Wandering Without a Torch: Federalism as a Guiding Light

Abstract

Since the failure of the Charlottetown Accord in 1992, which would have entrenched a third order of aboriginal self-government alongside the federal and provincial orders, aboriginal self-government has not been conceived in terms of federalism doctrine. Instead, the negotiation of aboriginal self-government has been left to the vicissitudes of political drama and s.35(1) of the Constitution Act, 1982. Both options fail to capture the true nature of self-government as a concept; the exercise of a jurisdictional, rather than individual, right.

The author argues that existing federalism doctrine, painstakingly developed over generations, can provide the theoretical framework by which to understand an inherent form of aboriginal self-government in the Canadian federation. Aboriginal issues, with few exceptions, have almost exclusively been understood under the individualistic rubric of Charter-type litigation in common law courts. But, the Charter, and by extension s.35(1), cannot capture the institutional and communal character of aboriginal self-government. Canadian federalism, on the other hand, can.

The paper reviews the political basis of Canadian federalism, its translation into stable legal doctrines, and the strength of these doctrines in comparison to the alternatives. On the whole, the paper argues that federalism must not be sacrificed at the altar of individual rights, as institutional studies are still useful in understanding modern problems within the Canadian federation.

Keywords: Constitutional law, aboriginal law, Canadian federalism