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Contested federalism and the aboriginal challenge

|Written By Jeffrey K. Rustand

In our times we are unfortunately in the thick of a fiercely contested struggle between the present constitutional order that has given Canada democratic government under the rule of law within a workable federalism, on the one hand, and an activist adventurism that would fragment Canada internally into hundreds of sovereign jurisdictions, on the other.

The federal government recognizes aboriginal communities as having an existing “inherent right of aboriginal self-government,” as an aboriginal right within the meaning of s. 35 of the Constitution Act, 1982. In fact, this policy is the recognition of an inherent power of government that can be exercised over any Canadian, aboriginal or not.

This is interesting. Our highest courts have consistently held that the Constitution establishes two, and only two, orders of government that exercise sovereign powers: the federal and the provincial.

Other governments are delegates of Parliament or the provincial legislature that that made them, and exercise only delegated powers.

Delegates are commonplace in Canada; they include municipalities, regional bodies, administrative bodies and tribunals, the territorial governments, and many aboriginal governments; through such laws as the Yukon First Nations Self-Government Act, Sechelt Indian Band Self-Government Act, and of course the Indian Act. This is a flexible and effective way to give aboriginal communities autonomous self-government.

Yet an inherent right of aboriginal government would mean exercise of sovereign powers that cannot be withdrawn, and only with difficulty reduced (if possible at all), since they would not be delegated powers. Then there is the question of which law prevails in the case of conflict. This is a different ball game altogether.

The judicial contest now underway is an attempt to radically restructure our present constitutional order and replace it with a three-tiered federal structure that includes hundreds of aboriginal principalities that are on par with the federal and provincial governments.

The federal government is attempting to implement this new structure through treaties, litigation, and policy, rather than through a constitutional amendment.

But there is no third order of government. Such a notion has no basis in law, or in common sense.

The legal theory supporting an inherent aboriginal right of self-government, in a nutshell, goes as follows:

Aboriginal nations were sovereign nations with government powers prior to the assertion of Crown sovereignty. These sovereign powers survived the assertion of Crown sovereignty, continued in force in diminished form, and were not extinguished by imperial, colonial, or Canadian legislation. The doctrine of aboriginal rights recognizes these continuing powers as aboriginal rights within the meaning of s. 35. A corollary is that a land claims agreement may include self-government powers as s. 35 rights.

Campbell v. British Columbia adopts this legal theory, but the judgment conflicts with all of Canada’s constitutional jurisprudence. It has been neither appealed nor followed.

This theory treats government power as if it were a right, and then treats it as a s. 35 aboriginal right. This ignores the vital distinction between rights and powers that informs the deepest structures of the Constitution.

A right within the meaning of s. 35 is the same as a right protected by the Charter of Rights and Freedoms: it is a shield that protects individuals and aboriginal communities from the actions of government, that is, from power.

By conflating rights and powers the government purports to recognize something that legally cannot exist: government separate from Canada’s sovereign orders of government.

It also inverts the function of s. 35, so that instead of protecting aboriginal rights against government action, it entrenches a new government order and protects that government from the federal and provincial governments.

Why does this matter?

One bizarre consequence is that it converts s. 35 into a constitutional amending formula that, according to federal policy, has already created a third order of constitutional government — without anyone having to do anything.

That’s quite a trick. It would also be possible through a treaty to create a jurisdiction with almost any combination of federal and provincial powers (subject only to limitations set by the courts). Such a jurisdiction, once made, becomes entrenched through s. 35.

It would be unclear which aboriginal groups would possess which governmental powers, over what territory, over which Canadian citizens, until adjudicated in judicial proceedings or agreed in a treaty; but by operation of law aboriginal groups would possess government power already, as an existing aboriginal right.

As for the political and practical ramifications, consider a Canada divided into hundreds of aboriginal principalities, each enjoying a sovereign status equivalent to the federal and provincial orders of government. Leaving aside the question of uncertainty (what powers, over what territory, over whom), here is what we get:

•    Hundreds of constitutional-order jurisdictions creating a complex legal and political

     environment far beyond rational governance.

•    A complex and burdensome legal environment for business.

•    Multiplication of taxes as aboriginal jurisdictions exercise their power to tax.

