Modern Treaties in Canada: A One Hour Course → Modern Treaty Governments and Law-making Powers

Modern Treaty Governments and Law-making Powers

Chief Steve Taylor holds copies of the Tr'ondëk Hwëch'in Final and Self-Government agreements in Burwash Landing, Yukon, 2003. Self-government agreements provide modern treaty governments with significantly increased law-making powers.

An important part of governing is the ability to enact laws that respond to the evolving needs of the people being governed. Law-making powers vary between agreements, and according to whether self-government provisions are in place.

Modern treaties are carefully designed to ensure that the law-making powers of the treaty government interact effectively with the law-making powers of provincial, territorial and federal governments. In some cases, modern treaties recognize “concurrent” law-making powers, which means that laws enacted under the modern treaty government might have overlapping jurisdiction with provincial and federal governments. In other cases, a “displacement” model applies. This means that federal and provincial laws apply until laws passed by modern treaty governments displace them.

Here are a couple of examples:

Yukon First Nation self-government agreements provide that in the event of inconsistency between a law passed by a modern treaty government and a law passed by the Government of Yukon, the modern treaty government’s law “displaces” the Yukon law.

On the other hand, in the event of inconsistency between a law passed by a modern treaty government and federal law, there is provision for a future agreement between the Indigenous treaty holder and Canada which will identify the areas in which laws passed by modern treaty governments prevail over federal laws.

In the Northwest Territories, Tłı̨chǫ Nation law making powers are similar to those in Yukon. In most cases where there is inconsistency between Tłı̨chǫ laws and laws of the Government of the Northwest Territories (GNWT), Tłı̨chǫ laws prevail, and can exist concurrently with the GNWT laws. In situations where there is inconsistency between Tłı̨chǫ Nation laws and federal laws, federal law prevails. To date, the Tłı̨chǫ Nation has passed laws related to budgets, land use planning, and governance. When they begin to draw down programs and services from other jurisdictions, as the Tłı̨chǫ self-government agreement allows, many more new laws will be created.