal system,
the courts have been a major driver of these changes. The emergence
of the duty to consult and other developments related to Aboriginal title
have transformed how governments and industry actors interact with
 Canadian Federalism and Indigenous Multi-level Governance 397

Indigenous communities in the context of land and natural resource

governance. The implementation of modern treaties and self-government
agreements is also reconfiguring intergovernmental dynamics in northern
regions of the country. Less visible but nonetheless important changes
have also taken place in the everyday dynamics of policy-making. Indig-
enous organizations are playing a growing, although still limited, role in
Canada’s intergovernmental system. Federal and provincial authorities
also increasingly seek to strengthen the legitimacy and effectiveness of
their policies through collaborative bilateral processes involving Indig-
enous organizations and governing authorities.
To be fair, these changes are more incremental than transformative
in nature. They do not alter the fundamental power structures in
Canadian federalism, nor do they recast what remains a profoundly
unequal relationship built on the legacy of colonialism. But they
have nonetheless led to the development of a complex and highly
diverse system of multi-level governance that coexists with, without
replacing, the structures and processes of Canadian federalism. This
chapter documents this emerging multi-level system of governance
and concludes with an assessment of its implications for Canadian
federalism.

INDIGENOUS PEOPLES AND CANADIAN

FEDERALISM: FACING THE LEGACY OF
COLONIALISM

Like all colonized societies, Indigenous peoples in Canada were forced

into a system of governance that was imposed by external powers, who
simply assumed sovereignty and claimed exclusive jurisdiction over
their lands and communities. In the process, they were absorbed into
the dominant settler political order without their consent. The final
reports of the Royal Commission on Aboriginal Peoples (RCAP, 1996)
and the more recent Truth and Reconciliation Commission (TRC, 2015)
document this process of internal and permanent colonization, from the
initial stage of diplomatic alliances and treaty making to the processes
of land confiscation, forced cultural assimilation, and dismantlement of
traditional forms of government. The impact of these colonial policies
is still felt today.
398 Martin Papillon

A Multi-Faceted Reality

According to the 2016 Census, 1,673,785 individuals self-identify as

Indigenous people in Canada, accounting for 4.9 per cent of the total
population (Statistics Canada, 2017). Of this population group, 58 per
cent identify as a member of a First Nation (or North American Indian),
another 35 per cent self-identify as Métis, and 4 per cent as Inuit, the
three groups formally recognized under section 35(1) of the Constitu-
tion Act, 1982. Beyond these statutory distinctions, there are more than
60 Indigenous nations in Canada today (RCAP, 1996, vol. 2), each with
its own traditions, history, language, and sense of collective identity.
While they are distributed across the country, 52 per cent of individuals
who identify as members of an Indigenous group or nation live in urban
areas. Indigenous groups only form a significant proportion of the pop-
ulation in the northern territories and, to a lesser extent, Saskatchewan
and Manitoba (Figure 15.1). Their capacity to mobilize the traditional
institutions of majoritarian democracy outside some very specific regions
of the country is therefore limited.
Table 15.1 presents a comparative snapshot of Indigenous well-being
compared to that of all Canadians. These aggregated statistics hide signif-
icant regional and in-group variations, but they are nonetheless telling.2
The average income of Indigenous families is 28 per cent lower than the
Canadian average. While they account for only 7 per cent of all children
aged 0–4, Indigenous children account for 51.2 per cent of all foster
children in this age group. These conditions are compounded by demo-
graphic trends; the Indigenous population is younger and growing faster
than the Canadian average. A chronic housing crisis and a lack of basic
infrastructure, such as sewage and drinking water, also affect the living
conditions in many Indigenous communities.
The statutory relationship between Indigenous peoples and the Cana-
dian state also varies. According to section 91(24) of the Constitution Act,
1867, the federal government inherited responsibility over “Indians and
the Lands reserved for the Indians.” Federal authorities have historically
interpreted this responsibility through the Indian Act, which regulates
reserved lands and establishes status rules regulating who can live on
reserves and benefit from certain federal programs and exemptions.
While most First Nations are still to this day governed under the Indian
Act, Inuit, Métis, and members of First Nations who have lost their federal
 Canadian Federalism and Indigenous Multi-level Governance 399

Figure 15.1. Geographic Distribution of the Indigenous Population

90
80
70
60
50
40
30
20
10
0
U

YK

SK

BC

AB

es
N
W

M
N

m
N

iti
ar
M
% of Indigenous people in the population
Distribution of population reporting Indigenous identity across Canada

Source: Statistics Canada (2017).

Table 15.1. Comparing the Well-being of the Indigenous and Canadian

Populations

Indigenous Overall Canadian

Population Population
Average age 32.1 40.9
Employment rate (aged 24–65) 63% 76%
No high school diploma (aged 24–65) 29% 12%
Crowded housing 18% 8%
Single-parent families 34% 17%
Children living below poverty threshold 38% 16%
Women victims of violence 23% 9%

Sources: Statistics Canada (2017, 2018); MacDonald and Wilson (2016).

status (non-status Indians) are not. As I discuss below, the Supreme Court
recently confirmed that federal responsibilities under section 91(24) apply
equally to all Indigenous groups, including Métis and non-status Indians
(Daniels, 2016). These statutory distinctions nonetheless continue to shape
both federal policy and political identities among Indigenous peoples.
It is also important to recognize the role of treaties in structuring
Indigenous–Crown relations. Most First Nations in Ontario and the Prai-
ries have signed historic treaties that settled their title to the land, but
400 Martin Papillon

in large swaths of British Columbia, Quebec, Atlantic Canada, and the

northern territories, no land cession treaties were signed. In the latter
regions, a number of far more complex comprehensive land claims and
self-government agreements were more recently negotiated, while the
claims of many other nations simply remain unsettled. These different
land and governance regimes create different institutional opportunities
and constraints for Indigenous peoples to engage in key policy sectors,
including land and natural resources management.

