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The Oxford Handbook of the Canadian Constitution edited by Oliver, Peter; Macklem, Patrick; Des Rosiers, Nathalie (19th October 2017)

Part III Indigenous Peoples and the Canadian Constitution, A Indigenous Sovereignty, Ch.13 Contending Sovereignties

Jeremy Webber

From: The Oxford Handbook of the Canadian Constitution

Edited By: Peter Oliver, Patrick Macklem, Nathalie Des Rosiers

(p. 281) Chapter 13  Contending Sovereignties

1.  Introduction

The essential principles of Aboriginal law emerged out of a long process of interaction between Indigenous peoples and French, British, and then Canadian governments in North America. It is, fundamentally, a body of ‘intersocietal law’ developed out of the experience of living together, combined with reflection and experimentation to determine what might serve as workable principles of co-existence in this land.1

To say that the principles were intersocietal is not to idealize the interaction. The practices that were adopted were marked by power and even, at times, by brutal imposition. Indeed, it is useful to think in terms of periods with, in the earliest period, patterns of conduct established that assumed the identity of Indigenous peoples as substantially autonomous, self-governing peoples—patterns of conduct that were grounded in the collaborative relations of the fur trade and colonial powers’ need for Indigenous allies in their competition with rival powers. Those relations, however, were substantially undermined, indeed forcibly displaced, as agricultural settlement took precedence over the fur trade and collaboration gave way to dispossession. In this second period, Indigenous peoples were pushed to the margins, land and treaty rights were eroded, the political (p. 282) autonomy of Indigenous peoples was denied, and Canadian governments imposed an ostensibly paternalistic regime of land administration, community control, and child-rearing that subjected Indigenous peoples to the decision-making of non-Indigenous civil servants and the pervasive influence of non-Indigenous institutions.

The results were devastating, leaving in their wake a legacy of shattered lives and troubled communities. This prompted, beginning especially in the 1960s, a growing resurgence of Indigenous initiatives for cultural revitalization, the protection of Indigenous lands, and the re-assertion of Indigenous control over their peoples’ futures. Thus began the third period, marked by increasing recognition on the part of Canadian citizens and governments of the miserable consequences of the period of dislocation, and an increasing willingness to explore whether a better relationship might be established on the basis of principles derived from the more productive relations of the first period. It was during this third period that the courts recognized the binding force of treaty rights and Aboriginal title in contemporary Canadian law,2 that the first modern treaty was concluded,3 that mechanisms (albeit imperfect) were put in place to address Indigenous claims based on treaty and Aboriginal title, that the phasing out of residential schools commenced, and that governments began to grapple with Indigenous demands to govern themselves.4

This resurgence of Indigenous advocacy occurred in the years immediately prior to the patriation of the Canadian Constitution and led to the inclusion within the patriation package of section 35 of the Constitution Act, 1982, the essential clause of which reads as follows:

35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

This became the foundation for the constitutional protection of Indigenous rights. The content of the protected rights did not derive from section 35. By its very terms, section 35 recognized rights presumed already to exist. Moreover, those rights had been the subject of contestation over the course of Canadian history, with many of the most important developments occurring in the decade immediately prior to patriation. The engagement with the historical record therefore has to be critical, combining normative reflection and deliberation with close attention to the history of Indigenous/non-Indigenous interaction. It derives principles from that long experience, identifying constitutional norms, weighing them, and searching for the most compelling fit between principle and experience. Indigenous rights are, then, intersocietal law, but that law’s identification and development has occurred through continual critical deliberation. (p. 283) This also means that the generation of Indigenous rights is not locked in the distant past. It is happening right now as participants reflect upon the course of the relationship and seek to develop principles appropriate to it.5 Moreover, the critical actors in its emergence are not merely courts. Indigenous rights have been shaped by constitutional negotiations, treaties, legislative initiatives, executive action, judicial decision, academic reflection, and, above all, the principled self-assertion of Indigenous peoples.

Nowhere are these characteristics of Indigenous rights more pronounced than with respect to questions of sovereignty. The notion of Indigenous sovereignty has been invoked expressly only sparingly in Canada (unlike, for example, the United States, where a limited form of Indigenous sovereignty is expressly recognized in law6). In Canada, parties have tended to discuss political and legal authority using other terms, especially ‘self-government’, with some form of sovereignty apparently implicit in the use of the term ‘inherent’ to describe the right to self-government. One suspects that the parties have judged that the term ‘sovereignty’ itself—carrying, as it often does, an implication of ultimate decision-making authority—was more of an obstacle than an aid to reconciliation, especially as virtually all parties have accepted that viable solutions have to be secured through co-determination rather than imposition. And yet questions bound up with sovereignty run throughout the Indigenous dimensions of the constitution: questions about the grounding of governmental authority, the scope of Indigenous jurisdictions, the definition of Indigenous nations, the sources of Indigenous law, and relations of precedence and subordination between Indigenous and non-Indigenous institutions. Certainly Canadian governments have long claimed to be sovereign, not least in relation to Indigenous peoples. Perhaps in response, Indigenous peoples also have, from time to time, claimed sovereignty. As we will see, the courts too have been drawn to discuss sovereignty, albeit carefully and tentatively. Questions of sovereignty are inherent in the discussion of Indigenous rights, as one might expect given that those rights speak to relations of law and governance between societies.

This chapter begins by examining the ways in which sovereignty and related concepts—especially rights of self-government—have been invoked in constitutional negotiations, the courts, and legislative action. In that part, I attempt to reveal both the extent to which Indigenous sovereignty has been discussed within Canadian constitutional deliberation and the state of an Indigenous right of self-government generally. I then turn to the concept of sovereignty itself. Sovereignty is often used to express a number of claims. Those claims can be combined in a single, compound concept but they can also be held individually. It is worthwhile teasing apart the claims in order to identify precisely what is in issue in a particular case. Otherwise one can substantially misread a party’s objectives, and opportunities for resolving conflicts can be (p. 284) missed. That is especially true, as we will see, when it comes to Canada’s contending sovereignties.

