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Indigenous Jurisdiction


Introduction:


Due to a web-surfer’s ability to land on almost any page of a website, there is no one starting place for a multi-page topic such as colonization. It also annoying to be on a website that repeats the basics on every page. So, if you landed on this page first, this is the prime page to have landed on to dig into colonization. There are a few words that we should define so we are all on the same page. They are:


One of the important things about colonizing is that we all have some part of our thinking colonized. Because of that, without knowing, we actually project that part of us that is colonized out onto other people so that they fit into our understanding of how the world should be. Not realizing what we are doing is wrong, does not justify our actions especially when the person we are doing it to asks us to stop and respect their way of thinking. This is the trap most well-intentioned Canadians, even many Indigenous people in Canada, find themselves in.


In an effort to avoid doing the same thing within the colonizing section of the website, we will give both the Indigenous and Crown perspectives on something to contrast which is which. The discussion on sovereignty, authority and jurisdiction is well suited for this approach.


Sovereignty:


1. Indigenous Sovereignty:


We believe Indigenous Peoples should speak for themselves in defining their sovereignty. It will therefore suffice to say that they are sovereign and their sovereignty predates the Crown in Canada. In words from the Report of the Royal Commission on Aboriginal Peoples (1996):

“Sovereignty, in the words of one brief, is ‘the original freedom conferred to our people by the Creator rather than a temporal power.’ As a gift from the Creator, sovereignty can neither be given nor taken away, nor can its basic terms be negotiated. This view is shared by many Aboriginal people, whose political traditions are infused with a deep sense of spirituality and a sense of the inter-connectedness of all things. Such concepts as sovereignty, self-government and the land, which for some Canadians have largely secular definitions, all retain a spiritual dimension in contemporary Aboriginal thinking.”5


We know Indigenous sovereignty is nation-based and that the definition of nation includes communities with elders, citizens, councils, and leaders plus other dimensions that can be spiritual, regional, temporal, and etc. So, the definition of sovereignty is interspersed with all these facets of nation and community.


While we leave defining Indigenous sovereignty to others, the definition will contain the equivalent of the Crown’s sovereignty. In that, where Indigenous sovereignty lies, so too do  rights, authority, jurisdiction, and the power to delegate those.


2. Crown Sovereignty:


In a simplistic view, Canada is a federal constitutional monarchy, with the Crown at its head. The Crown is:

Sovereign;

Legally entitled;

Has complete authority and delegates authority to groups or organizations; and,

Has total jurisdiction, giving limited jurisdiction when it delegates its authority.


The Crown’s sovereignty rests with the monarchy in Europe. Extending the British Crown’s sovereignty over new territory, such as Canada, could only occur by one of four ways recognized by European powers:

1. Inheritance;

2. Conquest;

3. Purchase; or,

4. Occupation/Settlement.


Of course, Canada was populated by Indigenous Peoples and their nations at the time of ‘discovery,’ so there was no inheritance, conquest, or purchase. To extend sovereignty, the Doctrine of Discovery was used to remove Indigenous sovereignty and title allowing Terra Nullius to open the land for British occupation and settlement. Once British citizens and settlements were legally present in Canada, the Crown had a right to ‘assume sovereignty’ over them and the land they were on.


This ‘assumed sovereignty’ is the basis of the Crown’s rights in Canada.


Authority:


All nations and their governments must work within lines of authority. Rights are grounded in sovereignty. The authority to act on those rights rests in the sovereign person or group who holds those rights.


1. Indigenous Authority:


Indigenous rights are grounded in Indigenous sovereignty which is held by the community, community-based rights-holders. The community can delegated its authority to engage with the Crown but the authority that is delegated is not done so permanently. In this regard, the recipient of the authority must bring the engagement issue back to the community for discussion, guidance, and ratification before a further delegation of authority on the issue. This process should not be misconstrued as consultation or meaningful consultation of community-based rights-holders, it is the process of Indigenous authority delegation.

 

Indigenous authority generally flows bottom-up from the community. The community delegates authority to its leaders to engage, but it does not delegate its final decision-making authority. Final decisions generally rest with the community.