The Constraining Nature of Canadian Federalism

Clearly, there is not one single Indigenous reality to be addressed with

a single set of solutions. Indigenous peoples also face significant chal-
lenges related to the institutions of Canadian federalism themselves.
Although the Royal Proclamation of 1763 recognized the status of
Indigenous nations, no Indigenous representatives were invited to the
Charlottetown and Quebec conferences of 1864, where the legal and
political foundations of the Canadian federation were established. As
a result, they never consented, explicitly or implicitly, to the division
of authority over the land that resulted from the Constitution Act, 1867
(Russell, 2017). The institutions of Canadian federalism thus have very
little, if any, legitimacy from Indigenous peoples’ perspective. Their
exclusion from the federal partnership has very concrete implications
to this day. I briefly underscore four of them here: (1) it constrains their
aspirations for self-rule; (2) it limits their representation in the shared-rule
institutions of the federation; (3) it entrenches conflicts with provinces;
and (4) it reinforces their second-class status in terms of access to the
services and programs associated with Canadian citizenship.
First, and perhaps most significantly, while authority in a federation is
divided between orders of governments, the doctrine of state sovereignty
is still deeply entrenched in the British-inspired Canadian parliamentary
system. There is therefore paradoxically – for a federal system – no space
in the Canadian federation for the expression of political authority
outside the two constitutionally recognized orders of government.3 As
a result, from a strictly positivist constitutional perspective, Indigenous
governments’ self-rule authority can only be delegated from the federal
and provincial parliaments. This restrictive conception of sovereignty is
the source of major conflicts with Indigenous peoples, most notably in
 Canadian Federalism and Indigenous Multi-level Governance 401

the context of land and natural resources management. It leaves limited

space for Indigenous nations to exercise what they consider their inherent
jurisdiction on the land, as politically organized peoples predating the
creation of the federation (Borrows and Coyle, 2017; Asch, 2014). As will
be discussed below, the recognition and protection of “Aboriginal and
Treaty rights” under section 35 of the Constitution Act, 1982, did instill a
new dynamic in Indigenous–federal–provincial relations, but Canadian
courts have so far been reluctant to recognize jurisdictional rights in their
interpretation of section 35. Indigenous peoples therefore have little
option but to unilaterally assert their jurisdiction or negotiate delegated
autonomy on a case-by-case basis with federal and provincial authorities.
Second, without formal status as federal partners, Indigenous peoples
also have no statutory voice in the shared-rule institutions of the Cana-
dian federation. Indigenous organizations and governing institutions
have historically had only limited access to the important mechanisms
of “interstate federalism” associated with the growing web of intergov-
ernmental processes and institutions that characterize the Canadian
federation. National Indigenous organizations are increasingly invited
to multilateral intergovernmental meetings, but their status remains
somewhat ad hoc and their influence in the decision-making process
limited. Part of the challenge is one of representativeness. National
Indigenous organizations like the Assembly of First Nations represent
the interests of segments of the Indigenous population, but they are not
the rights holders and title holders. Their legitimacy and authority as
governmental actors therefore remain limited.
Indigenous representation in the mechanisms associated with “intrastate
federalism” also remain to this day contingent on the political context.
There is no rule requiring minimal Indigenous representation in the
House of Commons, the Senate, or the Supreme Court. The absence of
Indigenous judges on the highest tribunal is particularly striking given
the central role of the Supreme Court in interpreting Indigenous rights
and arbitrating conflicts between those rights and federal and provincial
jurisdictions. The 2015 federal election saw an unprecedented eleven
Indigenous candidates elected to the House of Commons; this number
was reduced to ten in the 2019 election. There were another eleven In-
digenous senators (out of 105) at the time of writing. The appointment
of Jody Wilson-Raybould as minister of justice in the Trudeau cabinet sent
a strong message for Indigenous representation at the executive level.
402 Martin Papillon

But as she herself conceded in the aftermath of her highly mediatized

resignation from cabinet, Indigenous ministers, MPs, and senators can
only have so much influence in a majoritarian system dominated by party
discipline and cabinet solidarity (Canadian Press, 2019).
Third, the division of powers in the Canadian federation also contrib-
utes to often tense relations between Indigenous peoples and provinces.
Especially relevant in the Canadian context is provincial authority over
public lands and natural resources. Provinces have both fiscal and po-
litical incentives to maximize regional economic development through
natural resource extraction. They have historically done so without
much regard for Indigenous rights and interests, which were seen as
a matter of federal jurisdiction. In recent years, highly visible conflicts
over hydroelectric developments, mining, oil and gas, or forestry, as
well as housing developments on public lands for which the title is still
contested by an Indigenous group, have made headlines in Canadian
media. These conflicts, which often end up in court, contribute to a
high degree of mistrust between the Indigenous peoples and provincial
authorities.
Finally, and not insignificantly, Indigenous people have long been, and
continue to be, collateral victims of the competitive nature of Canadian
federalism, especially with regards to the provision of social programs
and services. Again, the conflict revolves around the interpretation of
section 91(24) of the Constitution Act, 1867. In Daniels v. Canada (2016),
the Supreme Court clarified that federal responsibilities under section
91(24) apply to all Indigenous peoples, including Métis and non-status
Indians. This declaratory judgment was significant as it potentially limits
the federal government’s practice of differentiating Indigenous peoples
based on their status for programming and funding purposes. However,
Daniels is silent on the specific content of federal responsibilities under
section 91(24) (Isaac and Hoekstra, 2019). Debates over who should do
what therefore remain as acute as before. The federal government still
considers its funding of most Indigenous programs and services to be a
matter of policy rather than a constitutional obligation. Provinces, on
the other hand, have historically been reluctant to extend their social
programs to the Indigenous population. The result is a complex maze of
policies and programs under which it is not always clear who is account-
able for the funding and provision of services taken for granted by other
Canadian citizens.
 Canadian Federalism and Indigenous Multi-level Governance 403

In healthcare, for example, First Nations, Inuit, and Métis histori-

cally access basic medicare services through their province or territory
of residence. These services are funded through federal–provincial
cost-sharing agreements, as they are for every other Canadian. However,
provinces initially refused to extend to status Indians health programs
that fall outside of the narrow definition of medicare in the Canada
Health Act (Marchildon et al., 2017). The federal government compen-
sated by directly funding and running a range of health programs for
First Nations. These include the delivery of community-based health
programs, home care, prescription drugs, and vision and dental care,
among others. While Inuit have access to similar programs, Métis and
non-status Indians do not – a situation that is arguably no longer sus-
tainable following Daniels. The federal government also still directly
funds and delivers some primary health services on remote reserves and
Inuit communities where provincial or territorial services are not readily
available. Similar dynamics are at play in education, child welfare, social
assistance, and many other basic services (Papillon, 2019; Blackstock,
2016). This complex policy architecture creates blurry accountability
structures and a tendency for blame shifting, sometimes with dramatic
consequences. In a scathing decision from 2016, the Canadian Human
Rights Tribunal concluded that the gap in federal services and funding
for child and family services on reserves, compared with what other Ca-
nadians receive from their provinces, amounted to a form of systemic
discrimination (First Nations Child and Family Caring Society et al., 2016).
It called for significant reinvestments in federal services, but also for bet-
ter coordination among federal, provincial, territorial, and Indigenous
authorities in managing overlaps in responsibilities, including the full
implementation of Jordan’s Principle.4
In addition to lacking legitimacy as a result of Indigenous people’s
exclusion from the original federal compact, Canadian federalism has
therefore not performed well as a system of governance and is not par-
ticularly effective at addressing the numerous legacies of colonialism,
including ensuring Indigenous individuals receive the same basic services
most Canadians take for granted. In fact, the institutions and processes
of Canadian federalism have exacerbated conflicts with Indigenous
peoples and have contributed significantly to the reproduction of the
system of exclusion inherited from the colonial period. Not surprisingly,
a number of Indigenous advocates and intellectuals argue a profound
404 Martin Papillon

transformation of our federation is necessary to break with colonialism

(Borrows, 2017; Henderson, 1994; Ladner, 2009).