2.  Indigenous Sovereignty and Self-Government in the Canadian Constitution

This section will focus on constitutional actors’ engagement with sovereignty in the period following the adoption of the Constitution Act, 1982. Two aspects of the constitutional landscape prior to 1982 need to be mentioned, however.

First, although I will focus primarily on the positions adopted by state actors, the impetus that drove all these developments was Indigenous peoples’ commitment to sustaining their existence as peoples, maintaining their law, and determining, to the greatest extent possible, their own collective fate. Indigenous peoples pursued that commitment with great tenacity even under heavy pressure. The 1885 ban on the potlatch, for example, outlawed the traditional government structures of many peoples of the Pacific Coast, and yet members did their best to sustain the meetings in secret and, when the ban was lifted in 1951, they restored them to their central place within their communities.7 Indigenous peoples across Canada also fought successfully to remove federal Indian agents from their communities so that the structures of band government recognized under the Indian Act could exercise their powers without the agents’ veto, eventually succeeding in the 1960s. Indigenous peoples’ refusal to acquiesce in their subjection, and their attachment to their laws and institutions, preserved an Indigenous autonomy to which Canadian institutions, ultimately, were forced to respond.

Second, the long engagement with issues of Aboriginal title also was, in substantial measure, a struggle for Indigenous legal and governmental autonomy. Aboriginal title appears, superficially, to be about property rights but, rather than property, a better analogy is the claim of states to their territory in international law. One sees this if one examines the nature of Aboriginal title in Canadian law. There, Aboriginal title is treated as though it were held in undivided co-ownership by the people concerned. Within the communities themselves, however, the land tends to be held by particular families, lineage groups, or individuals, not by the people as a whole. Canadian law’s insistence on the collective nature of Aboriginal title is not designed to displace these rights and impose communal ownership. It refers to the fact that, from the point of view of the Canadian state, the apportionment of land within the community is left to the laws and procedures of the people concerned. It recognizes a sphere of jurisdiction, not (p. 285) property rights as such. Examples from the law of Aboriginal title might be multiplied.8 The essential point is that in striving for the recognition of Aboriginal title, Indigenous peoples have sought to maintain autonomous spheres in which their law and governance could continue to function.

A.  Indigenous Sovereignty and Self-Government in Constitutional Reform

Indigenous peoples have also worked to have their rights to self-government expressly recognized in the Constitution. As we saw above, section 35 of the Constitution Act, 1982 recognized and affirmed ‘existing aboriginal and treaty rights’ without specifying their content. In fact, because of the vagueness of the section, because it was qualified by the term ‘existing’ (which Indigenous peoples worried might leave them merely with the remnants of rights), and because it was very uncertain whether ‘recognized and affirmed’ created any sort of constitutional guarantee, leaders of the National Indian Brotherhood (the principal representative of First Nations in Canada, later renamed the Assembly of First Nations) had rejected the clause and opposed patriation. In response, the framers had committed themselves, in section 37 of the Constitution Act, 1982, to hold a constitutional conference with Indigenous leaders, devoted to Indigenous issues, within one year of section 37 coming into force.

Between 1983 and 1987, four such conferences were held. It quickly became clear that the primary Indigenous demand was that the Constitution recognize that Indigenous peoples possessed an inherent right of self-government. Ultimately, the federal government and five provinces expressed their willingness to recognize such a right in principle, although they resisted having the right directly enforceable before the courts, arguing that the complexity of the issues involved in recognizing a third order of government—what should be the dimensions of Indigenous nations, who belonged to them, who was entitled to exercise their powers, by what process, over what matters—required that self-government be instituted through negotiations. In any case, the consent of five provinces was insufficient to adopt such an amendment and the negotiations ended in failure.9

The lack of progress on Indigenous self-government was one of the principal reasons for the 1990 failure of the Meech Lake Accord—the bundle of amendments designed (p. 286) to secure Quebec’s willing adherence to the Constitution. Meech’s failure was followed by frantic efforts to conclude a new constitutional settlement, one that would retain the essence of Meech but also address matters that Meech had not included. The resulting Charlottetown Accord, agreed to by the federal government and all Canadian provinces and territories in 1992, would have recognized that ‘[t]he Aboriginal peoples of Canada have the inherent right of self-government within Canada’.10 It also would have required what were, in effect, court-supervised negotiations regarding the implementation of the rights. The Charlottetown Accord also collapsed when it was rejected, for reasons too complex to be discussed here, in a national referendum. But Charlottetown nevertheless demonstrated significant acceptance by Canadian governments of the principle of Indigenous self-government.

Would that recognition, if adopted, have amounted to an acknowledgement of Indigenous sovereignty? The constitutional proposals avoided the term but, as we will see below, the description of the right as ‘inherent’ does evoke one of the principal meanings associated with sovereignty. Moreover, Charlottetown contemplated that Indigenous governments would be treated as ‘one of three orders of government in Canada’.11 That language clearly contemplated that Indigenous governments should have a status equivalent to that of the other two orders of government, the federal and provincial levels, which, in Canadian constitutional law, are considered to be sovereign in their spheres.12

That certainly was the interpretation given to that language by the Royal Commission on Aboriginal Peoples (RCAP). RCAP had been established in 1991 in the aftermath of the failure of the Meech Lake Accord and in the midst of severe tensions between the government of Canada and Indigenous peoples. Over the course of the next five years, it conducted a searching inquiry into all aspects of Indigenous/non-Indigenous relations, holding hearings throughout the country and issuing several interim reports and a multi-volume final report. It too recommended that Indigenous governments be treated as one of three orders of government, in which each order ‘operates within its own distinct sovereign sphere, as defined by the Canadian constitution, and exercises authority within spheres of jurisdiction having both overlapping and exclusive components’.13

There have been no further attempts at comprehensive reform of the Canadian Constitution, but self-government rights for some peoples have been achieved piecemeal through contemporary treaties and self-government agreements. These can be very significant. The Inuit-majority territory of Nunavut, for example, was created as (p. 287) a result of the Nunavut Land Claims Agreement of 1993. There is, however, significant variation in the powers that Indigenous governments have been able to secure. Indeed, Indigenous peoples attempting to negotiate self-government often complain that the powers acceptable to Canadian provinces are closer to those of municipalities. It is also possible for these agreements to benefit from constitutional protection under section 35 as ‘treaty rights’. The degree of protection is, however, subject to two important caveats: (1) the terms of the agreements themselves sometimes limit the rights and obligations that are created; and (2) the effective autonomy of Indigenous peoples depends heavily on rules, also contained within the agreements, for determining which rules take precedence in the case of a conflict. Principles regulating interjurisdictional conflicts exist in any federal system, including between the federal and provincial levels of government in Canada, but the rules contained within modern-day treaties are often particularly complex.

