Looking inward: examining the scope of the Aboriginal right to self-governance at the common law

Despite judicial recognition of the prior sovereignty of Indigenous peoples, the aboriginal right to self-government has not yet been recognized by the Supreme Court of Canada. This paper asks: what is the scope of this right? The author uses a common law constitutionalist approach to argue that the right to self-governance includes matters not incompatible with the Crown’s assertion of sovereignty or those matters surrendered voluntarily via the treaty process. The scope of Indigenous common law jurisdiction is established by tracing the principle of continuity via the English imperial constitutional law regarding territorial acquisition in Canada. From this general relationship, the author suggests a number of ‘planks’ of governance that could be recognized by common law courts by reference to the scope of self-government agreements.Having established where the law should be on the scope of the right, the author then traces the jurisprudential history of the right after the enactment of section 35. This history is used to discuss flaws in relying on the cultural approach when defining aboriginal rights. Understanding the limitations of this approach is critical for analyzing the decisions of the Québec Court of Appeal and Supreme Court of Canada regarding references of An Act respecting First Nations, Inuit and Métis children, youth and families. The author argues that the endorsement of the cultural approach to defining aboriginal self-governance rights in both decisions can preclude a judicial shift towards an understanding of Indigenous Peoples as political entities rather than groups with special cultural minority rights. This ‘doubling-down’ on the cultural approach avoids recalibrating questions of the aboriginal right to self-government along the lines of jurisdictional conflict, which courts are more familiar with when resolving disputes between governments.

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