Historically, Canada has been occupied by many different states, both European nations like Britain and France, and Aboriginal nations like the Haida, Iroquois, and Huron. While the descendants of these early inhabitants still call Canada home, only one nation continues to enjoy the absolute power that it enjoyed historically. The courts of this nation have called for the reconciliation of British (now Canadian) sovereignty with the Aboriginal sovereignty that has been lost. The Supreme Court of Canada (SCC) first recognized the existence of Aboriginal title and then Aboriginal rights, as well as imposed obligations on the Crown to act honourably and to uphold their fiduciary obligations, in an effort to promote reconciliation. While the scope of Aboriginal rights and Crown obligations has remained in flux, there has been one constant in the SCC's Aboriginal law jurisprudence: the recognition that Aboriginal nations were the sovereign powers in Canada when the Europeans first arrived but that the British (now Canadian) Crown is the sole sovereign power in Canada today. However, important questions have been left unanswered. For example, what is sovereignty and exactly how did the Aboriginal nations come to lose it ? This paper is an attempt to remedy this deficiency.
First, this paper will explore the concept of sovereignty in an attempt to explain how it should be defined and why it is significant. Second, this paper will examine the common law to find the recognized methods by which a power can come to gain sovereignty over a territory. Third, this paper will undertake an examination of Canadian Aboriginal law jurisprudence to find out which theory is used to explain the acquisition of Crown sovereignty. In the final sections, having rejected the theory that emerges from an examination of the jurisprudence, this paper will propose a new theory be used and explore the impact it could have on the reconciliation of Crown and Aboriginal sovereignty. This paper will come to the conclusion that the "assertion of Crown sovereignty" theory currently used by the SCC is detached from reality, inherently illogical, and premised on the notion of European superiority. Therefore, it should be rejected and replaced with the encroachment theory, a variation of the conquest theory.
At the outset it is important to note that this paper is not an endorsement of a modern "might is right" theory of sovereignty or any similar theory. Indeed, such views were emphatically rejected by the SCC in Reference re Secession of Quebec. (1) However, like the SCC, it does recognize that the Crown ultimately gained factual control of the territory it claimed--what the Court calls "de facto" sovereignty. Whether acquired by the sword or by the pen, the Crown acquired sovereignty without the benefit of the Charter (2) or modern international documents recognizing human rights. Thus, while I describe Crown sovereignty as being "de facto," I am not tempted to say it is "de jure." (3) A new and radical approach may very well be needed to recognize this reality. Nonetheless, this paper attempts to address deficiencies within the framework currently used in Canada.
THE CONCEPT OF SOVEREIGNTY
THE NEED FOR A DEFINITION
For all the resources available for research in this area, it is difficult to find one that provides a definition of sovereignty. There is a surprising amount of resistance on the part of both authors and judges to attempt to provide a definite and comprehensive definition. There is little that approaches a definition of sovereignty in the SCC's major Aboriginal law decisions starting from Calder v Attorney-General of British Columbia in 1973. (4) Papers from well-known authors including Patrick Macklem (5) and Michael Asch (6) that address the differing explanations of Crown sovereignty also fail to define the term. (7)
Their resistance, though not necessarily justifiable, is understandable given the expansive meaning of sovereignty across different disciplines and the fact that it is already a practical reality. One author wrote that "[s]elf-evidently... no conference and certainly no book could encompass the entirety of the contemporary debates on sovereignty." (8) In a similar vein, Ersun N. Kurtulus had this to say in his book about state sovereignty: "the academic dispute--actual or potential--about sovereignty has taken place not only within disciplines, but also across disciplinary lines with reference to the level of analysis, the descriptive or normative ambitions involved, and the answers given to standard dichotomous questions about its basic traits." (9) Additionally, as has been acknowledged by the SCC, practically speaking Canada currently is sovereign over the land that is called Canada. (10) Thus, finding an exact definition may be generally viewed as distracting from other, more important aspects of the sovereignty debate.
