3.2.1 Indigenous Federal/Provincial/Territorial Jurisdiction and Self-Governance

Indigenous people in Canada have different types of government. For example, First Nations can have a range of governmental powers over reserve lands under the federal Indian Act. Other Indigenous governments, such as self-governments, exercise these powers as a result of agreements they have negotiated with the federal and provincial or territorial governments.

Federal Government Roles
As noted in section 3.1.1 of this module, Crown-Indigenous Relations and Northern Affairs and Indigenous Services Canada are two of 34 federal departments responsible for meeting the Government of Canada’s obligations and commitments to First Nations, Inuit and Métis. Most of the programs and spending for Indigenous communities are delivered through partnerships with Indigenous communities and federal-provincial or federal-territorial agreements. For example, Health Canada provides bands with health care funding and programs, and Canada Mortgage and Housing Corporation provides housing funding and programs.1

Federal/Provincial/Territorial Government Jurisdictions
Provincial and territorial governments work in partnership with the federal government to provide programs and services to Indigenous people in Canada.  For the provinces this is governed by Section 88 of the Indian Act. Provincial laws, services and programs that do not specifically single out Indigenous people apply to all people residing in that province; however, the application of provincial laws to Indigenous people must not infringe on: areas that are exclusively federal jurisdiction; rights to take game and or fish for food; and treaty rights protected under Section 35 of the Constitution Act, 1982.2

Territorial governments are under federal control. Federal law allows the territories to form elected councils, which are given powers similar to provincial legislatures, including authority over public education, health and social services, and the administration of justice and municipal government. Territorial governments receive transfer payments from the federal government to deliver services and program to territorial residents, including Indigenous people.3

Unfortunately, determining whether something is under federal or provincial/territorial jurisdiction is not always clear. In the case of health, for example, the federal government provides health services through the First Nations and Inuit Health Branch (FNIHB) for status (registered) Indians living on-reserve and to Inuit living in their traditional territories. FNIHB also provides non-insured health benefits (NIHB) such as prescription drugs, dental and vision coverage to all status/registered Indians and Inuit, regardless of where they live; however, non-insured health benefits are not offered to Métis.4 For more information on the services provided by FNIHB click here.

Physician and hospital care is provided by provincial and territorial governments.4 Thus, for First Nations peoples living on-reserve, health care is predominately the federal government’s responsibility. Other Indigenous groups, with very few exceptions, fall under the purview of the provincial or territorial governments.5 For more information on health legislation for Indigenous people in Canada, click here.

Indigenous Self-Government
A shift toward Indigenous self-government is becoming a priority for Indigenous people and federal/provincial/territorial governments. In 2011, 80 per cent of federal funding for programs on First Nations reserves was administered by First Nations bands or other Indigenous institutions.6

1Indian and Northern Affairs Canada. (1897) Indian Act website accessed March 3, 2017. https://www.aadnc-aandc.gc.ca/DAM/DAM-INTER-HQ/STAGING/texte-text/1876c18_1100100010253_eng.pdf
2Parliament of Canada. (2001) Federal-provincial jurisdiction and Aboriginal Peoples.
3The Canadian Encyclopedia. Territorial Government in Canada. (2016).
4Health Canada (2008). First Nations and Inuit Health Branch. Ottawa, ON: Health Canada. http://www.hc-sc.gc.ca/ahc-asc/branchdirgen/fnihb-dgspni/fact-fiche-eng.php-accessed November 14, 2018.
5National Collaborating Centres for Aboriginal Health (NCCAH). (2011). The Aboriginal health legislation and policy framework in Canada. http://www.nccah-ccnsa.ca/docs/Health%20Legislation%20and%20Policy_English.pdf – accessed November 14, 2018.
6The Canadian Encyclopedia. (2015). Indigenous People: Government programs.
http://www.thecanadianencyclopedia.ca/en/article/government-programs-concerning-aboriginal-people/ – accessed November 14, 2018.