Tema: |
Fédéralisme, federalism, aboriginal rights, droits ancestraux, identité, identity, constitutionalism, treaty federalism, organic constitution |
Descripción: |
The author outlines a new legal approach, which he labels federal constitutionalism, to the
question of aboriginal difference in Canada. This approach has the potential to open up more
fruitful avenues for the resolution of aboriginal law issues than either the “frozen rights”
approach currently adopted by the Supreme Court of Canada or the treaty federalism
approach, which posits that treaties should be used to resolve all differences between aboriginals
and non-aboriginals. The author outlines the difficulties inherent in both the frozen rights and
treaty federalism approaches. Federal constitutionalism, in contrast, draws its vitality from an
organic understanding of Canada’s constitutional experience. It would allow aboriginal
peoples to be seen as federal actors who have historically shaped the Canadian federation.
Federal constitutionalism is a multi-faceted approach that would permit aboriginal questions
to be addressed using the federal principle, thereby allowing the legal focus to move away from
section 35 of the Constitution Act, 1982. Aboriginal peoples would be able to exercise the
rights of sovereignty over their own internal affairs, while individual aboriginals could
participate directly in federal and provincial governments without having to proceed through
the intermediary of aboriginal representatives. Federal constitutionalism would allow
aboriginal peoples a guaranteed sphere of autonomy, while permitting recognition of their
historical interdependence with non-aboriginal peoples. |