Neil Walker describes sovereignty as being "as fundamental as it is contentious, as difficult to give up as it is to pin down." (11) In the Canadian Aboriginal law context, the "assertion of [Crown] sovereignty" has been interpreted as having a significant and arguably devastating impact on Aboriginal rights in this country. (12) The assertion of Crown sovereignty inevitably led to the loss of Aboriginal sovereignty and also gave the Crown the right to extinguish both the title to the lands that Aboriginal societies had occupied for centuries and Aboriginal rights, including the right to even basic governmental structures. (13) Further, in order to establish a claim to Aboriginal title, the Aboriginal group asserting the claim "must establish that it occupied the lands in question at the time at which the Crown asserted sovereignty over the land subject to the title." (14) Sovereignty is not only being used in the theoretical sense, but also it is imputed into practical tests based on historical facts that can provide recognition of real rights today. Defining exactly what the Crown is asserting and how it does so is thus crucial.
THE ORIGINS OF SOVEREIGNTY
The concept of "sovereignty" emerged in the late Middle Ages and is derived from the medieval figure known as "the sovereign". A sovereign is a ruler that holds "absolute authority over his subjects and who is under no legal obligation to any higher power." (15) The sovereign was viewed as having "two bodies": the mortal body of the individual and a supernatural body encompassing this absolute authority. (16) Sovereign power was not extinguished upon the death of the sovereign, but continued in political structures and offices. (17) In early modern times, kings alone would hold this absolute authority, but even later practitioners still included single individuals or small groups such as dictators, juntas, theocracies, and political parties. (18) The idea of democracy would take hold in many nations, and citizens began to demand power be further concentrated not in the sovereign or their selected officials but rather in bodies made up of representatives of the people. (19) At this point sovereignty came to be understood in its modern sense as the "existence of a singular ruling power, however institutionalized and internally differentiated, in which inheres final and absolute authority over the political community as a whole." (20) Therefore, authority need not be concentrated in a single sovereign or among a few officials for there to be an exercise of sovereign power.
CHOOSING AMONG COMPETING THEORIES
As mentioned above, there are numerous theories and definitions of sovereignty across different disciplines. As an initial step, then, this paper must identify the theory of sovereignty that is most appropriate for the Aboriginal law field. Kurtulus's book about sovereignty is an important source in this regard, as it helpfully sets out the main differences between the competing theories of sovereignty. (21)
First, there is a distinction between normative and descriptive theories. Stated briefly, "descriptive explanations" depict how things are in social reality while normative statements are "about how things ought to be." (22) That is, how absolute authority is actually exercised versus how it ought to be exercised. Under the common law, how and when sovereignty arose is relevant when determining the rights of native inhabitants. Canadian Aboriginal jurisprudence adopted this approach and imported the concept of sovereignty into legal tests for Aboriginal title and Aboriginal rights (e.g., "assertions of sovereignty" (23) "intention to exercise... sovereignty" (24) ). Thus, "sovereignty" will be used in its descriptive sense within the confines of this paper.
Yet this does not mean that Aboriginal law is unconcerned about how sovereignty ought to be exercised. Aboriginal law can be said to have been structured to achieve a particular goal: to allow reconciliation between the Crown and Aboriginal peoples. (25) For example, the common law dictates that "the Crown must act honourably.... to achieve 'the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown'". (26) Courts are often tasked with finding how the Crown ought to have exercised its sovereignty. However, when considering when and how Crown sovereignty arose, scholars must view sovereignty descriptively.
Second, Kurtulus notes that there is often a dichotomous question about whether state sovereignty refers to a judicial attribute or rather a factual condition. The first line of thinking, often presented by lawyers, argues the term only refers to a judicial status. (27) Sovereignty is often seen as merely denoting a legal personality, that of statehood. (28) It is sometimes also referred to as "constitutional independence" because the states constitutional structure is not subsumed into an even larger constitutional arrangement. (29) While this view presents only a superficial understanding...
TOWARDS RECONCILIATION: A PROPOSAL FOR A NEW THEORY OF CROWN SOVEREIGNTY.
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