Is Indigenous governance constitutional law?

Kitwanga, ca. 1899, Canadian Museum of History

Before the CoVID19 pandemic seized control of our daily diet of news, Canada was wrestling with blockades of railroads, pipeline projects and ports. These blockades were fueled by a debate over Indigenous sovereignty and questions abounded about who needed to be consulted – the traditional chiefs or the elected band chiefs. With CoVID19, these issues seem to have vanished from our consciousness. But the underlying issue has not gone away.

Indeed, during the pandemic, Indigenous sovereignty and governance is being exercised in often very direct ways. For instance, due to the threat from the coronavirus, the governments of the Haida, the Heiltsuk Nation, and Ahousaht First Nation have issued orders that forbid travel from others into their territories. Interestingly, most people are respecting these orders, including the Province of British Columbia.

This flexing of Indigenous jurisdictional muscle, whether it be in relation to mega-projects being built over their lands or in respect of orders issued against non-member travel during the pandemic, begs constitutional questions. But how do Indigenous jurisdiction and Indigenous governance fit into the Canadian constitutional puzzle?

Canadian constitutional law has many components. These components include:

  • a division of powers between the federal and provincial orders of government dating from Constitution Act, 1867 (previously the British North America Act) ;
  • the “unwritten” constitution inherited from the United Kingdom that regulates Canada’s system of parliamentary democracy;
  • a Charter of Rights and Freedoms enacted as part of the Constitution Act, 1982 and which placed constitutional limits to the bounds of State power when intruding into areas of certain areas of human autonomy and dignity; and
  • a constitutional amending formula, also adopted in 1982.

Missing from this list is the matter of Indigenous governance and jurisdiction. Under s. 91(24) of the Constitution Act, 1867, “Indians and Lands reserved for the Indians” was one of the matters exclusively reserved for the federal government and Parliament. But that did not really deal with the matter of Indigenous sovereignty and thus, Indigenous governance and jurisdiction. For that, we need to turn to section 35 of the Constitution Act, 1982. The first paragraph of section 35 simply states:

“The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

Notwithstanding its simplicity and brevity, section 35(1) has become one of the most important constitutional provisions for Indigenous rights. It has been used in relation to hunting and fishing rights, in relation to rights to take and exploit timber, and importantly to protect claims of aboriginal ownership to lands. But now, it may well be a key constitutional component for the protection and recognition of Indigenous governance and Indigenous law-making jurisdiction.

Indigenous nations have always asserted that, at no time, did they cede their right to govern themselves and their lands. And indeed, a number of judicial decisions seem to have recognized that this right to govern themselves existed and that it existed long before any constitutional amendment in 1982. But the federation of Canada has acted for over a century and a half as if the only constitutional actors that counted were the federal parliament and government and the provincial and territorial legislatures and governments.

If an aboriginal right extends to an Indigenous people to hold aboriginal title to their ancestral lands and that aboriginal right is protected by section 35, then it is logical that their ancestral right to administer those lands and themselves as an aboriginal people is also protected by section 35. Indigenous nations are now using this logic and turning to section 35 to give constitutional teeth to a right that they have long exercised and maintained: a right to govern themselves and their lands.

But the constitutional inquiry into Indigenous governance does not stop there. The existence of an aboriginal right of governance, constitutionally protected and recognized by section 35, begs the next question, namely, how to “fit” Indigenous jurisdiction and governance into the Canada constitutional framework. In essence, section 35 recognized and affirmed a third order of government within or juxtaposed to the Canadian federation. Not only are there provincial and federal governments and legislatures but there are also indigenous governments and law-making institutions and, it is submitted that these have been implicitly “recognized and affirmed” by section 35 of the Constitution Act, 1982.

Thus, Indigenous governance truly is a branch of constitutional law. How Indigenous peoples “constitute” themselves, how they govern themselves, their institutions and their lands and those within their lands is a matter of constitutional law. How Indigenous governments, institutions and laws interact or fit within or adjacent to federal and provincial governments, legislatures and laws may be one of the most significant, unsettled constitutional law issues facing Canada today.

While section 35 does not provide explicit answers to questions as to how this all fits together, it does provide the express constitutional link from the Canadian federation and its Constitution to the self-governing Indigenous nations within Canada. And it is incumbent on all actors within Canada to be conscious of these questions and to seek constructive responses within the concept of reconciliation.

For more information about these important constitutional issues, please contact Arthur Grant at agrant@gkn.ca.

I remain

Constitutionally yours,

Arthur Grant

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