It is still the case, then, that the Canadian Constitution does not expressly contain an Indigenous right of self-government. The developments sketched above do suggest an emerging consensus in favour of the recognition of Indigenous governance rights (although the extent of those rights remains a matter of dispute) and perhaps also a willingness to treat Indigenous governments (at least rhetorically) as having a status similar to that of the federal and provincial levels of government. Canadian governments, however, remain cautious about creating an enforceable right of self-government expressed at a high level of generality, no doubt for the same reasons that they resisted an enforceable right during the constitutional negotiations of the 1980s, namely their conviction that detailed structures of governance need to be negotiated. There has been some progress in negotiating those agreements for particular peoples as part of modern-day treaties. And, quite apart from constitutional and treaty negotiations, there have been many intriguing governance initiatives pursued by Indigenous peoples on their own or, in the case of the co-management of resources, through non-treaty agreements between Indigenous peoples and Canadian governments. We will return to one striking example after examining the treatment of Indigenous governance before the courts.

B.  Sovereignty and Self-Government in the Judicial Interpretation of Section 35

Indigenous parties have also attempted to establish a constitutional right to self-government through the courts. These have met with very limited success. The Supreme Court of Canada in Pamajewon held that claims to self-government could not be general in nature but (following the restrictive approach to Indigenous rights established in Van der Peet14) had to be made in relation to a specific field, with the claimant establishing that the power to regulate that field was integral to the distinctive culture of the (p. 288) people claiming the right. An example of just how specific is given by Pamajewon itself, where the Court held that the relevant area was ‘the regulation of gambling’. It decided that the evidence was insufficient to establish the right.15

The question of self-government came before the Supreme Court of Canada again in Delgamuukw. In that case, the Court decided that the narrow Van der Peet approach was inappropriate for questions of Aboriginal title. It held that Aboriginal title was general in character, comprising virtually the entire beneficial interest in the land. It therefore put in place very different requirements from those applicable to more specific Aboriginal rights. Given the manner in which the case had been pleaded at trial, the Court held that it was unable to rule on the existence of Aboriginal title and referred the case back to trial (a trial that never occurred). With respect to self-government, its reasons were more ambiguous. Like Aboriginal title, it referred the question of self-government back to trial. As for the manner in which such a right should be framed, the Court referred to Pamajewon but did not specifically affirm that case’s approach. Significantly, the Court commented on how difficult it was to determine ‘the difficult conceptual issues which surround the recognition of aboriginal self-government,’ noting that RCAP had devoted 277 pages to the issues. One suspects that, given this complexity, the Court tends to share the view that negotiations would be required to establish acceptable government structures.16

But although the Supreme Court of Canada has been reluctant to be drawn into the adjudication of the structure of Indigenous governments, it has been willing, cautiously, haltingly, to pose fundamental questions regarding the contending sovereignties of Canadian constitutionalism. It has done so when articulating constitutional principle at the broadest level, specifically when describing the moral challenge at the foundation of the constitutional protection of Indigenous rights. It has not purported to answer the questions it has posed. Clearly it believes that they are too difficult for quick response. They are the kind of questions that one must attend to, but that can only be answered over time through dedicated, persistent, and self-critical deliberation.

That the Court should begin to pose such questions is striking. Twenty-five years ago, few judges would have thought there could be any doubt that the sovereignty of Canadian institutions excluded any rival sovereignty held by Indigenous peoples. In the Supreme Court’s pathbreaking decision on section 35, R v Sparrow (1990), Dickson CJ and La Forest J spoke for a unanimous Court saying: ‘there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown’.17 Indeed, I suspect that many Canadian judges would have agreed with the dictum of Jacobs J in the High Court of Australia in Coe (p. 289) v Commonwealth of Australia (1979) that a challenge to a nation’s sovereignty was ‘not cognisable in a court exercising jurisdiction under that sovereignty which is sought to be challenged’.18

Remarkably, however, the Supreme Court of Canada has ventured into that territory in its discussions of Indigenous/non-Indigenous reconciliation. In its first statements on the topic, it affirmed that the purpose of section 35 was to reconcile ‘the pre-existence of aboriginal societies’—or, alternatively, ‘prior Aboriginal occupation’—with the sovereignty of the Crown. In those formulations, it did not expressly attribute sovereignty to Indigenous societies.19 It did do so in Haida Nation (2004), stating that treaties ‘serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty’.20 The Court has also begun to qualify its acknowledgement of Crown sovereignty: that sovereignty is said to be merely ‘assumed’, ‘asserted’, or in one striking decision ‘de facto’.21

These statements do not themselves amount to an acceptance that Indigenous sovereignty continues into the present day, although they do not exclude that possibility. But they certainly state that Aboriginal rights are grounded in the search for reconciliation between societies, each of which is entitled to be included in the constitutional order; they acknowledge that notions of sovereignty are implicated in that encounter; and they suggest that until reconciliation is achieved, Canadian sovereignty is somehow imperfect, ‘asserted’, ‘de facto’. A persuasive way to understand that last claim is that it is plausible to argue, in the case of non-Indigenous Canadians, that sovereignty is grounded in consent of the people; it is not in the case of Indigenous peoples. The task of the Indigenous provisions of the Constitution is to change that situation.