•    Limited federal and provincial powers to remedy problems affecting the larger public good, or

     to resolve conflicts that arise from the multiplicity of jurisdictions.

Lastly, there is the democratic question.

The democratic link between government and Canadian citizens is provided in the Constitution by channeling sovereign powers through Parliament and the provincial legislatures, the members of which are elected through the universal franchise.

Inherent aboriginal government breaks this link so many Canadians would be subject to government for which they cannot vote, and which is largely immune from supervision by Parliament and the provincial legislatures. These aboriginal governments will be in both rural and urban areas.

In some cases, the disenfranchised population could greatly outnumber the members of the aboriginal community governing the territory (i.e., the Westbank First Nation in the suburbs of Kelowna, B.C.).

The stakes are higher than most people realize.

Jeffrey K. Rustand is in-house counsel at the Canadian Constitution Foundation and author of the legal position paper “Is 'Inherent Aboriginal Self-Government' Constitutional.”

  • I look forward to the appeal

    Mark Crawford
    I thought that the issue was more or less settled when Trudeau backed away from the White Paper, the Calder decision came down, and section 35 affirmed existing and treaty rights. But if Mr. Rustand wants to challenge self-government provisions on a democratic rights ground, sections 3 and 15 of the Charter are available to the Canadian Constitutional Foundation to mount a challenge. I would be amazed if they succeeded.

    Alternatively, perhaps this is just a political appeal to governments to stop negotiating treaties, a plea for less legal pluralism. Again I would be amazed if it succeeded.
  • Contested Federalism

    J Harris
    Mr. Rustand raises an important issue, especially for those of us living in British Columbia. I for one am concerned that we may already be living in a country where all citizens are not treated equally, and where there is a patchwork of citizens with special rights based on race. I don't pretend that these are not difficult issues, but care must be taken to ensure we do not dimish citizenship in the exercise, when the object is to improve it.
  • lawyer

    Keith A.
    MG Wetzel astute comments hit the nail directly on the head.
  • Lawyer

    Keith A.
    Wow, I haven't heard such ethnocentric sentiments seriously discussed in a legal forum since the racist rantings of former B.C. chief justice the late Allan McEachern in R. v. Delgamuukw, when he colorfully described First Nations people as uncivilized savages with lives that were "nasty, brutish and short."

    The writer states: "But there is no third order of government. Such a notion has no basis in law, or in common sense." There is a wealth of case law that recognized that there is in fact a basis in law. The writer clearly believes that "common sense" by definition must been subscribing to an ethnocentric imperialist view.

    This has to be the worst, the very worst, Canadian Lawyer article I have ever read.
  • Is \"Inerent Self Government Constitutional\"

    MG Wetzel
    Mr. Rustand poses the question: Is inherent self government constitutional ? His question, the subject of academic/political/legal debate, could just as legtimately be entitled "How do we keep our colonization of the First Nations of Canada from being undone?" His answer and rationale can also be summarized and restated as: "Let us return to the our superior 19th century political dogma. After all, the best Indians are the ones who want to be, or whom we can make to be, just like us. Once First Nations are assimilated and enfranchised, which was the objective of the Indian Act and still is the Federal Government's underlying agenda, we can live comfortably in our federal/provincial version of government on the First Nations lands we have colonized."
  • Alarmist \'R us

    Huh? Where is this "judicial contest now underway"? In Chief Mountain? This is old news - the Campbell case was decided 10 years ago this year. Contrary to what you state, the decision was in fact appealed, but that appeal was dropped when Campbell became Premier of BC. It has not been followed elsewhere because the issue has not been argued elsewhere (the Cambell decision has not been overrruled or distinguished elsewhere either).

    More to the point, what have these 10 years disclosed? Are we in a state of constitutional anarchy or confusion in Nisga'a territory as a result of this policy?

    Your concerns about the effects of hundreds of self-government agreements across Canada are - with the exception of the ability to theoretically effect unilateral changes - equally applicable to delegated models of self-government. Indeed, at a certain level Canada is already divided into hundreds of Aboriginal principalities where their own laws can govern with respect to certain matters: they are called reserves.

    As for your point that it would be "unclear which aboriginal groups would possess which governmental powers" - that is the point of the self-government agreements. Without them, First Nations will attempt to establish self-government rights on an ad hoc basis through the courts.