You Can't Have it Both Ways: Why the Courts Must Recognize the Right of Self-Government as Included in Section 35 of the Constitution Act, 1982

Let us start at the beginning — what makes a right a right? Your rights are really only rights if they serve to protect activities that you want to engage in. If you want to say something controversial in public, the constitutional guarantee of freedom of expression allows you to do that, as it is your right to. If you were a hermit, though, and never saw anyone else who you could say something to, the fact that freedom of expression is a constitutional right would be irrelevant. Freedom of expression would not, thus, really be a right to you.

Individual rights, like freedom of expression, are easy to implement; you get to decide for yourself if you want to do something that is protected by a right or not and then you do it or not. You have the complete authority to make the decision on whether to do something that is rights-protected or not and are only accountable to yourself for the consequences of your decision.

However, Canadian courts have told us since at least Sparrow (and Delgamuukw in the case of Aboriginal title) that Aboriginal rights are collective rights, not individual rights.[1] Exercising collective rights is rather more complicated than exercising individual rights, as collective rights are held by a group. For the group to exercise its collective rights, the group must decide whether and how to engage in the activities that are rights-protected. Groups, of course, are made up of individuals, and individuals often have different opinions; indeed, a group that is always ad idem and never has to resolve differences of opinion among members of the group is likely unheard of.

For a group, like an Indigenous nation, to decide whether and how it should exercise its collective rights and to have the decision accepted by the members of the group, the group has to establish a process, or processes, to decide what the group wants to do. Inevitably, discussion will need to be a part of any such process, either by the group as a whole or by those entrusted by the group to act as their representatives, if the individuals in the group are to see the ultimate decision about exercising the group’s rights as legitimate. Without such a decision-making process, the group has no way to determine whether or not it should engage in rights-protected activities, so it cannot exercise its collective rights. As I said above, a right that is never exercised to protect an activity a person or group wants to engage in, or cannot even be exercised, is not actually a right at all.

The processes that must be part of collective decision-making about whether a group wishes to engage in rights-protected activity and, if so, how to do so sounds, to me at least, suspiciously like governance processes. Thus, an Indigenous collective, such as a Nation or a First Nations band, that has collective rights must also have the right to design and implement governance processes to allow the collective to determine how to exercise its collective rights; in other words, if Aboriginal rights are collective rights, Indigenous nations must also, inherently, have the right of self-government, too.

Yet, despite the fact that the Supreme Court of Canada has declared that Aboriginal rights are collective rights, the Court has never explicitly, conclusively recognized that self-government is an Aboriginal right protected by section 35 of the Constitution Act, 1982. The farthest the Court has ever gone is to say, in effect, that self-government may be an Aboriginal right, but it does not have to decide that, so it will not. For example, at paragraph 24 of his judgement in R v Pamajewon, Lamer CJ stated, “Assuming without deciding that s. 35(1) includes self-government claims …”[2] Similarly, Binnie J, at paragraph 165 of Mitchell v MNR stated, “…I do not wish to be taken as either foreclosing or endorsing any position on the compatibility or incompatibility of internal self-governing institutions of First Nations with Crown sovereignty, either past or present.”[3] Given the logical impossibility of Aboriginal rights being collective rights, as the Supreme Court of Canada tells us, but Indigenous collectives not having a constitutionally-affirmed right to establish and operate structures and processes that would allow them to determine how to exercise those collective rights, otherwise known as the right to self-government, I think it is high time the Supreme Court of Canada admitted that you cannot have one without the other.

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Ian Peach is a New Brunswick-based constitutional scholar and practitioner with many decades of experience.

[1] R v Sparrow, [1990] 1 SCR 1075; Delgamuukw v British Columbia, [1997] 3 SCR 1010.

[2] R v Pamajewon, [1996] 2 SCR 821.

[3] Mitchell v MNR, [2001] 1 SCR 911.