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Indigenous Sovereignty: The Constitution Act, 1867

POWERS OF THE PARLIAMENT

Legislative Authority of Parliament of Canada

91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

. . .

24. Indians, and Lands reserved for the Indians.

The Constitution Act, 1867 (UK), 30 & 31 Victoria, c 3

"The Constitution Act, 1867 can be said to be an ahistorical document, in that it makes no mention of earlier conditions out of which the union emerged. . . . Section 91(24) has been uniformly thought by legislators and the judiciary to assert unilateral dominion over Indians and lands reserved for Indians, an interpretation that conforms with the Constitution Act's ahistorical division of all legislative sovereignty within the dominion into either the federal or provincial sphere. . . . Yet nowhere in the Constitution Act, 1867 does it actually state that the Canadian state enjoys sovereignty over its indigenous population. The assumption that the Canadian state does enjoy sovereignty over its indigenous poplulation justifies . . . interpreting s. 91(24) as authorizing Parliament to pass laws governing its indigenous population absent consent of that population. If one removes the underlying assumption of Canadian sovereignty over native people . . . s. 91(24) could just as easily be read as . . . simply providing that, as between Parliament and provincial legislatures, Parliament has the exclusive authority to negotiate with Canada's indigenous population . . ." (509-510).

Asch, Michael and Patrick Macklem. "Aboriginal Rights and Canadian Sovereignty: An Essay on R. v. Sparrow." Alberta Law Review, vol. XXIX, no. 2, 1991, pp. 498-517.