Inherent Rights to Self-Government and Constitutional Authority
Recent agreements between Métis governments and Canada recognize the Métis Nation’s inherent right to self-government.
Speaker: Dr. Paul Simard Smith, University of Regina
Time: 3:30- 5:00 pm
Location: ESB 112
Abstract:
Recent agreements between Métis governments and Canada recognize the Métis Nation’s inherent right to self-government. However, this recognition raises the question: what is the nature of this inherent right? In particular, what kind of jurisdiction is associated with it? We argue that – from a conceptual and ethical standpoint – the powers associated with this right ought to be regarded as inherent, not delegated by the Crown, and as including constitutional authority with respect to the Constitution of Canada. We develop this case in several stages. First, we provide a conceptual analysis of the inherent right to self-government; highlighting that the proper understanding of this concept favors a view in which its jurisdiction is not delegated by the Crown. Moreover, pairing this notion of the inherent right with a conceptual analysis of the notion of constitutional authority we show that, in the Canadian context, the powers associated with the inherent right should include a fair measure of constitutional authority. Next, we draw on the Métis self-government agreements as a case study to further discuss our conceptions of the inherent right. We note that there are provisions within the agreements that appear to recognize the constitutional authority of Métis Governments, and adequately respect the inherent right to self-government. However, there are also clauses that could be used to deny the constitutional authority of Métis governments and recognize only a nominal right to self-government in which the powers associated with this right are fully delegated. Ultimately, legislatures, courts, and citizens – both those of the Métis Nation and Canada – are approaching a crossroads in which a path between these different options must be determined. We close by making a political and ethical argument for regarding the inherent right as associated with inherent non-delegated jurisdiction that includes constitutional authority in the Canadian legal order.