That is the extent of the Supreme Court of Canada’s discussion, in majority judgements, of Indigenous sovereignty. In one concurring judgement, however, two members of the Court, Binnie and Major JJ, have gone further. They suggest that Indigenous self-government might be nested within an overarching Canadian sovereignty, so that Canada is conceived in terms of ‘merged’ or ‘shared’ sovereignty. That language draws upon the conclusions of RCAP and, like the invocation of ‘a third order of government’ in the failed Charlottetown Accord, implies that Indigenous governance might be seen as a species of federalism.22 The majority of the Court did not join in their reasons, however. The Court clearly wants to stimulate the search for reconciliation; it genuinely sees reconciliation as the fundamental purpose of section 35, and has held that that purpose must shape the interpretation of Aboriginal rights, but it believes that the solution must (p. 290) be devised by means that are more participatory, cross-cultural, flexible, and varied than are possible in proceedings before the courts.

C.  Agonistic Constitutionalism

Analogies to federalism do offer a convincing analysis of how Indigenous governments ought to relate to Canadian institutions, but there is wisdom in the Court’s caution. Reconciliation takes place against the backdrop of a troubled history. If it is to be reconciliation of the kind suggested by the Court—reconciliation that grounds the legitimacy of Canadian institutions upon Indigenous as well as non-Indigenous foundations—then Canadians need to undertake the challenges of listening, engagement, and translation across normative vocabularies. That process has hardly begun. It is likely in any case to involve trial and error. How then should we proceed? The attempt to tease apart the various strands that are often confounded in discussions of sovereignty—the task of the following section of this chapter—will, I hope, assist by clarifying what is in issue. In addressing those questions of constitutional theory, however, it will help to have before us a remarkable initiative, one that opens up possibilities that we often unknowingly foreclose.

The Haida Gwaii Reconciliation Act was adopted in 2010 by the British Columbia legislature.23 It establishes a land management regime for Haida Gwaii (formerly the Queen Charlotte Islands; the act officially changed their name to the Haida name). The act creates a management structure with representation both from the Haida Nation and the province, and gives legislative effect to a protocol negotiated between the provincial government and the Haida. Co-management structures are common. What is novel is the framing of the initiative in the statute’s preamble, especially its fifth recital. It says:

AND WHEREAS the Kunst’aa guu—Kunst’aayah Reconciliation Protocol provides that the Haida Nation and British Columbia hold differing views with regard to sovereignty, title, ownership and jurisdiction over Haida Gwaii, under the Kunst’aa guu–Kunst’aayah Reconciliation Protocol the Haida Nation and British Columbia will operate under their respective authorities and jurisdictions;

Thus, in the introduction to a sovereign act of the British Columbia legislature, the province acknowledges the Haida’s rival claims to sovereignty, title, ownership, and jurisdiction. It notes that the parties disagree on these matters, but then goes on to acknowledge that the province and the Haida will implement the agreement ‘under their respective authorities and jurisdictions’. The Kunst’aa guu–Kunst’aayah Protocol is even more striking.24 It states that ‘[t]he Parties hold differing views with regard to sovereignty, (p. 291) title, ownership and jurisdiction over Haida Gwaii … ’ and then sets out the differing views in two columns:

The Haida Nation asserts that:

  • Haida Gwaii is Haida lands, including the waters and resources, subject to the rights, sovereignty, ownership, jurisdiction and collective Title of the Haida Nation who will manage Haida Gwaii in accordance with its laws, policies, customs and traditions.

British Columbia asserts that:

  • Haida Gwaii is Crown land, subject to certain private rights or interests, and subject to the sovereignty of her Majesty the Queen and the legislative jurisdiction of the Parliament of Canada and the Legislature of the Province of British Columbia.

As constitutional lawyers, we tend to assume that fundamental questions—certainly so fundamental a question as the location of sovereignty—have to be settled before anything else can be done. But is that the case? Isn’t it true that many of our foundational principles are disputed over a very long time, yet we nevertheless manage to collaborate in workable structures of government? The Haida Gwaii Reconciliation Act expressly recognizes that fact, states that the parties agree to disagree over fundamental notions of sovereignty and jurisdiction, and proceeds to implement an agreed structure of joint decision-making. It is an example of ‘agonistic constitutionalism’, in which constitutional government acknowledges the pervasiveness of fundamental political disagreement, accepts that it will persist, and proceeds to establish principles and processes that can sustain collaboration even in the face of disagreement.25 Agonistic constitutionalism is more common than we tend to realize. In the Canadian context, the Secession Reference,26 discussed in Chapter 47 of this Handbook, is a prime example.

3.  The Interplay of Canada’s Contending Sovereignties

Sovereignty is not just one thing. It generally is a bundle combining several distinct claims. Here I identify five that are relevant to the Indigenous context in Canada, explaining the extent to which these claims have figured in the debate over Indigenous rights in Canada.27 It is worth distinguishing among them. Parties often mean very (p. 292) different things when they speak of sovereignty. The use of the term can therefore obscure more than it reveals.

A.  Sovereignty 1: The Final Power of Decision

The first claim associated with sovereignty is perhaps the most familiar: the idea that sovereignty is the ultimate, ostensibly unconstrained, right to determine what is law—in the phrase that the English jurist Albert Venn Dicey applied to the sovereignty of Parliament, sovereignty is ‘the right to make or unmake any law whatever.’28 This is Sovereignty 1.

Sovereignty 1 has played an important role in relations between Indigenous peoples and the Canadian state. It is this absolute entitlement to make law, attributed to the Canadian state, that underpins the view, dominant until the adoption of the Constitution Act, 1982, that the Canadian Parliament could extinguish any Aboriginal right as long as its intention to do so were sufficiently ‘clear and plain’.29 It is also, one suspects, the principal reason that Canadian legislatures and courts have been reluctant to acknowledge that Indigenous peoples possess sovereignty. If Indigenous peoples are sovereign, are they able to decide matters without regard to Canadian law? Are Canadian institutions powerless to constrain them? Sovereignty 1 functions as the ultimate powerplay: an assertion of unlimited entitlement to make law. As such, it is resistant to compromise. To surrender any part of Sovereignty 1 is to lose it.