A Renewed Nation-to-Nation Partnership?

The redefinition of Canadian federalism in order to properly recognize

the political status of Indigenous nations has been the object of many
theoretical reflections over the years. While some have argued that Indig-
enous peoples could form a province, the small size, territorial dispersion,
and diversity of communities make such a proposal ­impractical.5 In the
context of Indigenous–settler relations, treaty federalism (Henderson,
1994), or treaty constitutionalism (Tully, 2008; Borrows, 2017; Ladner,
2009), is generally considered the alternative to the status quo most
consistent with Indigenous visions of nation-to-nation relations. The
insistence on nation-to-nation relations stems from the principle that
Indigenous peoples were organized as political societies well before
the arrival of Europeans, who themselves recognized this fact through
the negotiation of military and economic alliances and treaties. To be
sure, those early diplomatic relations were never egalitarian in nature.
Europeans were convinced of their moral, cultural, and technological
superiority and used treaties to circumvent the military threat posed
by Indigenous nations, who at the time were numerically superior. But
these agreements were nonetheless negotiated between nations. Eu-
ropean powers recognized the political status and authority structures
of the Indigenous peoples with whom they were negotiating (Russell,
2017). Indigenous peoples continue to this day to see treaties not as acts
of subjection but as acts of mutual recognition, constitutive of lasting
relationships between distinctive but interrelated and interdependent
nations (Borrows, 2017).
The revitalization of this original nation-to-nation relationship can
take different forms. For the Royal Commission on Aboriginal Peo-
ples, Indigenous governments should be recognized as a third order
of government within the Canadian federation (RCAP, 1996: 215).
Others argue instead for a treaty-based confederal model under which
Indigenous governing institutions should be fully recognized for what
they are: the expression of distinct constitutional orders that today
continue to exist in parallel to Canada’s own Constitution (Borrows,
2017). While there are nuances in their respective positions, advocates
 Canadian Federalism and Indigenous Multi-level Governance 405

of this stronger model of constitutional pluralism invite us to rethink

Canada as a double federation, governed simultaneously through
the 1867 division of powers and through the constitutional regime
established progressively through treaties between the Crown and
the original inhabitants of the land. Far from being subordinated to
the 1867 order, for its advocates treaty constitutionalism constitutes the
pillar on which the legitimacy of the Canadian state rests (Borrows,
2017; Ladner, 2009; Russell, 2017).
Treaty-based federalism and constitutional pluralism propose so-
phisticated approaches for recasting settler–Indigenous relations on
a nation-to-nation basis. These theoretical models nonetheless pose
numerous practical challenges. Most significantly, it is not clear how
shared-rule institutions would operate in a nation-to-nation model. While
the assumption in theories of treaty constitutionalism is that Indigenous
peoples should interact with Canada as a whole, it is simply impossible
to ignore the growing importance of relations with provinces and ter-
ritories. Should every single Indigenous nation have its own bilateral
relationship with both federal and provincial governments? Would
Indigenous peoples also be represented in the existing institutions
of the federation, including federal and provincial legislatures? Who
would arbitrate conflicts of jurisdictions – the Supreme Court of Canada
or a distinct and autonomous judicial body? Moreover, as Alan Cairns
(2000) argued twenty years ago in his critique of the RCAP model, it is
not self-evident how one can reconcile a treaty-based, nation-to-nation
association with a substantive conception of shared citizenship, a nec-
essary condition to foster a sense of solidarity and co-operation across
communities that are bound to live together in a common territory.
Finally, these models assume some degree of fiscal autonomy for In-
digenous governments. As history shows, equality in status means little
without some balance in resources. To avoid the cycle of dependency on
federal transfers, Indigenous governments would require own-sources
revenues. In most cases, these revenues would come from economic
activities on the land. While provinces may be willing to pursue greater
natural resources revenue sharing with Indigenous communities, they
are very unlikely to accept a significant transfer of lands and natural
resources ownership. These obstacles are not insurmountable, but
they illustrate the challenges in moving from ethical standards to more
concrete institutional reforms.
406 Martin Papillon

FROM THEORY TO PRACTICE: CHANGING

RELATIONSHIPS BETWEEN INDIGENOUS PEOPLES
AND CANADIAN FEDERALISM

Theories of treaty federalism and constitutional pluralism offer enticing

but idealized visions of a decolonized Canada. It is safe to say resistance
to such profound transformations remains strong. As shown in the first
section of this chapter, the institutional foundations and principles guiding
Canadian federalism are not particularly conducive to the recognition
of Indigenous nations as distinct sources of jurisdictional authority on
the land. Powerful and well-entrenched political and economic interests
also favour the status quo, especially within the provinces. The diversity
and complexity of Indigenous realities also mean change is more likely
to take multiple trajectories.
Faced with the slow pace of reforms and deep-seated power structures,
Indigenous peoples are no longer waiting for settler institutions to change.
They are now increasingly and sometimes unilaterally reaffirming their
decision-making authority and developing their own institutions of gov-
ernance, including through the regeneration of their ancient but never
extinguished legal orders and constitutional systems (Borrows, 2019). The
situation of Indigenous peoples in Canada is also attracting increasing
international attention, thanks to Indigenous activism on the global stage
and the international resonance of the Truth and Reconciliation Com-
mission and the more recent report of the National Inquiry on Missing
and Murdered Indigenous Women and Girls, both of which have used
the word genocide to qualify the legacy of colonialism in Canada.6 The
United Nations Special Rapporteur on the Rights of Indigenous Peoples
has repeatedly urged Canada to commit to the principles established
in the United Nations Declaration on the Rights of Indigenous Peoples
and, among others, address the well-being gap facing Indigenous peo-
ples and the question of unsettled land claims (Anaya, 2014).
Canadian federalism and the Canadian political community more
broadly are not immune to such internal and external pressures. The
Trudeau government publicly endorsed the UNDRIP in 2016 and sup-
ported a private member’s bill that would have committed Canada to
review its laws and policies to comply with the principles established in
the Declaration.7 The 2019 Speech from the Throne, opening Canada’s
43rd Parliament, further committed the government to “take action to
 Canadian Federalism and Indigenous Multi-level Governance 407

