The Dilemma of Indigenous Self-Government in Canada: Indigenous Rights and Canadian Federalism

Date01 December 2018
AuthorRichard Stacey
Publication Date01 December 2018
DOI10.1177/0067205X1804600411
SubjectArticle
/tmp/tmp-17Bkf2bi4k042K/input THE DILEMMA OF INDIGENOUS SELF-GOVERNMENT IN
CANADA: INDIGENOUS RIGHTS AND CANADIAN
FEDERALISM
Richard Stacey*
We need to get to a place where Indigenous peoples in Canada are in control of their own
destinies and making their own decisions about their futures … This framework [for the
recognition and implementation of Indigenous rights] gives us the opportunity to build
new mechanisms to recognize Indigenous governments and ensure the rigorous, full, and
meaningful implementation of treaties and other agreements. … we have a chance to
develop new tools to support the rebuilding of Indigenous communities, nations, and
governments, and advance self-determination, including the inherent right of self-
government.1
ABSTRACT
Canada’s constitutional distribution of authority between the provinces and federal
government leaves no room for Indigenous self-government, but there are increasingly
vocal calls for change. Whether Indigenous peoples are acknowledged as one of
Canada’s founding nations alongside its English and French settlers, or are recognized
as distinctive peoples within its multicultural society, these calls affirm Indigenous
peoples as sovereign nations deserving of at least some of the powers that the provinces
have. The Constitution Act 1982 provides a different mechanism of legal protection for
Indigenous peoples, recognizing and affirming already existing Indigenous rights.
Canada’s Indigenous rights jurisprudence, however, pulls against the sovereignty that
underlies federalism. The courts have understood Indigenous rights such that accessing
their protections denies to Indigenous peoples the autonomy to define themselves as
member nations of Canada’s multicultural society. As a normative point, this paper
argues that we should embrace constitutional Indigenous rights as a vehicle for
Indigenous sovereignty, because it brings federalism and Indigenous rights together as
a theoretically coherent foundation for Indigenous self-government in Canada. As a
descriptive point, the paper argues that the jurisprudence itself already contains the
resources to support a sovereignty-affirming reading of the Constitution’s Indigenous
rights provisions.

*
Assistant Professor, University of Toronto Faculty of Law. I am grateful to Douglas
Sanderson, Wade Wright, the editors of this special issue and the Federal Law Review’s two
anonymous reviewers for comments, suggestions and feedback on previous versions of this
paper.
1
Canada, House of Commons Debates, 42nd Parl, 1st Sess, No 264 (14 Feb 2018) at 1550 (Justin
Trudeau, Prime Minister).

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Federal Law Review
Volume 46
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I INTRODUCTION
The extent to which Canadian law recognises a realm of self-government for Indigenous
peoples is limited. Some statutes codify agreements between Indigenous nations and the
federal and provincial governments, establishing Indigenous governing authorities with
clearly defined powers and responsibilities. 2 The Indian Act for its part allocates
administrative functions to the elected councils of on-reserve Indigenous bands.3 These
limited arenas of Indigenous political autonomy depend, however, on agreement with
and action by the federal or provincial Crown. Canadian law does not clearly recognise
any inherent rights or powers of Indigenous self-government. Indeed, in distributing
legislative authority between governments in Canada’s federal system, ss 91 and 92 of
the Constitution Act 1867 appear to leave no room for First Nations, Métis or Inuit
authority,4 going as far as to reserve to the federal government the power to make laws
‘in relation to … Indians, and lands reserved for the Indians’ (s 91(24)). This distribution
of legislative powers leaves Canada’s First Peoples out in its considerable cold, excluded
from the architecture of government.
Demands for greater Indigenous political autonomy and self-government have not
gone unheard, however. Statements like those in this paper’s epigraph represent a
welcome commitment to Indigenous self-government, but short of a constitutional
amendment it is not obvious where Indigenous self-government could be
constitutionally rooted. Whether Indigenous forms of self-government could be
recognised as a third level of government alongside federal and provincial governments
without constitutional amendment is a long-standing question which has prompted
different answers. 5 Even statutory reform or legislative action from a sympathetic
government under s 91(24) is not a simple or straightforward solution.6

