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Why ‘inherent’ aboriginal self-government is unconstitutional

VANCOUVER: The Canadian Constitution Foundation (CCF) today released a position paper which challenges the validity of the federal government’s policy of recognizing “inherent” aboriginal self-government.

The position paper, Is “Inherent Aboriginal Self-Government” constitutional?, is posted Here:

The legal position paper argues that 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 use municipal-style government to run their own affairs, exercise their aboriginal rights, and use aboriginal title lands.

“We are for aboriginal self-government, which can be achieved within Canada’s Constitution,” stated Jeffrey Rustand, author of the paper and in-house counsel with the Canadian Constitution Foundation.

“Aboriginal communities should govern their own affairs, and do so with a degree of autonomy comparable to municipal governments.  That’s a lot more than what most Indian bands have right now under the Indian Act,” continued Rustand.

The CCF’s legal position paper explains that 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. The only “inherent” government power in Canada is that which flows from Canadian sovereignty, referred to in law as Crown sovereignty. The federal and provincial orders of government are the only sovereign governments under the Constitution.

Since 1995, the federal government’s policy of recognizing “inherent” aboriginal self-government 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.

This recognition of a “third order” of constitutionalized aboriginal government 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 spells 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 and Caledonia, and is currently taking place on Mohawk reserves along the border.


Canadian Constitution Foundation

1830 – 52 Street SE, Suite 240

Calgary, AB, T2B 1N1

Phone 403-313-1318

Fax 403-313-1380

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