co-develop and introduce legislation to implement the United Nations

Declaration on the Rights of Indigenous Peoples in the first year of
the new mandate” (Governor General of Canada, 2019). To various
degrees, provincial governments are also committing to implementing
the ­UNDRIP.8 While it is too early to assess the impact of the UNDRIP
on the workings of Canadian federalism, it certainly creates a new stand-
ard against which the performance of its institutions will be measured.
This section documents how and through which channels the insti-
tutions and mechanisms of Canadian federalism are adapting to Indig-
enous claims for justice and growing assertiveness in establishing their
status and their jurisdictional authority. As it will become clear, none of
these developments alters the foundations and structures of Canadian
federalism. These changes are therefore best described as adaptive rather
than transformative. That being said, their cumulative impact over time
should not be neglected. Without disappearing entirely, hierarchical
systems of authority are increasingly layered with more collaborative
models of multi-level governance, under which Indigenous actors have
a growing, if not equal, role in decision-making.9 I briefly highlight
four developments that contribute to the emergence of this system
of multi-level governance: (1) the implementation of land claims and
self-government agreements; (2) the evolution of the Supreme Court’s
jurisprudence on Aboriginal and treaty rights, especially related to the
duty to consult; (3) the growing (but still relative) role of Indigenous
organizations in the machinery of intergovernmental relations; and (4)
the emergence and rapid growth of bilateral collaborative governance
processes between Indigenous organizations and federal and provincial
governments.

Modern Treaties and Self-Government Agreements

Long considered a thing of the past, treaties re-emerged in the Canadian

landscape in the aftermath of the Calder case of 1973. The Nisga’a Nation
of British Columbia went all the way to the Supreme Court to have their
governing rights on their traditional lands recognized in Canadian law.
While the Nisga’a lost their case over a technical question, a majority of
judges recognized for the first time the possibility that an Indigenous
title on the land could have survived unilateral assertion of Crown sover-
eignty in areas of the country where no historic treaties were negotiated.
408 Martin Papillon

The James Bay and Northern Quebec Agreement, signed in 1975, was
the first in a series of negotiated agreements to address the question of
unsettled claims. At the time of writing, twenty-five Comprehensive Land
Claims Agreements (CLCAs), or modern treaties, had been negotiated
and ratified in the northern territories, British Columbia, Labrador, and
Quebec. The implementation of modern treaties has direct implications
for Canadian federalism.
Unlike their historic predecessors, modern treaties are detailed
legal documents that, among other things, establish new land tenure
regimes as well as co-governance and self-governance arrangements for
their Indigenous signatories. Modern treaties vary in scope, and their
impact on federal, provincial, and territorial authorities is not uniform.
Although early treaties mostly created administrative regimes of dele-
gated authority, some of the more recent ones recognize both exclusive
and concurrent jurisdictions to Indigenous signatories in a number of
policy areas, such as environmental stewardship, education, child care,
culture, infrastructures, or the administration of justice. Most modern
treaties also establish co-management rules for land and natural resources
governance. While most co-management regimes are consultative only,
some afford Indigenous peoples a direct say in the decision-making
process (White, 2002; Rodon, 2003).
The implementation of land claims and self-government agreements
therefore gave rise to a vast array of structures and mechanisms for co-
ordinating policies across levels of government. Wilson, Alcantara, and
Rodon (2020) offer a rare comparative analysis of the impact of these
multi-level governance processes and structures in three Inuit regions
governed under a modern land claims settlement: Nunavik, Nunatsiavut,
and the Inuvialuit settlement area. They conclude the capacity of Inuit
to shape policies is significant in all three regions, but it varies from one
institutional context to another and across policy sectors.
While their impact is undeniable, modern treaties remain contro-
versial. Negotiations can drag out over decades, and some Indigenous
nations with unsettled claims simply refuse to engage in the negotiation
of modern treaties. Those who have agreed to a modern treaty are also
often struggling to have their agreement properly implemented (Fenge,
2015). Many treaty signatories end up in court defending their treaty
rights against government agencies unwilling to fulfill their part of the
deal or because of unclear divisions of responsibilities between the
 Canadian Federalism and Indigenous Multi-level Governance 409

signatories. Part of the challenge is ideational in nature and has to do

with the purpose of these agreements. Indigenous peoples tend to see
modern treaties through the prism of nation-to-nation relations: these
agreements are political compacts that should fundamentally recast
their relationship with the state. For federal, provincial, and territorial
authorities, modern treaties are seen more prosaically as legal transac-
tions aimed at securing access to the land for economic development
purposes. The primary objective for Canadian governments is “to obtain
certainty respecting ownership and use of lands and resources” (Abo-
riginal Affairs and Northern Development Canada, 2014). The federal
government has used different formulae over time to guarantee this
legal certainty, but it generally requires that Indigenous signatories
suspend or limit the exercise of their inherent rights in exchange for
the rights and benefits defined in the treaty. This approach is obviously
not consistent with a nation-to-nation vision of treaties as agreements
between co-equal sovereigns. Indigenous peoples who enter the modern
treaty process are effectively accepting a trade of their inherent authority
on the land for a more limited – although potentially significant –
recognition within the Canadian constitutional regime. Not all Indigenous
nations are willing to make that choice, especially in light of recent court
decisions that open alternative avenues for establishing their inherent
jurisdiction on the land.

