Invisibility, Wilful Blindness and Impending Doom: The Future (If Any) of Canadian Federalism

Abstract

The survival of humans as a species depends on what we will do in the next few years and that failure to act will lead to our extinction before the end of this century. This paper addresses the question whether Canadian federalism is fit to meet the challenges of the future. I try to demonstrate that part of our plight has to do with the way we conceive law, and more precisely how we apprehend constitutions, constitutionalism and federalism. I basically claim that by equating law with inanimate abstract norms, by conceiving the concept of law as a noun rather than a as verb, that is, as a hierarchy of rules rather than, in the words of Lon L. Fuller, as “a complex syste[m] of order that came into existence, not by a single act of creation, but through the cumulative effect of countless purposive directions of human effort”, we fail to grasp the relational character of law and constitutional law. By doing so, we lose sight of the human interactions hidden under the veil of notions such as “autonomy and rights”, “aboriginal title”, “sovereignty”, “peoples” and “nation”, etc. Most importantly, our conceptualizations have made invisible two profoundly important Canadian constituent actors: the non-human natural world and future generations. Our survival will depend on our ability to admit the complex relationships we, as Canadians, entertain with these living and yet unborn entities, and our ability to acknowledge their existence in the legal and constitutional fora.

Keywords: federalism, constitutional law, canada, indigenous law, indigenous sprituality, judicial review, environment