Critical Collaborations: Indigeneity, Diaspora, and Ecology in Canadian Literary Studies

Trans-Systemic Constitutionalism in Indigenous Law and Knowledge

49 TRANS-SYSTEMIC CONSTITUTIONALISM IN INDIGENOUS LAW AND KNOWLEDGE Sa’ke’j Henderson Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty, and to define Aboriginal rights guaranteed by s. 35 of the Constitution Act, 1982. —Chief Justice McLachlin, Haida Nation (2004) My essay will explore the trans-systemic synthesis of the Supreme Court of Canada’s (hereafter Court) constitutional framework of Canada that is in the process of being advanced as a transformative method to protect Aboriginal peoples and generate constitutional reconciliations. The subject is crucial, and its importance is daunting not only for the development of a legal system that can bring justice to Aboriginal rights and treaty rights but also for any scholarly project that seeks to understand Indigenous knowledge and cultures in the context of Canada. In its cautious, case-by-case approach, the Court has generated innovative methods and principles to displace colonialism and racism in the law according to its constitutional mandate. These principles inform institutional change, peoplehood, and citizenship in Canada, and embody both conceptual and practical arrangements. These principles can be a model for other Eurocentric disciplines and scholars. Before I provide some necessary context for my argument here, I should disclose that, as one of the Aboriginal drafters and negotiators of Aboriginal and treaty rights, and as someone who has been involved in the various litigation designs in relation to Aboriginal rights, I have more than a non-aligned interest in how the courts should interpret this constitutional framework. 50 Sa’ke’j Henderson Context After a long and difficult struggle to implement treaty rights and recognize Aboriginal rights in both the political forum and the courts, the United Kingdom ’s Parliament repatriated Aboriginal and treaty rights. Through the Canada Act 1982, the imperial Crown in Parliament transferred these rights from imperial law to the constitutional law of Canada, vesting them in the Aboriginal peoples of Canada. Section 35 of the Constitution Act 1982, which is part of the Canada Act 1982, elegantly summarizes the catalytic transformation of an old truth: “The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.” Section 25 of the Canadian Charter of Rights and Freedoms affirms that existing Aboriginal and treaty rights, as well as other rights and freedoms that pertain to them, cannot be as construed as being abrogated or derogated by the Charter’s rights and freedoms. These sections reflect the imperative to constitutionally accommodate , recognize, and implement Aboriginal and treaty rights. They also require reconciliation with other constitutional powers. These constitutional clauses were not a new statement of rights; they merely affirmed pre-existing Aboriginal sovereignty through the asserted British sovereign rights and the more than three hundred imperial treaties that established the original constitutional order, and now the postcolonial constitutional order, of Canada. The affirmation of these rights reflects the constitutional commitment to shape a new order guaranteeing Aboriginal peoples’ effective enjoyment of constitutional rights, both collectively and individually. Thus the patriated Constitution that directs Canadian life locates the shared or overlapping sovereignty of Canada in the First Nations and the imperial Crown. The leaders of the constitutional movement were the First Nations Elders and the first generation of First Nations peoples educated in the Eurocentric systems in Canada (Cardinal; Barsh and Henderson; Mercredi and Turpel). This trans-generational alliance used Aboriginal world views and legal traditions , as well as Eurocentric strategies and persuasion, to accomplish the art of the impossible by affirming Aboriginal and treaty rights over the objections of the provinces. The various peoples of Canada did not merely craft the constitutional vision as a collaborative enterprise; this enterprise generated new and needed institutional forms of the patriated society and life. The Court in Sparrow held that as part of the supreme law of Canada, which is embodied in fragmented imperial treaties and acts, s. 35 specifically directs and mandates recognition and affirmation of existing Aboriginal and treaty rights at every level of Canadian society. This has created new contexts for the honourable interpretation of governmental responsibility and treaty rights in Canada. Trans-Systemic Constitutionalism in Indigenous Law and Knowledge 51 Canadian politicians and Canadians in general were (are) taken aback by these constitutional reforms and the transformations they made necessary. Superimposing a vision of constitutionalism on people’s consciousness is a difficult and complicated task, especially if some of them have never shared that vision. The...