Reconciling the Constitutional Order: Positing a New Approach to the Development of Indigenous Self-Government and Indigenous Law
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In light of the recognition of continuing Indigenous sovereignty by the Supreme Court of Canada and the requirement that that sovereignty and de facto Crown sovereignty be reconciled within a shared constitutional order, Canada needs a new approach to negotiating the exercise of Indigenous sovereignty. Any new approach must be built around a coherent understanding of the Constitution as a whole, most importantly the constitutional principle of reconciliation and the other unwritten principles articulated by the Supreme Court of Canada in the Reference re. Secession of Quebec. The four unwritten principles which the Supreme Court of Canada identified in the Quebec Secession Reference do not represent a barrier to the exercise of Indigenous sovereignty, if interpreted in light of the reconciliation principle. Indeed, the principles of federalism and the protection of minorities support the protection of distinct Indigenous political and legal institutions. Because they are exercising a continuing sovereignty, rather than an aboriginal right as that term is currently understood under section 35, Indigenous peoples also need not return to traditional forms of governance in their entirety in a modern self-government regime; they may also adopt more or less of the Euro-Canadian forms with which they have become familiar as citizens of Canada, such that modern Indigenous institutions could be quite consistent with mainstream understandings of the four unwritten principles of the Constitutions. As with other institutions of governance, Indigenous peoples have long traditions of dispute resolution that they could draw upon in the context of the modern exercise of their sovereignty. Nor do Indigenous peoples need to return to these traditional methods in their entirety, either; again, they could adopt elements of Euro-Canadian legal traditions. There are numerous precedents around the world for Indigenous legal institutions that combine elements of Indigenous customs of dispute resolution and common-law judicial structures. What is important is that Indigenous peoples have the right to design their own institutions for the interpretation, as well as the creation, of law and the resolution of disputes if they are to exercise their sovereignty within the Canadian constitutional and political system as a third order of government.