2. Crown Authority:


The Crown’s right in Canada is grounded in assumed sovereignty derived from the Doctrine of Discovery. The distribution of the Crown’s right and authority in Canada is detailed in the Constitution Act. Authority over Indigenous Peoples and Indigenous lands was given to the federal government through section 91(24). The authority was allocated into a bureaucratic department and its Minister. That department is currently Indigenous and Northern Affairs Canada (INAC). However, INAC is transitioning into two federal departments, Indigenous Services Canada and Crown-Indigenous Relations and Northern Affairs Canada.


The federal government has not devolved, permanently delegated, its section 91(24) authority over Indigenous Peoples and Indigenous land to provincial governments, territorial governments, or third party interests (corporations, partners, other groups, or individuals). In areas where provinces have legislated authority, the constitutional duty to consult and accommodate extends to the province.6


The Crown can delegate its authority to, among other things, engage in consultation. However, recipient third parties,7 including municipal governments8 and other Crown partners, do not have a duty to consult and accommodate without that delegation.


The Crown’s authority flows ‘top-down’ from the Crown. The Crown delegates authority to a department, committee, working group, team, or some other functional group to engage with Indigenous Peoples, but it does not delegate its decision-making authority. Final decisions rest with the Minister or senior department officials.


Jurisdiction:


Jurisdiction is the sphere of activity over which authority extends. Jurisdiction can either be inherent or delegated.9


1. Crown Jurisdiction:


The Crown assumed sovereignty through the Doctrine of Discovery and delegated its authority over Indigenous Peoples to the federal government through section 91(24). That Crown Jurisdiction extends over all Indigenous traditional territories, resources, and peoples in Canada.


2. Indigenous Jurisdiction:


Indigenous Peoples are also sovereign. Sovereignty over land was given to them by the Creator and predates the Crown in Canada. The Inherent Jurisdiction of that authority extends over their communities (peoples) and their traditional territories (land and resources).


3. Jurisdictional Conflict:


Both Indigenous sovereignty and Crown-assumed sovereignty claim jurisdiction over Indigenous communities and land, through ‘Inherent Jurisdiction’ and ‘Crown Jurisdiction’ respectively. There is a continuous battle in Canada between Inherent and Crown Jurisdictions to see which will own and direct existing and developing Indigenous cultural, social, political, and economic institutions in Canada. However, the Doctrine of Discovery allows Crown Jurisdiction to replace Inherent Jurisdiction.


4. Inherent Jurisdiction:


Indigenous Jurisdiction generally does not have its decision making delegated due to the communal nature of Indigenous sovereignty. It is inherent.


The Inherent Jurisdiction of Indigenous governments arises from the existence of Indigenous Nations in North America prior to the arrival of Europeans; from pre-existing sovereignty.10 From an Indigenous perspective, Inherent Jurisdiction is the Indigenous governance expression of Immemorial rights over traditional territories (land and resources) and communities (societal institutions and people).


5. Delegated Jurisdiction:


All Crown authority in Canada was delegated. The Government of Canada also delegates Crown authority and jurisdiction to organizations to empower them to function as part of Canada’s infrastructure (Crown corporations, health and education authorities, environmental assessment boards, human rights commissions, and etc.). When the Crown delegates authority, with it comes the sphere over which the jurisdiction of that authority extends. The Crown’s authority replaces all other authority (jurisdictions) within the sphere of authority creating a Crown-Delegated Jurisdiction.


a. Crown-Delegated Jurisdiction:


These Crown-Delegated Jurisdictions are created through varied combinations of legislation, signed agreements, and funding contributions. They give authority to a group or organization to engage in a defined activity. The use of the Crown’s authority in the organization is  controlled by terms laid out in the legislation, bilateral agreements, and contribution agreements that were used to create the Crown-Delegated Jurisdiction. But be clear, these organizations become an extension of the Crown and its government in Canada.


b. Assimilation:


The Crown creates Crown-Delegated Jurisdictions with authority over Indigenous lands, resources, or peoples through section 91(24) of the Constitution Act. Indigenous communities and organizations often exercise authority that has been delegated to them by the Crown. To receive Crown-delegated authority, changes are mandated within the Indigenous organization replacing laws, policies, and practices previously used by the organization under the authority of Indigenous sovereignty.11 The new Crown-Delegated Jurisdiction in the Indigenous organization replaces its Inherent Jurisdiction counterpart to effectively assimilate the sovereign Indigenous version of the organization. The resulting indigenous organization no longer retains its Immemorial rights base. The Crown’s ability to do this comes from the Doctrine of Discovery which gives assumed sovereignty and Crown rights higher authority than Indigenous sovereignty and Immemorial rights.