Judicial Interpretation of Aboriginal and Treaty Rights

and the Duty to Consult

Courts play a central role in arbitrating conflicts in Canada’s federal

system. They also are key players in defining the parameters of relations
with Indigenous peoples. This is especially true since the recognition
of Aboriginal and treaty rights in section 35(1) of the Constitution Act,
1982. Section 35 rights operate as a constitutional shield setting partial
limits on federal and provincial authority to regulate or impact Indige-
nous activities inherent to their cultures and traditional practices, most
notably in the context of land, wildlife, and natural resources manage-
ment. There is no space here to provide a comprehensive review of the
Aboriginal rights jurisprudence (see Wilkins, 2018). I nonetheless want
to briefly underscore three developments with particular relevance to
Canadian federalism.
410 Martin Papillon

First is the progressive displacement of section 91(24) of the Con-

stitution Act, 1867 to the profit of section 35(1) of the Constitution Act,
1982 as the primary constitutional anchor for defining relationships
between Indigenous peoples and Canadian federalism. As discussed,
section 91(24) assigns to the federal government exclusive jurisdiction
over “Indians and the Lands reserved for the Indians.” This was until
recently assumed to establish a privileged and unique relationship be-
tween the federal Crown and Indigenous peoples. With some exceptions,
provincial laws were presumed invalid when interfering with exclusive
federal jurisdiction over “Indians” under the doctrine of interjurisdic-
tional immunity. I have already discussed the jurisdictional confusion
created by this division of powers based on status and identity rather
than policy sectors. In a series of recent decisions, the Supreme Court
has progressively displaced the centre of gravity of Indigenous–Crown
relations by limiting the reach of federal exclusivity under section
91(24) and by increasing the role and responsibilities of provinces
under section 35(1). While the court confirmed in Daniels that federal
jurisdiction under section 91(24) applies to all Indigenous peoples,
it also refused to define the scope of this responsibility. Instead, in a
number of recent cases it insisted on expanding provincial responsibil-
ities and limiting the application of the doctrine of interjurisdictional
immunity in the context of infringement on Aboriginal and treaty
rights, notably in relation to the duty to consult (see especially Grassy
Narrows, 2014, and Tsilhqot’in, 2014). The long-term implications of this
shift away from the doctrine of interjurisdictional immunity could be
profound for Indigenous peoples, who can no longer pretend to have
an exclusive relationship with the federal Crown (Isaac and Hoekstra,
2019; Borrows, 2017).
The second jurisprudential development to underscore is the emer-
gence of the (federal and provincial) Crown’s duty to consult and, when
necessary, to accommodate Indigenous peoples when the exercise of their
rights might be affected by a government decision or conduct (Haida,
2004). This duty to consult is having a major impact on the governance
of lands and natural resources in Canada. Indigenous peoples now have
a legal anchor to demand a greater role in the regulatory processes
associated with the authorization of resource extraction projects on
their traditional territories. Faced with the potential economic costs of
protracted legal challenges, governments and private promoters are now
 Canadian Federalism and Indigenous Multi-level Governance 411

forced to establish an array of mechanisms to consult, accommodate, and

in some cases negotiate with Indigenous peoples over the environmental
and social impact of projects, as well as share their economic benefits
(Papillon and Rodon, 2017).
The implementation of this jurisprudential doctrine is proving
controversial and complex. The court has thus far defined the modal-
ities of the duty to consult on a case-by-case basis, using a spectrum
approach under which the scope of the Crown’s obligation depends
on the nature of the project and its potential impact on Aboriginal
rights. This approach has created a high degree of uncertainty as
there are few criteria to clearly establish the level of required con-
sultation and accommodation measures. Conflicts surrounding the
Trans Mountain extension pipeline illustrate the perils in minimizing
consultation with Indigenous peoples in the name of political and
economic expediency. A group of Indigenous nations successfully
challenged the federal process for approving the pipeline at the
Federal Court of Appeal. The court ultimately quashed the cabinet
authorization of the project and required a new round of more
substantive consultations with affected Indigenous communities
(Tsleil-Waututh Nation, 2018).
While the duty to consult is arguably changing the way governments
approve natural resource extraction and transportation projects in
Canada, it remains a second-best alternative for Indigenous peoples
who seek to assert their jurisdiction on the land. The Supreme Court is
very clear that Indigenous peoples do not have a veto on government
decision-making processes. The Crown (both federal and provincial)
remains ultimately responsible for the final decision (Haida, 2004:
42). The duty to consult also remains grounded in a relatively limited
conception of Indigenous participatory rights, especially compared to
the principle of free, prior, and informed consent (FPIC) emphasized
in the United Nations Declaration on the Rights of Indigenous People
(see especially articles 19 and 32).
The third key development directly concerns Indigenous jurisdic-
tional rights on the land. In its 2014 Tsilhqot’in decision, the Supreme
Court recognized for the first time an existing Aboriginal title, that
of the Tsilhqot’in Nation, over 1,750 square kilometres of land in
central British Columbia. The Aboriginal title, the court specified, is
a proprietary right that includes ownership of surface and subsurface
412 Martin Papillon

rights. From this declaration of Aboriginal title, the court added,

follows the requirement to obtain Tsilhqot’in consent to economic
activities on their lands. Again, this is not an absolute veto; the
Crown can infringe on the Aboriginal title for a “compelling and
substantial public purpose,” but this decision is arguably as close
as it gets in terms of recognizing an Indigenous jurisdiction on
the land. The possibility that other Indigenous nations could see
their title declared in court is also a game changer in areas like
British Columbia and parts of Quebec and the Atlantic provinces,
where no land cession treaties were signed. While it is subject to a
number of limitations, the declaration of title creates an additional
judicial lever for Indigenous peoples to establish their legitimacy as
decision-making actors in land and resources management. It also
offers an alternative to the lengthy and costly process of negotiating
land claim agreements.

Indigenous Participation in the Processes of Executive

Federalism

As was noted earlier, a central element compounding the limited legit-

imacy of Canadian federalism for Indigenous peoples has been their
exclusion, as political entities, from its institutions and processes. The
growing presence of Indigenous organizations in intergovernmental
forums is undoubtedly an important development in this respect, even
if their role remains for the moment limited and their participation
governed by rather vague rules.
The inclusion of Indigenous organizations in the mechanisms of
Canadian intergovernmental relations (IGR) is not new. It dates back
to the constitutional negotiations of the 1980s and early 1990s. Between
1983 and 1987, national Indigenous organizations were directly involved
in the intergovernmental negotiations dedicated to the definition of
­Aboriginal rights under section 35(2) of the Constitution Act, 1982. Despite
its ultimate failure, this process allowed the organizations involved to gain
legitimacy and significant experience in dealing with the intricacies of
intergovernmental negotiations. With the demise of mega-constitutional
negotiations, Indigenous organizations lost some of their leverage and
their participation in the various mechanisms of intergovernmental
relations became more sporadic.
 Canadian Federalism and Indigenous Multi-level Governance 413

Figure 15.2. Indigenous Issues and Indigenous Participation in

Ministerial IG Forums
30

25

20

15

10

0
2012 2013 2014 2015 2016 2017

Mention of Indigenous issue Indigenous participants

Source: Data collected by author with help from the Canadian Intergovernmental
Conference Secretariat.

