First Nations Self-Government and the Borders of the Canadian Legal Imagination

Abstract

Self-government has become a major policy objective for First Nations in Canada. The common law of aboriginal title, the law relating to treaty rights and treaty interpretation, the distribution of legislative authority over indigenous peoples, and emergent jurisprudence under s. 35(1) of the Constitution Act, 1982, currently resist native aspirations for greater control over their individual and collective destinies by imposing Anglo-Canadian categories of legal understanding onto indigenous reality. The imposition of Anglo-Canadian norms is effected in law by a rhetoric of justification that simultaneously views indigenous people as similar to and different than non-indigenous people, and establishes and maintains legal relationships of dependence and hierarchy between First Nations and the Canadian state. Each area of the law, however, contains moments of transformative possibility that could assist in the realization of First Nations self-government. The author argues for specific reconceptualizations of Anglo-Canadian conceptions of property, contract, sovereignty, and constitutional right to permit the construction of legal spaces in which First Nations self-government can take root and flourish and to enable indigenous peoples to participate in the formation of laws that shape and govern their lives.