Tansi Nîtôtemtik,
“[H]ow did the Crown acquire absolute sovereignty over Indigenous peoples? Was it through surrender following a conquest? … Did the Indigenous peoples simply cede all their rights in perpetuity because they were… “uneducated savages”? This does not hold up to even the most minimal scrutiny…”
– Joshua Nichols
Over the last three weeks, we have provided an overview of the historical trajectory of the topic of Indigenous governance. In the next two weeks, we will turn to look at topics in Inuit and Métis governance. In our intro post, “Intro to Indigenous Governance: Sovereignty vs Self-Determination vs Self-Governance”[1], we provided the basic idea behind each of the concepts of sovereignty, self-determination, and self-governance in order to lay the groundwork for our forthcoming discussions. We hope that over the last three weeks we have illustrated how the underlying beliefs behind these concepts have played a key role in Crown-Indigenous relations in the past and will continue to do so into the future as they are continuously navigated and redefined on the path to Reconciliation. As the years go on following the release of the TRC Report in 2015, Indigenous scholars are urging Canada to re-think presumptions regarding the constructs we use to define and limit Indigenous rights. In today’s post, we wrap up our historical review by both dialoguing with our intro post’s definition of sovereignty and highlighting how the University of Alberta Faculty of Law’s Joshua Nichols challenges the presumptions of Crown sovereignty in his article: “Sui Generis Sovereignties: The Relationship between Treaty Interpretation and Canadian Sovereignty”.[2]
Three weeks ago, our intro post defined sovereignty as the natural or inherent right to “define, sustain, and perpetuate identities” and as an “absolute power over people, land, water, and natural resources.”[3] As we have illustrated, early Crown-Indigenous relations demonstrated the Crown’s recognition of Indigenous sovereignty.[4] Despite the promise of these early recognitions, it is now clear that the Crown never intended to recognize the existence of any independent or sovereign status of the “Indians” with whom they made treaties and agreements.[5] In his article, Sui Generis Sovereignties, Joshua Nichols argues the theory of sovereignty in Canada is based on the Westphalian model which is that “absolute title to lands cannot exist at the same time in different persons or in different governments.”[6] The presumption of the Westphalian model determined the bounds of “what is natural and obvious and separates that from what is untenable and inconceivable. This same line remains fixed within the Canadian jurisprudence on treaty interpretation.”[7] On this basis, Nichols questions the presumption of Crown sovereignty and the ability of the Crown to assert the same over Indigenous Peoples in the first place.[8] He suggests that Crown absolute sovereignty is a “legal fiction” which was “unilaterally imposed over a pre-existing system of divisible sovereignty” and which has resulted in judges reading legal documents on the “assumption that absolute and unquestionable sovereignty was always in place.”[9] A contextual and historical inquiry calls into question this presumption and the ability of the Crown to assert sovereignty over Indigenous Peoples at all.[10] Nichols calls on the Supreme Court of Canada to “fully and explicitly reject the continued use of the doctrine of discovery via its unilateral, unquestioning and absolute interpretation of section 91(24),” saying that the “court must face the fact that this provision cannot be read as an unquestionable grant of absolute sovereignty due to the simple fact that the imperial Crown could not give the dominion what it did not have.”[11] Instead, it should be recognized that the Crown’s sovereignty is sui generis in nature and should be predicated on a “shared constitutional order that includes Aboriginal peoples as self-determining peoples.”[12] Recognition of the Crown’s sui generis sovereignty includes at a minimum that “section 91(24) is interpreted as a “treaty power” that continues the pre-existing power-sharing relationship between the imperial Crown and Aboriginal peoples, and, second, that sections 25 and 35 of the Constitution Act, 1982 serve to extend clear jurisdictional lines into the Canadian constitutional order…”[13]
This brief overview of Joshua Nichols’s article has sought to illustrate that while important progress has been made in recognizing and developing concepts around Indigenous sovereignty, self-determination, and self-governance, it is essential to also question the basic assumptions underlying these concepts in the first place.
Yours Truly,
Team ReconciliAction YEG
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[1] ReconciliAction YEG, “Intro to Indigenous Governance: Sovereignty vs Self-Determination vs Self-Governance” (20 January 2020), online (blog): Faculty of Law University of Alberta Faculty Blog <ualbertalaw.typepad.com/faculty/2020/01/intro-to-indigenous-governance-sovereignty-vs-self-determination-vs-self-governance.html>.
[2] Joshua Nichols, “Sui Generis Sovereignties: The Relationship between Treaty Interpretation and Canadian Sovereignty” in Oonagh E Fitzgerald, Valerie Hughes & Mark Jewett (eds) Reflections on Canada’s Past, Present and Future in International Law/Réflexions sur le passé; le présent et l’avenir du Canada en droit international (McGill-Queen’s University Press, CIGI Press, 2018) 131 [“Sui Generis Sovereignties”].
[3] Supra note 1.
[4] See ReconciliAction YEG, “The Royal Proclamation of 1763” (22 January 2020), online (blog): Faculty of Law University of Alberta Faculty Blog <ualbertalaw.typepad.com/faculty/2020/01/the-royal-proclamation-of-1763.html>; see also, ReconciliAction YEG, “Indigenous Sovereignty and the Treaties of Albany and Niagara”, online (blog): Faculty of Law University of Alberta Faculty Blog <ualbertalaw.typepad.com/faculty/2020/01/indigenous-sovereignty-and-the-treaties-of-albany-and-niagara.html>.
[5] Sui Generis Sovereignties, supra note 2 at 132.
[6] Ibid at 131.
[7] Ibid at 132.
[8] Ibid at 134-139.
[9] Ibid at 137.
[10] Ibid at 137-138.
[11] Ibid at 138.
[12] Ibid at 139.
[13] Nichols at 138-139.