The adoption of section 35 of the Constitution Act, 1982 might be said to have changed the nature of Sovereignty 1. The Supreme Court of Canada’s decisions in Delgamuukw and Tsilhqot’in Nation make clear that infringements of Aboriginal title can only occur lawfully either with the consent of the Indigenous people concerned or following the tests of justification set out in those judgements.30 In that sense, the application of section 35 has limited the freedom of action of Canadian legislatures. Section 35 might be seen, then, as an autolimitation of Canadian sovereignty. A Sovereignty 1 theorist, however, would not see it in this fashion. Rather, the theorist would see the change as a restructuring of the exercise of Sovereignty 1, shifting some authority to decide from the legislatures to the courts, all subject to the overriding power of the constitutional amending formula. Under modern conceptions of Sovereignty 1, sovereign power resides in the constitutional order as a whole; absolute power may therefore continue to exist in the whole order even if its exercise requires complicated procedures and the coordination of multiple institutions. On this view, despite the adoption of the Constitution Act, 1982, Sovereignty 1 continues to reside within the institutions of Canadian law.

(p. 293) B.  Sovereignty 2: Status as a State in International Law

A second claim often associated with sovereignty focuses on the international sphere. Sovereignty 2 is the ultimate entitlement to represent a population and territory in international law—the possession of the distinctive legal personality associated with states.

This conception of sovereignty has also had an influence, from time to time, on Indigenous rights. The courts’ endeavour to determine the status of treaties with First Nations had to confront the question of whether these were treaties between international sovereigns, constituting treaties in international law. The courts decided that they were indeed treaties, but sui generis (of their own kind), having effect within domestic rather than international law.31 The celebrated decisions of Marshall CJ of the United States Supreme Court in the early nineteenth century, from which the American acceptance of Indigenous sovereignty derives, also explored whether First Nations constituted separate states. He held that they were ‘domestic dependent nations’ existing under the suzerainty of other states, more akin to protectorates in international law.32 The Marshall decisions have been influential in Canada, drawing as they do on a common colonial experience, although the Canadian courts have not embraced, as yet, Marshall’s conception of restricted sovereignty.

Occasionally, although very rarely, an Indigenous people has claimed to be fully a sovereign state.33 Much more commonly, indeed in Canada virtually universally, Indigenous peoples have claimed to have international legal personality as ‘peoples’, so that they have a measure of independent standing in international organizations and benefit from the right of self-determination in international law, but without asserting full statehood.34 At least to this point, the great majority of Indigenous representatives have tended to argue that self-determination would be exercised internally, within states. The notion that Indigenous governments should be recognized as a third order of government within Canada, analogous to the federal and provincial orders of government, certainly conforms to that view. In all but the most exceptional situations, then, Sovereignty 2 is not in issue.

C.  Sovereignty 3: The Originating Source of Law

Sovereignty 3 consists in the grounding of the ultimate authority for law and governance within one’s own society, so that political power is, in a very real sense, self-authorized and self-determined—not dependent for its authority on the gift of any outside party. (p. 294) The concept of popular sovereignty is an expression of Sovereignty 3, emphasizing as it does the anchoring of political legitimacy within the citizenry. If Sovereignty 1 focuses on the effects of political authority—on a government’s entitlement to exercise ultimate power—Sovereignty 3 focuses on the origin of political authority—on a government’s authority springing from within.

This, I suggest, is what most Indigenous leaders mean when they invoke sovereignty. Sovereignty 3 accords very closely with the language they use to express their aspirations. In RCAP’s final report, the Commission summarized Indigenous representatives’ testimony as follows:

For many Aboriginal people, this is perhaps the most basic definition of sovereignty—the right to know who and what you are. Sovereignty is the natural right of all human beings to define, sustain and perpetuate their identities as individuals, communities and nations.

From this perspective, sovereignty is seen as an inherent attribute, flowing from sources within a people or nation rather than from external sources such as international law, common law or the Constitution.35

Sovereignty 3 captures the most natural meaning of self-government as an ‘inherent right’. And it tracks the concept of self-determination so important in the negotiations leading to the United Nations Declaration on the Rights of Indigenous Peoples.36

It is also evident in the Haida Gwaii Reconciliation Act and the Kunst’aa guu—Kunst’aayah Reconciliation Protocol, where those instruments emphasize that British Columbia and the Haida Nation will operate ‘under their respective authorities and jurisdictions’. That example also reveals that it is possible to assert Sovereignty 3 without insisting on Sovereignty 1. The instruments do not stipulate that either British Columbia or the Haida Nation must possess the ultimate authority to decide (although doubtless the province’s representatives would assert that Canadian law applies; that is one of the aspects of sovereignty over which the parties disagree). Rather, they contemplate the operation of both sets of authorities and jurisdictions in parallel, without specifying that one needs to be subjected to the other.

Sovereignty 3 also fits nicely within the concept of reconciliation articulated by the Supreme Court of Canada. That approach emphasizes, above all, the need to found the legitimacy of Canadian institutions on principles that can plausibly appeal to all Canadians, Indigenous and non-Indigenous. That goal necessarily means that one must find some way to anchor the legitimacy of Canadian institutions both in the legal and political traditions of Indigenous peoples and those of other Canadians. That is why (p. 295) treaties exercise such a powerful force on the Canadian legal imagination. They embody the aspiration to found political community on principles acceptable to all.37

D.  Sovereignty 4: A Unified and Rationalized Order of Law

Sovereignty 4 emphasizes that a society’s legal order should be organized in a unified, consistent, and rationalized fashion, coherent and non-contradictory across the whole body of law. A corollary of this goal is that a society should have an institutional structure that can guarantee this unity, notably mechanisms for the final adjudication of questions of law so that inconsistencies can be eliminated. To be sovereign, in other words, a society must be organized as a state.