In recent years, Indigenous organizations have become more assertive

and effective in putting Indigenous issues on the intergovernmental
agenda. This shift can be traced back to the 2005 Kelowna Accord, a
multilateral (federal–provincial–territorial–Indigenous) intergovern-
mental agreement proposing a five-year plan to foster socio-economic
development in Indigenous communities. While the accord was never
implemented by the newly elected Conservative government of Stephen
Harper, it created a precedent for Indigenous representation in inter-
governmental forums dealing with social and economic issues.
Indigenous representation in IGR forums is now a common prac-
tice at all levels of the intergovernmental system, from administrative
meetings to political summits among elected officials. While Indigenous
participation in IGR is hard to measure, Figure 15.2 presents one way
to quantify the change in recent years. It traces the number of publicly
available intergovernmental press releases that mention Indigenous
issues and those explicitly mentioning the presence of Indigenous
representatives between 2012 and 2017. The data are only available for
certain meetings at the ministerial level, but we can confidently suggest
414 Martin Papillon

the pattern is reproduced at the administrative level, where most of the

daily work of intergovernmental coordination is actually taking place
(Gauvin and Papillon, 2020).
Indigenous organizations are also active at the interprovincial level. A
one-day session between national Indigenous organizations and premiers
in advance of the annual meeting of the Council of the Federation (CoF)
has been a routine practice since 2004. Some Indigenous organizations
have been boycotting this pre-meeting in recent years, arguing they should
be considered full-fledged members of the CoF instead of simply guests
in a side meeting (Wesley, 2017). At the ministerial level, a permanent
Aboriginal Affairs Working Group was established in 2009 for Indige-
nous organizations and provincial officials to work on common issues.
In 2016, the federal government formally joined the group, which was
renamed the Federal-Provincial-Territorial-Indigenous Forum (FPTIF).
While it is becoming routinized, Indigenous participation in the IGR
system is still not entirely institutionalized. Nor is the impact of this par-
ticipation all that clear. The status of Indigenous organizations in such
meetings is variable. Although they are sometimes full participants, they
are more often simply observers or guests with a more limited role in dis-
cussions, as is the case for the CoF. While there are exceptions, Indigenous
organizations also generally have a limited role in setting the agenda of
meetings. As such, if they are certainly more than stakeholders, they are
still not full-fledged partners in the machinery of executive federalism.
There are obvious structural challenges to a stronger Indigenous role
in IGR forums. With the multiplication of meetings comes a risk of over-
stretching the resources of what are relatively small organizations. But even
if resources were sufficient, there are limits to the representational capacity
and legitimacy of national Indigenous organizations. National Indigenous
organizations like the Assembly of First Nations or the Inuit Tapiriit Ka-
natami represent the interests of segments of the Indigenous population,
but they are not governments or nations in themselves. Their legitimacy
and authority as governing actors therefore remain limited, as does their
capacity to commit their respective membership to a particular position
or to negotiate the necessary political compromises involved in intergov-
ernmental policy-making, especially on matters affecting the rights of their
constituents. Without changes to the structure of these organizations to
ensure their representativeness and their capacity to act on behalf of their
constituents, their role in intergovernmental forums will remain limited.
 Canadian Federalism and Indigenous Multi-level Governance 415

Collaborative Policy-Making and Bilateral Forums

The developments discussed thus far concern fairly high-profile aspects

of the relationship between Indigenous peoples and Canadian feder-
alism. Some fundamental, though less visible, changes are also taking
place at the level of policy-making. Faced with a growing legitimacy
deficit and increasing coordination challenges linked to the complex
web of constitutional rights, treaties, and self-governance institutions
that have emerged over time, federal, provincial, territorial, and mu-
nicipal authorities increasingly engage in collaborative policy-making
with Indigenous organizations and governing authorities. These col-
laborative governance exercises take multiple forms. Some are trilateral
(federal–provincial/territorial–Indigenous). Some are bilateral. Some
are formalized through agreements while others are more ad hoc and
limited in time. Their scope and effectiveness also vary considerably.
While some processes lead to successful collaboration and innovative
policies, others produce little more than time-consuming meetings with
little to show for it. Producing a comprehensive and accurate portrait
of these mechanisms is an almost impossible task. I limit myself here to
the description of some recent developments at the federal level and
discuss some of the implications of growing bilateral relations between
Indigenous peoples and the provinces.10
After years of difficult relations under the Conservative government
of Stephen Harper, the Trudeau Liberals sought to instill a new collabo-
rative culture with Indigenous peoples. In its first mandate, the Trudeau
government notably established a series of bilateral and multilateral
mechanisms to facilitate dialogue and jointly develop the new policies
and legislative initiatives associated with its reconciliation agenda. In ad-
dition to an annual cabinet meeting with key Indigenous organizations,
bilateral mechanisms were created with Inuit, Métis, and First Nations,
alongside numerous sectoral tables, including education, health, child
welfare, treaty implementation, self-government funding, and justice
reforms (CIRNA, 2018b). Eighty specific tables were also established
to negotiate new governance and funding arrangements directly with
Indigenous communities, groups, and nations (CIRNA, 2018a).
This model of collaborative policy development is certainly potentially
more consistent with a nation-to-nation view of the relationship, but the
real test remains in the Indigenous representatives’ ability to influence
416 Martin Papillon

government decisions. These developments are still ongoing, but so far,

some of these discussion tables have resulted in a real policy co-development
process, including on funding for self-governing Indigenous governments
(Nicol et al., 2020), while others remain more contentious. For example,
the collaborative process to develop a Recognition and Implementation
of Indigenous Rights Framework designed to replace the existing com-
prehensive land claims and self-government negotiation policies was
marred by conflict and, at time of writing, remains in a stalemate (King
and Pasternak, 2018). In other cases, the federal government chose to go
ahead with policy reforms without full Indigenous support, such as with
the Indigenous languages legislation and child and family welfare reforms
adopted in 2019. While potentially innovative in their approach, the per-
formance of these collaborative tables in creating the conditions for true
policy co-development and in addressing the most pressing issues facing
Indigenous peoples is therefore mixed at best and highly contingent. A
comprehensive comparative review would be required to assess the fac-
tors leading to their success or failure, as well as the true influence of the
Indigenous organizations that participated in these processes.
While much attention is given to policy-level collaboration at the
federal level, provinces, territories, and municipalities are also more
than ever seeking collaborative processes with Indigenous authorities.
In the case of provinces, which have long resisted the formalization of
their relationships with Indigenous peoples, the change is remarkable
and is intimately tied to the judicial developments concerning Aboriginal
and treaty rights discussed above. Until the early 2000s, only a handful
of provinces had a dedicated ministry or secretariat for relations with
Indigenous peoples. Now, all provinces and territories do. The staff
and budget for these units is variable and very much contingent on the
government of the day, but the overall pattern is towards deeper and
more systematic, if not necessarily always more constructive, engagement.
A search limited to provincial government websites reveals close
to 500 bilateral, trilateral, or multilateral political and administrative
governance agreements were negotiated with Indigenous governments
and organizations between 2000 and 2017 (Figure 15.3).11 The growth
post-2005 corresponds to judicial developments concerning the duty to
consult, which as mentioned forced provinces to systematically engage
with Indigenous peoples over land and resources management issues.
While the latter constitute by far the most prominent policy area for
 Canadian Federalism and Indigenous Multi-level Governance 417

