Wandering without a torch: federalism as a guiding light.

Author:Mancini, Mark

"If the national mental illness of the United States is megalomania, that of Canada is paranoid schizophrenia."--Margaret Atwood (1)


It is uncontroversial to state that the constitutional entrenchment of an inherent right of Aboriginal self-government has vexed jurists, legislators, and Aboriginal peoples for generations over. The historic failure of the Charlottetown Accord is evidence of this vexation. The Charlottetown Accord would have entrenched a third order of Aboriginal self-government (similar to the provincial order of government set out in s.92 of the Constitution Act, 1867) and set out its relationship to the catalogue of federal and provincial powers in the Constitution Act, 1867." This third order of government would have been inherent: it would arise because of an Aboriginal group's distinctive history and would not be dependent on Crown sovereignty. Of course, that accord failed by referendum, leaving the Constitution devoid of any recognition of a third order of government in the Canadian constitutional framework. The aftermath of the Charlottetown Accord and the subsequent failure to explicitly entrench an inherent right of self-government for Aboriginal peoples can be chalked up to at least two historical problems: the common law method and the difficulty of constitutional amendment. Both of these historical problems contribute today to the wandering of Aboriginal peoples without a torch in the annals of constitutional law. Thus, wrapping our heads around these issues is vitally important; particularly as we enter an era of reconciliation in Canada, following the election of a government that promises to do more to build a nation-to-nation relationship.

The first historical problem is the common law system--the case law method and its interaction with the complex amending formula contained in the Canadian Constitution. Justice Antonin Scalia put the essence of the common law method succinctly:

This is the image of the law-the common law-to which an aspiring [...] lawyer is first exposed, even if he has not read Holmes over the previous summer as he was supposed to. He learns the law, not by reading statutes that promulgate it or treatises that summarize it, but rather by studying the judicial opinions that invented it. This is the famous case-law method (3) The natural corollary of the case law method ensures that lawyers litigate; as such, the fundamental issues of our time (including the question of inherent Aboriginal self-government) are punted to the courts. The common law method of adjudicating rights has also been supported by the advent of the Charter of Rights and Freedoms (the Charter). (4) On this issue, the courts have responded by declining to answer whether a right to Aboriginal self-government is an "existing" Aboriginal right contained in s. 35(1) of the Constitution Act, 1982, (5) With the Charter, we are left with both a political and legal void on the issue. (6)

The second historical problem is the notoriously difficult amendment process contained in the Constitution Act, 1982. For ordinary amendments to the Constitution, seven of the provinces representing 50% of the population must agree. (7) For some amendments, unanimous provincial consent is required. (8) The difficulty in amending the Constitution continues to lead to real political consequences; now, constitutional amendments are covered with the cloak of impossibility. As such, a generation of Aboriginal sympathizers and advocates in the common law tradition have forced Aboriginal issues to the courts.

These two historical forces have led us to the current page of Canada's constitutional story. Inherent (pre-existing and not granted by the Constitution) (9) Aboriginal self-government does not truly exist in Canada. In other words, "at the time of Confederation there was no independent recognition of the status of the jurisdiction of Aboriginal governments." (10) Instead, the Canadian government and Aboriginal groups, because of the difficulty of establishing a constitutional mandate, have opted for delegated forms of authority operating under Crown authority. (11) This is not inherent government in the sense that the legitimacy of Aboriginal self-government derives from the historic occupation of lands by Aboriginal peoples; instead, legitimacy comes from a transfer of Crown sovereignty. (12) The Constitution, in other words, does not recognize the different basis of legitimacy for Aboriginal rights. (13) This is not a complete vindication of Aboriginal rights, nor has it led to any clarity in the relationship between the Canadian Constitution and the rights emanating from self-government. Indeed, the only substantial statement on Aboriginal self-government coming from the government in recent memory was the 1995 Self-Government Statement. But this does not carry the day--it is not a matter of constitutional law. (14) Thus, we are at a crossroads: the Supreme Court of Canada has not directly tackled the implications for federalism and the division of powers if Aboriginal self-government does, indeed, exist. (15)

