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Tuesday, 22 January 2008
Which models of governance ?
From an intellectual standpoint, any investigation into the conditions of indigenous governmental autonomy requires a simultaneous extension of our concept of governance and, from an analytical standpoint, the definition of dimensions likely to delimit a comparison of governance models and the modalities of interaction between orders of governance. During the last century, as we have witnessed, the definition of indigenous governance was largely framed in the restrictive terms of a completely specific "indigenous law", the parameters of which have been laid out in our preceding discussion. The structures of indigenous governance were widely imposed within the framework of a relationship postulating, and simultaneously imposing, the dependency of indigenous peoples. The relational dimensions (economic, social or political) of such governance were thereby defined unilaterally by canadian political and legal authorities.
This model of governance still widely characterizes relations between the orders of indigenous and non-indigenous governance. Yet, it is the legitimacy and the viability of this model that are essentially disputed today, both community-wide and from a national and international standpoint. This argument has widely favoured a turnover of the meaning of what the activities of governance include and implies a reversal of the ties between the relational and legal dimensions of such governance.
This perspective turnover has spurred a new reflection on the conditions for surpassing the stumbling blocks encountered until now by the expression and materialization of governmental autonomy. The fundamental question consequently takes the following form: What are the foundations and possible forms of contemporary indigenous governance? This primary question inevitably leads to another: What forms of interaction may be established between forms of indigenous and non-indigenous governance? It is immediately implied that several models of governance and interaction may be envisaged depending on the perspective that is chosen…
Tuesday, 15 January 2008
The Trap of Existing Legal and Political Terms of Reference
The principle of Aboriginal self-government is fraught with numerous difficulties. These include the trap of using existing legal and political terms of reference. In response to the restrictions imposed by legal discourse, and more specifically the use of the classic terms of reference put forward by Western law (public or private), any reflection on Aboriginal self-government means going beyond the terms that currently form the basis of relations between Aboriginal and non-Aboriginal. New terms of reference must be defined. It must be recognized that the use of concepts such as sovereignty, community or territory hide significant differences depending on whether they are used in an Aboriginal or non-Aboriginal context. Similarly, it is the use of band and reserve that leads to the definition of “off-reserve” status”. It is recognition of “Indian” status that sets the framework for recognition of “Métis” status. What is more, it is the ideological foundations of these categories that pose a problem. Premises implicit to Western law and legal positivism (often based on the concept of individual rights) are often at odds with the representations that form the basis for the legitimacy of future Aboriginal government (partly based on the concept of collective rights). What should be done, what new terms of reference should be defined, and how should terms of reference from the different traditions of Aboriginal law be used to create a new frame of reference?
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