The right of Indian self-government in Canada
While it might be desirable to amend the constitution of Canada to acknowledge the distinctiveness of Indian society as an aid to construction of instruments, it is unnecessary to amend the constitution in order to add a substantive right of Indian self-government. That right is already entrenched as an existing aboriginal right within the meaning of section 35 of the Constitution Act, 1982. The right was constituted by prerogative legislation in the eighteenth century, and has since been reiterated in the statutes of the imperial government which also established the corresponding constitutional powers of the federal and provincial governments. As originally constituted and since perpetuated the right has meant that federal and provincial governments may not legally encroach upon the Indians' jurisdiction to govern their own civil affairs. But neither are the federal and provincial governments under any express or necessarily implied constitutional obligation financially to support Indian governments. Furthermore the Indian right is plenary, in that it applies to civil affairs generally, rather than to a delegated set of enumerated powers. Although the basis for the right was not the common law, the only basis consistent with current federal policy is as if it were common law. That policy presumes that if ever the Indian right had existed it has been superseded historically by actions of federal and provincial governments inconsistent with it. However, the thesis here suggests that since the imperial legislation which actually constituted the right and subsequently reiterated it has never been repealed, such supersession is a legal impossibility. Because it is basic to federal policy the supersession idea nevertheless dominates the current approach to law reform and the negotiation process, which proceeds upon the assumption that the municipal form of self-government on offer, with its delegated enumerated powers to carry out local works, is at least something where nothing exists at the present time. The Indian need to secure financial support renders insisting upon the application of existing law seem politically counterproductive, although it need not be so.