Not all is lost. The fact that Canadian federalism, in constitutional letter, does not recognize an inherent right to Aboriginal self-government is not an inexorable conclusion. Indeed, starting from first principles, the political system of federalism is conceptually broader than its codification into the terms of the Constitution Act, 1867. The Supreme Court of Canada recognized as much in the Quebec Secession Reference, listing federalism as one of the unwritten constitutional principles of Canada. (16)

All of this said, this paper will argue that the issue of Aboriginal self-government should be revisited from the perspective of federalism. To that end, I will focus on the benefits which might accrue from the recognition, once and for all, of an inherent right to self-government for Aboriginal peoples in the Canadian Constitution. This means, in turn, recognizing that the legitimacy of Aboriginal self-government does not derive from Crown sovereignty, nor is it recognized as a limited scope, Van der Peet Aboriginal right. (17) Rather, it is a problem of jurisdiction that can be understood through the doctrines of federalism. On this reading, we have been barking up the wrong tree to vindicate Aboriginal rights. Relying on the Charter for resolution is not ideal.

In order to make this contention, this paper will proceed in two parts. In Part I, I will describe the salient features of political federalism to explain why federalism can encompass a truly inherent right to Aboriginal self-government. Political federalism, in both theory and practice, has proven capable of flexibility. Various doctrines of federalism have led to more flexibility in the Canadian structure, such as the aspect doctrine and the pith and substance doctrine. There is no reason to believe that this flexibility could not be extended to Aboriginal peoples if they are recognized as a third order of government. Beyond flexibility, the text of the Constitution Act, 1867 and its subsequent interpretation by the Judicial Committee of the Privy Council has led to a generous interpretation of rights for the provincial order of government. That same generous interpretation could be applied to inherent Aboriginal self-government as a third order of government in Canada.

In Part II, I will turn to the next logical question: even though political federalism can accommodate an inherent right to Aboriginal self-government, why should it? This paper will respond to this contention in two ways. First, I will argue that federalism will provide clarity and consistency to the relationship between Aboriginal peoples and the Government of Canada, while allowing Aboriginal peoples the latitude to grow and develop without regard to the tumult of Ottawa's occupants. This will only be possible via the process of constitutional amendment, as envisioned by the Charlottetown Accord. (18) Second, delegated authority does not provide for the scope of independence that has been historically sought by Aboriginal peoples in Canada. At least part of the material difficulties that are faced by Aboriginal peoples in the 21st century can be chalked up to the legacy of colonialism; the inability to truly control their futures as self-governing peoples. (19) In my estimation, inherent self-government will go some way to creating the conditions for the improvement of these material conditions.

In terms of methodology, this paper will rely heavily on Phillip Bobbitt's Constitutional Fate, which proposes five types of constitutional argumentation. (20) I will implicitly focus on two of these forms of argument: structural argumentation (arguing from the values and framework of the existing constitutional federalism to support constitutional amendment) and prudential argumentation (ethical and normative claims about the sort of government sought by Aboriginal peoples). Both of these types of argument will form the backdrop of this paper.

Additionally, this paper will endeavour to answer a broader question: why does federalism matter anymore? With respect to Aboriginal rights in Canada, students of law in the last twenty-five years have been inculcated in the Charter of Rights and Freedoms. Many of the discussions with respect to the distribution of powers, the common law, and the structure of Canadian federalism have been forgotten because of an unfortunate case of "Charteritis"--a tendency to forget the foundational principles of law that arose before the Charter. (21) But we are entering a new era in Ottawa: one in which the government has recommitted to a productive relationship with Aboriginal peoples and Premiers in Canada. This paper will posit that the concepts of federalism and the distribution of powers are tools of reconciliation if we are to decide where Aboriginal peoples will fit in the Canadian federation. Such a shift...

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