Native Liberty, Crown Sovereignty: The Existing Aboriginal Right of Self-Government in Canada

Christopher English is a history lecturer at the Memorial University of
Newfoundland and a recent law-school graduate.

The title of this widely researched, up-to-date, and persuasively argued
study says it all: Prerogative legislation (the Crown speaking through
the imperial Privy Council), constitutional common-law precedents of the
eighteenth and nineteenth centuries, and imperial statute (the Crown
speaking through the imperial Parliament) recognized and guaranteed that
the British Crown’s jurisdiction did not extend to unceded aboriginal
lands. Never abrogated by the imperial Parliament, these agreements were
in place at Confederation in 1867, and continued in force when the
Constitution Act, 1982, entrenched “existing aboriginal and treaty
rights.” The latter stretch as far back as the Royal Proclamation of
1763 and, guaranteed in the Constitution, comprise the highest law of
the land.

Since aboriginal lands (which were never ceded to the Crown) could not
be passed on to the federal or provincial governments who succeeded to
the powers of Great Britain in Canada from 1867, they remain intact
today and lie outside the claims (in civil as opposed to criminal law)
of federal or provincial jurisdiction. For Clark there simply is no
constitutional issue here, and for either government to argue that
aboriginal jurisdiction in unceded lands has been superseded by
government action and the failure of Natives to protect such claims in
the past is bad law. It is also bad politics because constitutional
litigation obscures and makes more difficult a resolution of the basic
challenge: to find a compromise that will provide the financial
resources for the aboriginal peoples to assume a dignified place in
contemporary Canada.

In the long, difficult, and expensive course of trying to resolve the
issue of aboriginal land claims, it is not the law that has been at
fault, but the law’s misintepretation and misapplication. In this
respect, the Supreme Court of Canada decision in the current Bear Island
appeal (which the author argues was wrongly decided by the lower courts)
will be crucial.

Clearly this is an important book. While it is a creditable attempt to
appeal beyond the legal community, the incidence of undefined legal
terms and the pages of close legal reasoning on the big cases will
challenge the lay reader. One hopes that a shower of copies will descend
upon policy and decision-makers at both levels of government.