This meaning of sovereignty is, I suspect, the least idiomatic of those presented here, primarily because we theorists are so used to working within state structures that we lose sight of their specificity. We can see the link to conceptions of sovereignty, however, if we ask, ‘Can a nation truly be sovereign if it has no mechanisms for ensuring that decisions taken by agencies in the society conform to the law of the society?’ Moreover, if one wanted to identify why the arena of international law and international organizations lacked sovereignty in its own right, one would, I believe, fall back upon something like Sovereignty 4: there are insufficient mechanisms for imposing normative coherence. Indeed, I suspect that it is questions such as these that, for a very long time, led some jurists to doubt whether Indigenous peoples even had law or government (just as the status of international law was once a matter of controversy).

Canadian jurists have now conclusively rejected that blinkered conception of law, but Sovereignty 4 continues to generate problems in the area of Indigenous rights. North American Indigenous peoples are, traditionally, non-state peoples, and their structures of law and governance often maintain elements of a non-state character, such as the distribution of legal authority among diverse units of political organization (nations, clans, villages, families), the persistence of distinct traditions of law and governance among these various units, and the lack of binding mechanisms for adjudicating among these variant traditions. One of the great challenges of Canadian constitutionalism is therefore how to manage the interaction between state and non-state forms of social ordering. Most of our mechanisms are premised on the centralization of authority and the crisp clarity of rules typical of states.

If we do succeed in meeting that challenge, we are likely to advance our understanding of law in non-Indigenous contexts as well. That certainly is true of the international realm—the legal order of which states are members but which is itself beyond the authority of any state. Something similar is true within domestic legal orders. Think for (p. 296) a moment of the assertions made above with respect to Sovereignty 4. In what society is that degree of consistency truly guaranteed? If those values operate more at the level of aspiration than accomplishment, and if there is a plurality of normative orders operating within any complex society, then an understanding of non-state legal orders will help us to understand state legal orders as well.

E.  Sovereignty 5: The Unified Representation of Political Community

The final form of sovereignty addressed here is Sovereignty 5, in which sovereignty is identified with the capacity to represent the society as a whole. This unified embodiment of the political order, this personification of the order, is classically identified with an individual. This is perhaps the oldest conception of sovereignty, captured in the idea of one’s monarch as one’s sovereign.

Sovereignty 5 has lost much of its prominence within contemporary Canadian constitutionalism, although it is retained within the institution of the head of state (as we have seen in Jennifer Smith’s chapter on the Crown). A significant expression of this notion in the Indigenous context was evident at the time of patriation. Then, a central argument of some of the First Nations that opposed patriation was that their treaties had been concluded with the British monarch, and that they were dependent on the personal honour of the Crown, so that, when the constitutional connections to the United Kingdom were severed, the treaties themselves would be undermined. Their arguments were rejected by the Court of Appeal of England and Wales on the grounds that the Crown was now represented by its Canadian ministers.38

Such arguments are rarely if ever made with respect to constitutional rights of self-government, but it is still worth remembering Sovereignty 5. There are close affinities between it, the political theory of Thomas Hobbes, and, through Hobbes, the constitutional theories of the Nazi-era jurist Carl Schmitt—arguments that are influential in contemporary discussions of sovereignty.39 Schmitt emphasizes the personalization of sovereign authority for at least three linked reasons: (1) because (in his view) the concentration of political authority in one person guarantees, as nothing else can, the unity of the political order; (2) because doing so maximizes the ability of governments to make clear decisions; and (3) because it also emphasizes personal political responsibility, for an identifiable person holds and wields political power. I do not accept Schmitt’s analysis. Far from it.40 But the challenges posed by his arguments need to be answered.

(p. 297) Implicit in the Supreme Court of Canada’s concept of reconciliation—and indeed in the dynamic of Indigenous societies’ own constitutions—is that unity and stability is best achieved not by centralized imposition but by broadening the foundations of political legitimacy to secure members’ willing adherence. The second concern with governments’ ability to make decisions also deserves consideration. That capacity—the exercise of political agency—is the substance of the right of self-government. Indeed, I suspect that a concern with political agency underlies Sovereignty 1’s chief appeal. If nothing else, Sovereignty 1 ensures that decision-making is not paralyzed by differences of opinion. The clear direction of this chapter has been towards greater co-determination founded on Sovereignty 3, not towards a reinforcement of Sovereignty 1, but, in moving in that direction, we must continue to attend to ways of fostering political agency.

Finally, the emphasis on personal political responsibility should stimulate reflection. Indigenous politics is sometimes criticized for being too personal, especially given the small size of many Indigenous societies and the role that familial relationships sometimes play in their governance.41 Those criticisms sometimes are well-taken. But Indigenous legal traditions also have means of holding people to their responsibilities—of combining, in other words, an emphatically personal responsibility with insistence on obligations to the community as a whole. It would be worth considering and building upon those mechanisms.

4.  Conclusion

What conclusions can we draw from this analysis for understanding Canada’s contending sovereignties?

Often when sovereignty is invoked by constitutional lawyers, one suspects that the implicit form they have in mind is Sovereignty 1. That is a great pity, for if Sovereignty 3 does express Indigenous aspirations better than Sovereignty 1, an exclusive focus on the latter is likely to divert us from the parties’ primary concerns. Moreover, Sovereignty 1 has the disadvantage of being all or nothing. It focuses our attention on who gets to win in the last analysis, distracting us from solutions that we might try short of that ever-receding horizon. And it encourages us to pick a single winner, distinguishing sharply between who gets to prevail and who does not. In a plural society, where one seeks to build institutions that are accepted as legitimate by all constituent groups, Sovereignty 1 is unhelpful, narrowing rather than broadening the foundations of constitutional (p. 298) legitimacy. It is no wonder, then, that constitutional actors have tended to avoid sovereignty if Sovereignty 1 is the only game in town.

