In today’s paper the Calgary Herald laments that when it comes to the pipeline debate in Canada, Indigenous people, including Mohawk Kanesatake Grand Chief Serge Simon, have the audacity to assert an Indigenous order of government (“Oil-fighting Chief loses credibility”). It’s the Calgary Herald that lacks credibility, not the Grand Chief.
The question of whether Indigenous Peoples have jurisdiction to exercise governmental, decision-making authority was canvassed by the British Columbia Supreme Court in 2000 based on the provincial Liberal party’s challenge to the Nisga'a treaty. The Liberals argued the treaty was invalid because the Nisga’a had no independent legal authority to make a treaty with the federal and provincial governments.
The Court disagreed and in doing so came to fundamental conclusions important to all Indigenous Peoples. The Court held that Indigenous Peoples’ law-making authority pre-dates the arrival of Europeans, survived the assertion of Crown of sovereignty and is now likely protected by s. 35 of the Constitution.
According to the Court, it is a fallacy to assume that all law-making authority stems from the Constitution. Rather, the Constitution divides up the Crown’s jurisdiction. Indigenous jurisdiction exists independent of the Constitution.
Contrary to what the Calgary Herald may wish, it is not a question of whether Indigenous Peoples’ jurisdiction exists. The real question, and a pressing issue for all Canadians, is how to create space within the Canadian legal and political system to recognize and respect Indigenous law-making authority.
Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.
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