Opportunity for renewing treaty federalism, recognizing Canada’s legal pluralism, part two

By Nick Leeson

Law360 Canada (July 27, 2022, 1:10 PM EDT) --
Nick Leeson
Courts have ruled that Indian Act governments are subject to the Charter; however, they operate under delegated authority. The exercise of inherent power is distinct. Neither the Crown nor any of its laws — including the Constitution and Charter — are the source of inherent rights; they merely recognize them. (On the application of the Charter to Indian Act, RSC 1985, c I-5 governments, see Taypotat v. Taypotat  013 FCA 192 at para. 39.)

Indigenous laws are external to Canadian jurisprudence and — absent the Indigenous government’s agreement — the Charter should not apply to their internal laws. Particularly not in a manner that is both automatic and which risks rendering the Indigenous nations’ own constitution and highest law null and void.

Recognizing this, Canada’s renewed comprehensive land claims mandate requires modern treaties to confirm the Charter’s application to Indigenous Peoples. (Whether such “positional bargaining” is helpful for government-to-government negotiation or contradicts the right to self-determination under international law — such as United Nations Declaration on the Rights of Indigenous Peoples — is a topic for a future article). But the point is that this negotiating requirement was not in place when Vuntut Gwitchin First Nation (VGFN) concluded either its land claim or self-government agreement. Neither address how or if the Charter is to apply. Without the Indigenous government’s consent, there is no legitimate legal reasoning as to why the Charter would apply to the internal exercise of their inherent rights.

To implement the treaty in any other way would be to dishonour the negotiating process that takes place between governments. It also impermissibly violates the fundamental minimum right that Indigenous Peoples have to govern themselves in accordance with their own values and traditions. The collective rights of Indigenous Peoples have already survived hundreds of years of paternalism and suppression of their culture and laws. Modern treaty implementation is not yet another opportunity to continue the colonist’s work.

Keep in mind that throughout the process of negotiating s. 35 and the repatriation of the Constitution, Indigenous governments purposefully campaigned for it to live outside the Charter, and they were successful in doing so. This was done on purpose since the conceptual framework of individual human rights was fundamentally at odds with the communal character of Aboriginal rights. Both Indigenous governments and our Constitution itself envisioned the specifics and co-ordination between these rights — as with all of s. 35's rights — being best handled through the government-to-government discussions and negotiation that was to occur following the now-largely forgotten constitutional conferences under s. 37. And this issue remains far more political in its nature and substance than it is strictly legal.

Nevertheless, the trial and appellate level courts found that Vuntut Gwitchin First Nation legislation was inside the Charter’s purview. To reach this result, the law had to be bent in some odd ways. The courts didn’t agree with VGFN’s claim that the application of the Charter was a political issue that should be settled through talks between governments instead of in court. This despite Canada’s updated mandate implies that it is, and even though this issue is being actively discussed at self-government negotiating tables throughout the country.

From a legal point of view, this didn’t make sense, and from a political point of view, it wasn’t necessary because the evolving system of co-operative federalism lets different zones of sovereignty operate concurrently. If Indigenous law isn’t seen as a separate form of government when looking at specific Charter claims, it runs the risk of undermining the intent of s. 35 and diminishing the value of participating in modern treaty negotiations for Indigenous Peoples as a way to work with the settler state on long-standing efforts to reclaim self-determination.

Decolonizing Canadian law, embracing third order of government

Decolonizing our legal system requires recognizing and reconciling ourselves with its colonial roots. It also calls for unwavering adherence to a principled process, which includes intergovernmental negotiations.

The logic applied in seeking to transmute the beginning of the formal recognition for Indigenous Peoples’ prior, unextinguished and undiminished inherent right to govern themselves into an opportunity to subsume those same jurisdictions and authorities under a settler rights paradigm they had no input into, didn’t consent to, and that paid no regard to their own institutions, traditions and governing methods won’t get us where we want to go together. That sort of legal alchemy stems from the same paternalism and colonial mindset that attempts to justify the mere assertion of Crown sovereignty as sufficient to change Indigenous Peoples’ centuries-long relationship with their lands.

We have been down that road before. It is all too familiar. We know where it leads, and it is not to reconciliation or a productive working relationship as governing partners with the first peoples of this land.

However, a fair reading of the VGFN modern treaties and s. 35 would acknowledge the existence of three sovereignties in Canada’s pluri-national and -cultural federalist framework: Provincial, federal and Indigenous. Each equivalent in legal and constitutional terms within its respective sphere. While there is room for collaboration and concurrence, none is open to the unilateral imposition of the laws of the other onto their internal authorities absent collaborative consent.

That includes something as taken as a given and sacred to non-Indigenous Canadians as is the Charter. To hold otherwise and impose the Charter on Indigenous governments promotes a serious constitutional imbalance and lack of parallelism that diminishes and delimits Indigenous governments at the very moment of their reconciled rebirth within Canada’s constitutional order.

For these reasons, the Supreme Court’s upcoming decision in Dickson will have wide-ranging impacts on Indigenous rights, including customary election codes and other First Nations’ inherent jurisdiction exercises to make their own laws (Dickson v. Vuntut Gwitchin First Nation 2020 YKSC 22; Dickson v. Vuntut Gwitchin First Nation 2021 YKCA 5 (collectively, Dickson)). Consequently, Dickson could not only shape the relationship between Indigenous governments and the Charter going forward, but also has significant implications on how Indigenous self-government rights are negotiated, recognized and exercised, as well as the operation and interaction of the distinct orders of government in our federalist framework.

This is the second half of a two-part series. Part one: Opportunity for renewing treaty federalism, recognizing Canada’s legal pluralism.

Nick Leeson is an associate with OKT LLP, a law firm in Toronto and Yellowknife. He is based out of OKT’s Yellowknife office, representing Indigenous clients and interests from coast to coast to coast.

Photo credit / Mumemories ISTOCKPHOTO.COM

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