Wandering without a Torch: Federalism as a Guiding Light

By Mancini, Mark | University of New Brunswick Law Journal, January 2016 | Go to article overview

Wandering without a Torch: Federalism as a Guiding Light


Mancini, Mark, University of New Brunswick Law Journal


"If the national mental illness of the United States is megalomania, that of Canada is paranoid schizophrenia."--Margaret Atwood (1)

INTRODUCTION AND BACKGROUND

It is uncontroversial to state that the constitutional entrenchment of an inherent right of Aboriginal self-government has vexed jurists, legislators, and Aboriginal peoples for generations over. The historic failure of the Charlottetown Accord is evidence of this vexation. The Charlottetown Accord would have entrenched a third order of Aboriginal self-government (similar to the provincial order of government set out in s.92 of the Constitution Act, 1867) and set out its relationship to the catalogue of federal and provincial powers in the Constitution Act, 1867." This third order of government would have been inherent: it would arise because of an Aboriginal group's distinctive history and would not be dependent on Crown sovereignty. Of course, that accord failed by referendum, leaving the Constitution devoid of any recognition of a third order of government in the Canadian constitutional framework. The aftermath of the Charlottetown Accord and the subsequent failure to explicitly entrench an inherent right of self-government for Aboriginal peoples can be chalked up to at least two historical problems: the common law method and the difficulty of constitutional amendment. Both of these historical problems contribute today to the wandering of Aboriginal peoples without a torch in the annals of constitutional law. Thus, wrapping our heads around these issues is vitally important; particularly as we enter an era of reconciliation in Canada, following the election of a government that promises to do more to build a nation-to-nation relationship.

The first historical problem is the common law system--the case law method and its interaction with the complex amending formula contained in the Canadian Constitution. Justice Antonin Scalia put the essence of the common law method succinctly:

   This is the image of the law-the common law-to which an aspiring
   [...] lawyer is first exposed, even if he has not read Holmes over
   the previous summer as he was supposed to. He learns the law, not
   by reading statutes that promulgate it or treatises that summarize
   it, but rather by studying the judicial opinions that invented it.
   This is the famous case-law method (3)

The natural corollary of the case law method ensures that lawyers litigate; as such, the fundamental issues of our time (including the question of inherent Aboriginal self-government) are punted to the courts. The common law method of adjudicating rights has also been supported by the advent of the Charter of Rights and Freedoms (the Charter). (4) On this issue, the courts have responded by declining to answer whether a right to Aboriginal self-government is an "existing" Aboriginal right contained in s. 35(1) of the Constitution Act, 1982, (5) With the Charter, we are left with both a political and legal void on the issue. (6)

The second historical problem is the notoriously difficult amendment process contained in the Constitution Act, 1982. For ordinary amendments to the Constitution, seven of the provinces representing 50% of the population must agree. (7) For some amendments, unanimous provincial consent is required. (8) The difficulty in amending the Constitution continues to lead to real political consequences; now, constitutional amendments are covered with the cloak of impossibility. As such, a generation of Aboriginal sympathizers and advocates in the common law tradition have forced Aboriginal issues to the courts.

These two historical forces have led us to the current page of Canada's constitutional story. Inherent (pre-existing and not granted by the Constitution) (9) Aboriginal self-government does not truly exist in Canada. In other words, "at the time of Confederation there was no independent recognition of the status of the jurisdiction of Aboriginal governments. …

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