As I have argued, however, the focus of Indigenous arguments is Sovereignty 3, not Sovereignty 1. They are not arguing for an ultimate and unconstrained decision-making power. They seek, as RCAP said, the right ‘to define, sustain and perpetuate their identities as individuals, communities and nations’.42 They attempt to order their lives by drawing upon their own peoples’ normative resources—their languages, their conceptual universe, their stories, their accounts of social interaction, their relationships to the land, their processes of memory, affirmation, correction, deliberation, and decision. This aspiration presupposes a substantial degree of autonomy, so that there are spheres in which Indigenous institutions and resources are able to be used, to be refined, and to flourish. Nevertheless, it does not exclude the possibility of collaboration as the Haida Gwaii Reconciliation Act makes clear. One can agree to disagree, work on the basis of one’s own authorities and jurisdictions, and still find grounds upon which to act together. We constitutional theorists often write as if a community can only be sustained if its members agree to a set of canonical principles. But much more often, we find ourselves living in community, and we then seek, over long spans of time, to develop principles and procedures to organize our lives together. These principles can be plural in their origins, drawing upon different traditions and speaking different normative languages. They need not be perfectly rationalized.

The model of the Haida Gwaii Reconciliation Act suggests that those communities can be sustained without answering the questions of Sovereignty 1, and that we are therefore free to concentrate on the interplay of Sovereignty 3s. But how realistic is that position? Doesn’t Sovereignty 1 always hover in the background, shaping the parties’ conduct? There may indeed be circumstances in which the grounds for cooperation break down so thoroughly that the only solution is to determine who has the ultimate say—although when that happens one wonders whether sovereignty can do much work. Sovereignty is about the entitlement to govern; it is a claim of right, not simply an exercise of force. If the grounds for justifying governmental arrangements have broken down so convincingly, I suspect that arguments of right will hold little sway.

Most of the time, however, our societies are not at that extremity. We are not in ‘the last analysis’ but are acting in a zone in which justificatory arguments do have an impact. That need not be because we are especially moral (though we should not discount that possibility). It may be because we realize the cost of simply imposing our position, and we therefore have little alternative but to rely upon arguments of justification. I noted above, for example, that theorists of Sovereignty 1 would generally consider that section 35 has not in any way constrained sovereignty. An absolute power of decision continues in the system as a whole, if necessary through the use of the amending formula. But if the only way to overturn an ostensible right is by constitutional amendment, and if constitutional amendments are too costly to pursue (because of the extent of political capital (p. 299) that must be expended, the potential for generating division within government, or, above all in the case of Indigenous rights, the cost in extreme disaffection if Indigenous rights are simply overrun), then the threat of constitutional amendment recedes into the background, a theoretical but not a practical option. Sovereignty 1 is bracketed by eminently practical concerns, and one is left with carrying on the debate within the more open territory of normative argument.

Sovereignty 1 is, in short, rarely a winning ploy, except in political orders in which there is already a substantial measure of consensus. In other situations, it is an argument appropriate only to the most extreme circumstances—and, when one is in such a situation, those who are on the receiving end of the decision are unlikely to see much difference between a claim of Sovereignty 1 and a threat of force. Most of the time, we operate in territory where Sovereignty 1 has little role to play.

Another way to state that argument is to draw on the work of theorists of law and government who emphasize that sovereignty is a relational concept.43 They argue that the power of a government to act depends, in substantial measure, on its ability to carry the population along with it. Only then will it secure the benefit of the population’s willing compliance with its laws. Only then will its soldiers and public servants invest their energies in the government’s cause. On this view, sovereignty is the people’s implicit authorization of the government to act on its behalf, an authorization that is always a work in progress. If that is true, then arguments for the justification of government are at the heart of sovereignty. The relevant form of sovereignty in most of its applications is Sovereignty 3.

This insight constructs the challenge of contending sovereignties in a distinctive form. It emphasizes the constructive dimension of sovereignty: its character as a work in progress. Moreover, in a complex, culturally-diverse polity such as Canada’s, the work of sovereignty must be integrative, actively seeking to build the allegiance of all its constituent peoples, fashioning the political community so that it can attract the willing adherence of its members. And that, of course, is very much the work of reconciliation as the Supreme Court of Canada has envisaged it.


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  • Asch, Michael, On Being Here to Stay: Treaties and Aboriginal Rights in Canada (U of Toronto Press 2014).
  • Barker, Joanne (ed), Sovereignty Matters: Locations of Contestation and Possibility in Indigenous Struggles for Self-Determination (U of Nebraska Press 2005).
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Professor and Dean, Faculty of Law, University of Victoria. My thanks to Catherine George, Maegan Hough, and Vivian Lee for their able research assistance, and to Robert Gibbs, Martin Loughlin, Patrick Macklem, Brad Morse, Val Napoleon, Peter Oliver, Heidi Kiiwetinepinesiik Stark, and Jim Tully for their astute comments on previous versions of this chapter.

1  Brian Slattery, ‘Understanding Aboriginal Rights’ (1987) 66 CBR 751; Jeremy Webber, ‘Relations of Force and Relations of Justice: The Emergence of Normative Community between Colonists and Aboriginal Peoples’ (1995) 33 Osgoode Hall LJ 623; Canada, Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, Volume 1: Looking Forward, Looking Back (Supply and Services Canada, 1996) 99–132; R v Van der Peet, [1996] 2 SCR 507 [42] (Lamer CJ).

2  R v White and Bob (1964) 50 DLR(2d) 613, aff’d [1965] SCR vi; Calder v British Columbia (Attorney-General) [1973] SCR 313.

3  The James Bay and Northern Quebec Agreement (Éditeur official, 1976).

4  For an overview, see Royal Commission above (n 1) especially 31–244 and, with respect to residential schools, Truth and Reconciliation Commission of Canada, Canada’s Residential Schools: The Final Report of the Truth and Reconciliation Commission of Canada (McGill-Queen’s UP 2015), vols 1–4.

5  Brian Slattery, ‘The Generative Structure of Aboriginal Rights’ (2007) 38 Supreme Court LR (2d) 595.

6  Joanne Barker, ‘For Whom Sovereignty Matters’ in Joanne Barker (ed), Sovereignty Matters: Locations of Contestation and Possibility in Indigenous Struggles for Self-Determination (U of Nebraska Press, 2005), 12–16; N Bruce Duthu, Shadow Nations: Tribal Sovereignty and the Limits of Legal Pluralism (OUP, 2013).

