Contested federalism and the aboriginal challenge

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Yet an inherent right of aboriginal government would mean exercise of sovereign powers that cannot be withdrawn, and only with difficulty reduced (if possible at all), since they would not be delegated powers.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.”

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