The Jurisdiction of Inherent Right Aboriginal Governments
Kent McNeil |
Osgoode Hall Law School
The Canadian legal system has acknowledged that the Aboriginal peoples were sovereign nations prior to the arrival of Europeans in North America. Aboriginal governments have the authority under existing Canadian law to exercise jurisdiction. The essential point is that Aboriginal governments can become engaged on a government-to-government basis immediately. They have the authority to do so under existing Canadian law and do not have to seek permission to exercise their jurisdiction from the federal government, provincial governments, or Canadian courts.
While the full scope of Aboriginal jurisdiction remains uncertain, Canadian law does acknowledge that it is extensive enough to provide Aboriginal nations with real authority and substantial bargaining power in their dealings with the federal and provincial governments.
This authority does not depend on finalization of comprehensive agreements or treaties that define the rights of the Aboriginal nations and the jurisdiction of their governments. Other governments have to consult with them, on a government-to-government basis, whenever their claimed rights or interests might be negatively affected by policies or decisions of those governments.
Agreements can be negotiated between Aboriginal nations and other governments in relation to specific policies and projects, such as resource development on lands within those nations’ territories. Participation by Aboriginal governments in these negotiations would be an exercise of their jurisdiction, and could lead to financial benefits that would fund other government projects and programs within their communities.