Figure 15.3. Indigenous–Provincial Agreements 2000–17

60

50
NUMBER OF AGREEMENTS

40

30

20

10

0
00
01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
20
20
20
20
20
20
20
20
20
20
20
20
20
20
20
20
20
20
Source: Author’s compilation based on publicly available data from provincial
governments.

provincial–Indigenous agreements (45 per cent), other agreements

cover ­areas such as economic development (14 per cent), social policy
(10 per cent), justice (7 per cent), and infrastructure (8 per cent).
A ­significant number of “relationship” agreements (17 per cent) also
seek to define the principles guiding bilateral relations and/or establish
formal coordination channels at the political or administrative levels.
British Columbia is by far the most active province in negotiating agree-
ments with Indigenous peoples (more than 200 in the past fifteen years).
The jury is still out on these multiple agreements and processes. Not
all are equivalent in scope, nature, and impact. Some are simply joint
statements establishing the groundwork for future arrangements, while
others create more substantial responsibilities. Even in the case of more
substantial agreements, the status of the Indigenous partner in resulting
governance arrangements and decision-making processes can vary con-
siderably, from a relatively limited consultative role to a central position
in the decision-making process. Again, British Columbia arguably is the
most innovative jurisdiction in Canada in this respect (Hudson, 2018).
Recent agreements in the context of natural resources management
recognize the principle of Indigenous consent and commit the province
to unique forms of joint impact assessment and joint decision-making
(Curran, 2019). British Columbia also successfully collaborated with
418 Martin Papillon

Indigenous organizations to develop a legislative framework committing

the province to implement the UNDRIP (British Columbia, 2019).
Like multilateral IGR, the multiplication of bilateral processes, tables,
negotiations, and follow-ups can also put a severe strain on the already lim-
ited resources of small Indigenous governments and organizations. Very few
have the capacity to negotiate, let alone ensure the implementation of all
these agreements. Anecdotal evidence in assessing the performance of these
governance mechanisms, based on a limited number of interviews, suggests
a good number of bilateral agreements are simply not implemented, thanks
to a lack of follow-up mechanisms or inadequate resources and expertise
on either side. Moreover, as with all other developments documented in
this section, bilateral and trilateral policy processes, tables, and agreements
do not, in and of themselves, change the status of Indigenous governments
within the Canadian federal system. They nevertheless constitute a relatively
effective innovation to compensate for the lack of legitimacy of classic fed-
eral institutions and mechanisms. They also allow Indigenous authorities
(at least those recognized by the Canadian state) to engage more directly
in policy development to address some pressing issues without jeopardizing
their broader jurisdictional claims. If anything, through these multi-level
agreements and processes, federal and provincial authorities de facto rec-
ognize the essential role Indigenous governments and organizations play
in ensuring the legitimacy and effectiveness of their own policy processes.

CONCLUSION: A MOSAIC OF MULTI-LEVEL

GOVERNANCE RELATIONS

The relationship between Indigenous peoples and Canadian federalism

remains uncertain and tentative. Their initial exclusion from the federal
compact still looms large today, affecting not only the legitimacy but also the
performance and effectiveness of the institutions and processes of Canadian
federalism. While it is now part of the political vernacular among politicians
and the mainstream media, the nation-to-nation or government-to-government
model advocated by a large majority of Indigenous leaders, intellectuals,
and advocates remains more theoretical than real. Multiple factors work
against a significant reform of Canadian federalism to that effect, most sig-
nificantly the institutional resilience of existing practices and conceptions
of state sovereignty and governmental authority. The multi-layered political
 Canadian Federalism and Indigenous Multi-level Governance 419

structures and profound diversity in the demographic and socio-economic

conditions of Indigenous peoples also compound these difficulties.
That being said, significant shifts have taken place in the everyday
workings of Canadian federalism. Although they remain firmly anchored in
the Canadian constitutional regime, modern treaties and self-government
agreements provide their Indigenous signatories with unprecedented
leverage to chart their own course on internal matters and develop multi-
level governance capacities. The duty to consult on matters affecting
Aboriginal and treaty rights and the legal uncertainty resulting from title
claims also create new levers for Indigenous engagement in the policy
process in the context of natural resource development. The growing
participation of Indigenous organizations in the mechanisms of exec-
utive federalism is another significant development. While it raises its
own set of issues in terms of legitimacy and accountability, Indigenous
participation in executive federalism suggests a de facto recognition that
Indigenous peoples should have a say in the definition of the intergov-
ernmental agenda of the federation. The growing use of bilateral and
multilateral collaborative policy processes at the federal and provincial
levels similarly suggests that pragmatic adjustments are being made to
make room for Indigenous agency in defining the policy agenda. Last,
but not least, the United Nations Declaration on the Rights of Indige-
nous Peoples is progressively becoming the new standard against which
the actions of Canadian governments are measured. While UNDRIP
implementation remains contentious in Canada, its potential to shape
our normative landscape should not be underestimated.
The cumulative effect of these changes to the institutions and pro-
cesses of Canadian federalism is hard to assess. As I have noted, these
developments are so far more incremental than transformative; they do
not alter the foundations of the Canadian federal system and are unlikely
to address its fundamental lack of legitimacy from Indigenous peoples’
perspective. Are these new institutions and mechanisms performing
well in facilitating reconciliation and a more collaborative approach to
policy-making? Anecdotal evidence suggests substantive policy changes
are limited and conflicts are still significant.
Still, these developments point to an important trend: the multipli-
cation of sites and actors engaged in Indigenous-related policy-making.
While long the sole domain of federal jurisdiction, Indigenous policy is
now a multi-actor and multi-level affair. Indigenous band councils, tribal
420 Martin Papillon