If left to run its course, the Crown’s continued delegation of jurisdiction will completely replace pre-existing Indigenous governance and its Inherent Jurisdictions.

“Many First Nations maintain that any form of delegated authority is inconsistent with an inherent right of self-government.12


For more on the role of Crown-Delegated Jurisdiction in modern Indigenous assimilation, please go to the Crown-Delegated Jurisdictions replacing Indigenous Jurisdictions page.



1. Oxford Dictionary. https://en.oxforddictionaries.com/definition/sovereignty/ Accessed 2018-02-22.

2. Oxford Dictionary. https://en.oxforddictionaries.com/definition/right  Accessed 2018-02-22.

3. Oxford Dictionary. https://en.oxforddictionaries.com/definition/authority  Accessed 2018-02-22.

4. Oxford Dictionary. https://en.oxforddictionaries.com/definition/jurisdiction  Accessed 2018-02-22.

5. (1996) Report of the Royal Commission on Aboriginal Peoples. Volume 2: Restructuring the Relationship. Part One: 3. Governance. 1. Aboriginal Perspectives, 1.1 Basic Concepts. Canada Communication Group — Publishing, Ottawa, Ontario K1A 0S9. http://caid.ca/RRCAP2.3.pdf

6.  Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511, at para 59. http://caid.ca/HaidaDec010208.pdf

“The answer to this argument is that the Provinces took their interest in land subject to “any Interest other than that of the Province in the same” (s. 109). The duty to consult and accommodate here at issue is grounded in the assertion of Crown sovereignty which pre-dated the Union. It follows that the Province took the lands subject to this duty.” [Emphasis Added]

7. Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511, 2004 SCC 73, at para 53. http://caid.ca/HaidaDec010208.pdf

The Crown alone remains legally responsible for the consequences of its actions and interactions with third parties, that affect Aboriginal interests. The Crown may delegate procedural aspects of consultation to industry proponents seeking a particular development; this is not infrequently done in environmental assessments.…. However, the ultimate legal responsibility for consultation and accommodation rests with the Crown. The honour of the Crown cannot be delegated.” [Emphasis Added]

8. (2014) Imai, S. & Stacey, A., Municipalities and the Duty to Consult Aboriginal Peoples: A Case Comment on Neskonlith Indian Band v. Salmon Arm (City). UBC Law Review 47(1): 293-312, p.296. http://caid.ca/MunDutConAboPeo2014.pdf

“Based on Haida Nation and Rio Tinto, the Court of Appeal concluded that municipalities lack the authority to engage in the complex constitutional process to consult, as the Province had not expressly delegated such powers.”

9. (2007) McNeil, K., The Jurisdiction of Inherent Right Aboriginal Governments. Research Paper for the National centre for First Nations Governance. http://caid.ca/JurofIngRig2007.pdf

10. (2007) McNeil, K., The Jurisdiction of Inherent Right Aboriginal Governments. Research Paper for the National centre for First Nations Governance, p3. http://caid.ca/JurofIngRig2007.pdf

The inherent jurisdiction of Aboriginal governments is jurisdiction arising from the existence of the Aboriginal nations in North America prior to the arrival of the Europeans. Aboriginal nations who are also Indian bands under the Indian Act exercise delegated jurisdiction as well, jurisdiction that has been conferred on them and their band councils by the provisions of that Act.” [Emphasis Added]

11. (2003) McNeil, Kent. "Challenging Legislative Infringements of the Inherent Aboriginal Right of Self-Government." Windsor Yearbook of Access to Justice 22: 329-361. http://caid.ca/ChaLegInfInhAbo2003.pdf

12. (1999) Wherrett, J., Aboriginal Self-Government. Library of Parliament, Parliamentary Research Branch, Current Issue Review: 96.2E. http://caid.ca/AboSelGovPRB1999.pdf

“However, many First Nations maintain that any form of delegated authority is inconsistent with an inherent right of self-government. Inuit have pursued self-government through public government arrangements in the north in conjunction with land claims, while the Métis have advanced various claims for land and self-government.” [Emphasis Added]



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Last Updated October 15, 2018