7  Douglas Cole and Ira Chaikin, An Iron Hand upon the People: The Law against the Potlatch on the Northwest Coast (Douglas & McIntyre, 1990).

8  See Jeremy Webber, ‘The Public-Law Dimension of Indigenous Property Rights’ in Nigel Bankes and Timo Koivurova (eds), The Proposed Nordic Saami Convention: National and International Dimensions of Indigenous Property Rights (Hart, 2013).

9  Bryan Schwartz, First Principles, Second Thoughts: Aboriginal Peoples, Constitutional Reform and Canadian Statecraft (Institute for Research on Public Policy, 1986); David C Hawkes, Aboriginal Peoples and Constitutional Reform: What Have We Learned? (Institute of Intergovernmental Relations, 1989); Jeremy Webber, Reimagining Canada: Language, Culture, Community and the Canadian Constitution (McGill-Queen’s, 1994), 122–125, 170–172; Peter Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People? (3rd edn, U of Toronto Press, 2004), ch 10–12.

10  Draft Legal Text: October 9, 1992, proposed section 35.1(1) to be enacted by section 29. For a full discussion of the Meech Lake and Charlottetown Accords, see Webber, above (n 9) 125–175; Russell, above (n 9) 127–227.

11  Draft Legal Text, above (n 9), proposed section 35.1(2).

12  Hodge v The Queen (1883) 9 App Cas 117; Maritime Bank of Canada (Liquidators of) v New Brunswick (Receiver-General) [1892] AC 437.

13  Canada, Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, Volume 2: Restructuring the Relationship (Supply and Services Canada, 1996), 228–232, 310 (quotation at 232).

14  Van der Peet above (n 1).

15  R v Pamajewon [1996] 2 SCR 821.

16  Delgamuukw v British Columbia [1997] 3 SCR 1010 [170–171].

17  [1990] 1 SCR 1075 [49]; Michael Asch and Patrick Macklem, ‘Aboriginal Rights and Canadian Sovereignty: An Essay on R v Sparrow’ (1991) 29 Alberta LR 498.

18  [1979] HCA 68 (Jacobs J at [3]).

19  Van der Peet (n 1) [31]; Delgamuukw (n 16) [186]; Haida Nation v British Columbia (Minister of Forests) [2004] 3 SCR 511 [17]; Taku River Tlingit First Nation v British Columbia (Project Assessment Director) [2004] 3 SCR 550 [42].

20  Haida Nation (n 19) [20].

21  See ibid [20] and [26]; Taku River (n 19) [24] and [42].

22  Mitchell v Canada (Minister of National Revenue) [2001] 1 SCR 911 [125–135].

23  SBC 2010, c 17.

24  Kunst’aa guu—Kunst’aayah Reconciliation Protocol (14 December 2009), online at http://www.llbc.leg.bc.ca/public/pubdocs/bcdocs2010/462194/haida_reconciliation_protocol.pdf.

25  See Jeremy Webber, The Constitution of Canada: A Contextual Analysis (Hart, 2015) 259–266.

26  Reference re Secession of Quebec [1998] 2 SCR 217.

27  See also Jeremy Webber, ‘We Are Still in the Age of Encounter: Section 35 and a Canada beyond Sovereignty’ in Patrick Macklem and Douglas Sanderson (eds), From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights (U of Toronto Press, 2016).

28  AV Dicey, Introduction to the Study of the Law of the Constitution (8th ed, Macmillan, 1915) 3–4.

29  See Sparrow above (n 17) [37].

30  Delgamuukw above (n 16) [168–169]; Tsilhqot’in Nation v British Columbia, 2014 SCC 44 [77].

31  Simon v The Queen [1985] 2 SCR 387 [33]; R v Sioui [1990] 1 SCR 1025, 1037–1043.

32  Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831).

33  See Royal Commission above (n 13) 109.

34  UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, art 3, UN Doc. A/RES/61/295 of 13 September 2007, on-line http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.

35  Royal Commission (n13) 105 and 107 (also 201–202). See also Heidi Kiiwetinepinesiik Stark, ‘Nenabozho’s Smart Berries: Rethinking Tribal Sovereignty and Accountability’ 2013 Michigan State LR 339, 342–344; Wallace Coffey and Rebecca Tsosie, ‘Rethinking the Tribal Sovereignty Doctrine: Cultural Sovereignty and the Collective Future of Indian Nations’ (2001) 12 Stanford Law and Policy R 191.

36  UN Declaration, above (n 34).

37  For an important discussion of the significance of treaties, see: Robert A Williams, Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600–1800 (OUP, 1997).

38  R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta [1982] 2 All ER 118 (CA).

39  Thomas Hobbes, Leviathan (Penguin, 1968) 227ff; Carl Schmitt, The Concept of the Political (Rutgers UP, 1976); Ulrich K Preuss, ‘Political Order and Democracy: Carl Schmitt and His Influence’ in Chantal Mouffe (ed), The Challenge of Carl Schmitt (Verso, 1999) 155.

40  See Jeremy Webber, ‘National Sovereignty, Migration, and the Tenuous Hold of International Legality: The Resurfacing (and Resubmersion?) of Carl Schmitt’ in Oliver Schmidtke and Saime Ozcurumez (eds), Of States, Rights, and Social Closure: Governing Migration and Citizenship (Palgrave Macmillan, 2008).

41  This is a principal theme of the Harvard Project on American Indian Economic Development. See, for example, Stephen Cornell and Joseph P Kalt, ‘Successful Economic Development and Heterogeneity of Government Form on American Indian Reservations’ Harvard Project PRS 95-4 (1995), online: http://www.hpaied.org/sites/default/files/publications/PRS95-4.pdf 9ff.

42  Royal Commission, above (n 35).

43  See Martin Loughlin, The Idea of Public Law (OUP, 2003) 72–98; Lon Fuller, The Morality of Law (rev’d ed, Yale UP 1964) 48.