Recognizing aboriginal rights without violating the Constitution

NationalPost.com – Opinion – Recognizing aboriginal rights without violating the Constitution
Wednesday, December 30, 2009.   John Carpay and Jeffrey Rustand,  National Post

The lawsuit of David Brown and Dana Chatwell against Ontario and its provincial police has highlighted in dramatic fashion how quickly violence can follow the withdrawal of law enforcement. Similar problems exist on several Mohawk reserves in Ontario and Quebec, where an absence of strong policing along portions of the Canada-U. S. border has resulted in the expansion of smuggling, violence and organized crime using aboriginal reserves as safe havens.

In spite of these developments, Canada’s federal government continues to recognize an “inherent right of aboriginal self-government.” While undoubtedly motivated by good intentions, this federal policy, in place since 1995, is not compatible with Canada’s Constitution.

For more than a century, the Supreme Court of Canada has repeatedly and consistently declared that the Constitution distributes all legislative power between the federal and provincial governments. Aside from these two levels of government, there are no sovereign powers outside of the Constitution. The only “inherent” government power in Canada is that which flows from Canadian sovereignty, referred to in law as Crown sovereignty.

No reasonable person would disagree with the goal of seeing aboriginal people manage their own affairs without being controlled by Ottawa’s politicians and bureaucrats. Fortunately, this can be achieved within Canada’s Constitution.

A constitutionally valid form of aboriginal self-government may be created through federal legislation that delegates government powers and authority to an aboriginal community. This has been done successfully with the Sechelt Indian Band Self-Government Act, the Yukon First Nation Self-Government Act and the Cree-Naskapi (of Quebec) Act. The delegation of federal and provincial powers enables aboriginals to run their own affairs, exercise their aboriginal rights and use aboriginal title lands.

Delegating provincial and federal powers is fundamentally different from recognizing “inherent” aboriginal self-government power that is not derived from Crown sovereignty. “Inherent” means self-originating and not dependent on Canada’s Constitution, or on either of the two orders of government created by it.

The central characteristic of government is the capacity to exercise coercive power. This means the power to interfere with the physical integrity and freedom of persons, to seize or determine ownership of their property and assets, to create rights and liabilities, to determine entitlements to benefits and advantages, to impose burdens and to determine who can vote and be part of government itself. Recognizing an entity as “government” has very serious implications.

In 1992, prime minister Brian Mulroney and the premiers attempted to insert an “inherent aboriginal right of self-government” into the Constitution through the Charlottetown Accord. They correctly understood that a new order of aboriginal government could be achieved only by amending the Constitution. But after Canadians rejected this proposal in a national referendum, the federal government nevertheless proceeded to recognize “inherent aboriginal self-government” as if it already existed in the Constitution.

Since 1995, the federal government’s policy has resulted in the Nisga’a Final Agreement, the Tsawwassen First Nation Final Agreement and the Westbank First Nation Self-Government Agreement, all of which purport to create a “third order” of government that is outside of the Constitution, and not accountable to Canada’s federal or provincial orders of government.

There are numerous practical problems which result from a policy that doesn’t comply with the Constitution.

The recognition of a “third order” of constitutionalized aboriginal government on par with the federal and provincial governments creates an uncertain legal environment for business, and for all citizens. Even if clear rules could be enacted for reconciling conflicting laws and authorities, the unwieldy complexity would spell the end of functional government in Canada. The creation and imposition of new taxes and royalties on top of existing federal, provincial and municipal taxes will undoubtedly deter investment. Moreover, the federal and provincial capacity to enforce the law is necessarily reduced.

A “third order” of government hinders the federal and provincial governments’ ability to amend legislation for the purpose of accommodating changing circumstances and solving new problems which may arise. The legislation creating the “third order” of government found in the Nisga’a and Tsawwassen Agreements cannot be amended by Ottawa or Victoria like other legislation.

Most significantly, the recognition of “inherent” aboriginal government over Canadian territory constitutes withdrawal of Canadian government authority and law from that territory, an act known in constitutional law — and strictly prohibited by it – as abdication. The longer this federal policy remains in place, the more frequently Canadians will experience the violence and lawlessness which took place at Oka, Que., and Caledonia, Ont., and is currently taking place on Mohawk reserves along the border.

- Lawyers John Carpay and Jeffrey Rustand are, respectively, executive director and inhouse counsel with the Canadian Constitution Foundation.       

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