Aboriginal Governments and the Canadian Charter of Rights and Freedoms

Osgoode Hall Law Journal, Vol. 34, pp. 61-99, 1996

20 Pages Posted: 28 Jul 2010

See all articles by Kent McNeil

Kent McNeil

York University - Osgoode Hall Law School

Date Written: 1996

Abstract

Starting with the premise that the Aboriginal peoples of Canada have an inherent right of self-government which is constitutionally protected, this article analyzes the issue of whether Aboriginal governments exercising that right are subject to the Canadian Charter of Rights and Freedoms. This issue is examined from a legal perspective based on textual analysis and common law principles. It is concluded that, as a matter of Canadian constitutional law, with the exception of the section 28 gender equality provision. the Charter does not apply to Aboriginal governments. This avoids imposition of the Charter generally on these governments by judicial decree, leaving the more fundamental policy issue of whether the Charter should apply in this context open to negotiation and political agreement with the Aboriginal peoples.

Keywords: Aboriginal, Self-government, Constitution, Canada, Charter of Rights, Aboriginal governments

JEL Classification: K39

Suggested Citation

McNeil, Kent, Aboriginal Governments and the Canadian Charter of Rights and Freedoms (1996). Osgoode Hall Law Journal, Vol. 34, pp. 61-99, 1996, Available at SSRN: https://ssrn.com/abstract=1649473

Kent McNeil (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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