councils, and self-governing bodies, as well as a vast array of local, regional,

provincial, and national Indigenous organizations, are now increasingly
engaged at various stages of the policy process. But Indigenous actors
are not alone. I have underscored the growing role of provinces in this
chapter, but territories and municipalities are also increasingly proactive
at developing their own approaches and mechanisms to facilitate rela-
tions with Indigenous people. Corporate actors in the natural resource
extraction sector are also increasingly proactive at developing private
arrangements with Indigenous communities. Indigenous governance
is becoming a much more complex and more crowded field as a result.
This emerging system of multi-level governance is far from uniform.
The political clout of Indigenous nations varies considerably according
to their demographic and geographic situation, as well as their legal and
institutional resources. There are also significant variations across policy
sectors, which I could not explore in detail here. It is therefore perhaps
more accurate to talk of a mosaic of multi-level governance relations,
each with its own institutional framework and evolving dynamics. While
these multi-level governance relations do not replace the old colonial
order with a new nation-to-nation regime, they nevertheless change, for
better or worse, how Indigenous peoples interact with the institutions
of Canadian federalism. Only time will tell whether such incremental
adaptations eventually lead to more legitimate and more constructive
relationships between the Canadian federation and Indigenous peoples.

NOTES

1 Following the recent practice in the Canadian context, the term “Indigenous
peoples” is preferred to the formally recognized term “Aboriginal peoples,”
except when referring to official policies or laws. Canada formally recognizes
three “Aboriginal” groups: Métis, Inuit, and First Nations (still often re-
ferred to as Indians). Distinctions are made between these three groups and
­between specific nations and communities whenever relevant in the text.
2 Unless otherwise specified, data in this section are from Statistics Canada
(2018).
3 According to the oft-repeated doctrine established by the Judicial Commit-
tee of the Privy Council, “whatever belongs to self-government in Canada
belongs either to the Dominion or to the provinces, within the limits of
the British North America Act” (A.G. Ontario [1912]).
 Canadian Federalism and Indigenous Multi-level Governance 421

4 Jordan’s Principle is a child-first approach to jurisdictional disputes that re-

quires the government of first contact to fund health and social services to
First Nations children that are normally provided to other Canadian children
and to address payment issues later. It is named after Jordan River Anderson,
a five-year-old boy from Norway House First Nation who died in a hospi-
tal while federal and provincial authorities in Manitoba argued over their
responsibilities for the costs of his home care treatments. See Blackstock
(2016).
5 The obvious exception here is Nunavut, where Inuit form a majority on a
significant territory.
6 The TRC qualifies the term, using the concept of “cultural genocide,”
while the NIMMIWG simply uses “genocide.” Without engaging in a com-
plex debate on the appropriateness of these terms, it is safe to say they
have powerful resonance in the international context and cast Canada in
an unusual position in terms of its human rights record.
7 Bill C-262, An Act to Ensure that the Laws of Canada Are in Harmony with the
United Nations Declaration on the Rights of Indigenous Peoples, died on the
Senate’s order paper at the end of the Spring 2019 parliamentary session
following Conservative senators’ delaying tactics.
8 At the time of writing, British Columbia was the only jurisdiction to
have formally adopted the UNDRIP though legislation (British Colum-
bia, 2019).
9 I use multi-level governance (MLG) here to describe processes and mecha-
nisms of governance involving a variety of state and non-state actors across
jurisdictional scales (local, regional, national, etc.) engaged in joint or col-
laborative policy-making and policy implementation. Unlike much of the
literature on MLG, I do not assume these processes are non-hierarchical.
For more detailed conceptual discussions of MLG in the context of Indig-
enous–federal–provincial relations in Canada, see, among others, Papillon
(2015) and Alcantara, Broschek, and Nelles (2015).
10 For a discussion of relations with municipalities, see Alcantara and Nelles
(2016).
11 This is an approximation. Many administrative agreements are not pub-
licly listed. The search was conducted using provincial websites, annual
reports, and estimates.

GLOSSARY

constitutional pluralism The idea that Canada’s Constitution includes

not only the 1867 and 1982 Constitution acts (and their amendments),
but also Indigenous constitutional laws and traditions that predate the
imposition of British rule. The coexistence of multiple constitutional
orders should be regulated through treaties between the Crown and
Indigenous peoples.
422 Martin Papillon

duty to consult The obligation on federal and provincial governments to

consult, and, when necessary, accommodate Indigenous peoples when
the exercise of their rights might be affected by a government decision or
conduct.
free, prior, and informed consent (FPIC) As defined in the United Nations
Declaration on the Rights of Indigenous People, it commits governments
to seek (and under certain circumstances obtain) the consent of
Indigenous peoples in advance of a legislative measure or an executive
decision that may affect their rights and traditional territories. It notably
empowers Indigenous peoples to participate more actively in the decision-
making process concerning natural resource extraction projects on their
ancestral lands.
non-status Indian A person of First Nations descent who is not registered
under the Indian Act.
Royal Proclamation of 1763 Sets out governmental arrangements for the
colonies that Britain had acquired from France and Spain with the end
of the Seven Years’ War. It also states the British Crown’s commitments
to “Indian nations or tribes” whose lands lay to the west of Quebec. It
acknowledged that Indians possessed the lands they lived on.
treaty federalism (also referred to as treaty constitutionalism) A concept that
explicitly identifies negotiated agreements between Indigenous peoples
and other sovereign actors (governments) as constitutional documents.
Treaty federalism recognizes a nation-to-nation relationship between
Indigenous peoples and Canadian provincial and federal governments.
United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP) Adopted in 2007 at the UN General Assembly, this non-
binding but highly influential declaration charts the fundamental
principles that should guide relations between states and Indigenous
peoples. It notably recognizes the right of Indigenous peoples to self-
determination. Canada initially voted against the UNDRIP in 2007 but has
endorsed it since. At the time of writing, the Legislative Assembly of British
Columbia is the only jurisdiction in Canada to have adopted UNDRIP
implementation legislation. The Trudeau government committed to table
similar legislation in Canada’s Parliament within the first year of its second
mandate.

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CASES

A.G. Ontario v. A.G. Canada, [1912] A.C. 571.

Calder et al. v. Attorney-General of British Columbia, [1973] S.C.R. 313.
Daniels v. Canada (Indian Affairs and Northern Development), [2016] S.C.R. 12.
First Nations Child and Family Caring Society of Canada et al. v. Attorney General
of Canada (for the Minister of Indian and Northern Affairs Canada), [2016]
CHRT 16.
Grassy Narrows First Nation v. Ontario (Natural Resources), [2014] 2 S.C.R. 447.
Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511.
Tsilhqot’in Nation v. British Columbia, [2014] 2 S.C.R. 256.
Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153.