Nation-building in 21st century Canada: the role of legitimacy in the transformation of Crown-First Nations relations

• Main Author: Nickason, Millicent Frances
• Format: Text
• Language: unknown
• Published: Allard Research Commons 2020
• Subjects: Law; Canada; First Nations
• Online Access: https://commons.allard.ubc.ca/theses/561; https://open.library.ubc.ca/cIRcle/collections/ubctheses/24/items/1.0395581

Canada is on the cusp of an important phase of its nation-building project: the transformation of Crown-Indigenous relationships to give effect to Indigenous peoples’ right to self-determination, and to include First Nations in the Canadian federation as equal partners and a third order of government. However, after nearly three decades and billions of dollars committed to negotiations, few First Nations exercise genuine self-government, and few arrangements reflect First Nations’ aspirations for self-determination. Meta-analysis and gap analysis demonstrate gaps in our understandings and expectations of self-determination and self-government, and between the promises and performance of Canadian governments. Canada’s legal framework is insufficient for the relationship we seek, which requires re-negotiated norms of recognition to acknowledge the continuity of distinct Indigenous nations as equal partners, and a third order of government with their own legal orders. First Nations seek terms of association that are more just, recognize their traditional territories and jurisdiction, and ensure their fair share of the benefits from their traditional territories and membership in the federation. A novel conceptual framework enables a comparative analysis of Western and First Nations’ conceptions of legitimacy, demonstrating important cultural differences in the way we understand legitimacy of governments and legal systems. These differences create difficulties in recognizing the legitimacy of the “other”, and undermine our own legitimacy in the eyes of the other. Legitimacy is important because it leads to compliance with the law, and deference to the rule of law, contributing to stability of political institutions and regimes. Legitimacy influences the extent to which a government is considered worthy to be recognized by others, and the willingness of others to work collaboratively on shared initiatives. Legitimacy is important to Canada and First Nations: it is what we require in order to achieve a constructive working relationship. Absence of legitimacy creates obstacles to effective negotiation of new norms of recognition and terms of association which are essential to achievement of a more fair and just, post-colonial Canada. Recommendations include measures to improve legitimacy, and identify new terms of association consistent with inclusion of First Nations as equal partners in the Canadian federation.