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

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.