2
See, eg, Yukon First Nations Self-Government Act, SC 1994, c 35; Mackenzie Valley Resource
Management Act, SC 1998, c 25; Nisga’a Final Agreement Act, SBC 1999, c 2; Métis Settlements
Act, SA 1990, c M–14.3.
3
Indian Act, RSC 1985, c I-5, ss 81–6.
4
Patrick Macklem, Indigenous Difference and the Constitution of Canada (University of Toronto
Press, 2001) 107.
5
Cf John Borrows, ‘Constitutional Law from a First Nation Perspective: Self-government and
the Royal Proclamation’ (1994) 28 UBC Law Review 1, 5 (arguing that self-government for
Indigenous peoples is already ‘an integrated part of the current fabric of the Canadian
constitution’ and requires no constitutional amendment); Patrick Macklem, ‘Indigenous
Peoples and the Ethos of Legal Pluralism in Canada’ in Patrick Macklem and Douglas
Sanderson (eds), From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of
Aboriginal and Treaty Rights (University of Toronto Press, 2016) 17 (arguing that the ethos of
legal pluralism requires constitutional recognition of Indigenous governments sovereign
within defined spheres of authority, with exclusive and concurrent legislative authority
formally equivalent to federal and provincial legislatures).
6
On options for statutory reform in general, see John Borrows, ‘Legislation and Indigenous
self-determination in Canada and the United States’ in Patrick Macklem and Douglas
Sanderson (eds) From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of
Aboriginal and Treaty Rights (University of Toronto Press, 2016) 475, and Douglas Sanderson,
‘Overlapping Consensus, Legislative Reform and the Indian Act’, in Patrick Macklem and
Douglas Sanderson (eds), From Recognition to Reconciliation: Essays on the Constitutional
Entrenchment of Aboriginal and Treaty Rights (University of Toronto Press, 2016) 320 (arguing
for the reform but not the repeal of the Indian Act). One question that has arisen is whether

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The Dilemma of Indigenous Self-Government in Canada
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Canada’s constitutional landscape contains at least two routes along which
Indigenous self-government might be realised. The first argues that the principles of
Canada’s federal system are already well-suited to recognising the Indigenous political
authority through which Indigenous peoples governed themselves before European
settlers arrived. 7 The second approach has been to press for the recognition and
affirmation of Indigenous rights, including rights to self-government, under s 35(1) of
the Constitution Act 1982.8 This section provides that ‘the existing aboriginal and treaty
rights of the aboriginal peoples of Canada are hereby recognized and affirmed.’
My aim in this paper is not to describe the details of how Canada’s constitutional
architecture could or should accommodate Indigenous self-government, whether as a
matter of federalism or Indigenous constitutional rights, nor to reflect on whether or not
constitutional amendment is required. Rather, my more modest aim is to point out that
the way the Supreme Court of Canada has understood the rights affirmed in s 35 is in
some tension with the principles of federalism on which the first argument for
Indigenous self-government is based.
On one hand, a central theme of Canada’s constitutional origin story is that the
federal system was adopted in order to assure the European settler communities
involved in founding Canada a degree of political autonomy over matters related to
their distinctive language, culture, faith and legal traditions. The political autonomy

implementing the United Nations Declaration on the Rights of Indigenous Peoples, GA Res
61/295, UN GAOR, 61st sess, 107th plen mtg, Supp No 49, UN Doc A/RES/61/295 (13
September 2007) (‘UNDRIP’) in Canada requires the replacement or amendment of
legislation inconsistent with the Declaration, including the Indian Act. Government officials
have remarked that simply repealing this body of law would leave an unacceptable legal
vacuum (Minister of Justice and Attorney-General of Canada, Jody Wilson-Raybould,
(Speech delivered at Niagara Falls, 12 July 2016); Laura Kane, ‘Jody Wilson-Raybould Lays
Out Vision for UN Indigenous Rights Declaration,’ CBC News, 7 September 2016. In May
2018, however, the House of Commons passed a private members bill that would require
harmony between Canadian law and the provisions of UNDRIP (Bill C–262: An Act to Ensure
that the Laws of Canada are in harmony with the United Nations Declaration on the Rights of
Indigenous Peoples, 1st Sess, 42nd Parl, 2018). As of July 2018, the Bill is before the Senate.
7
A particular version of this argument advocates for a...

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