Mackiem: Distributing Sovereignty

Historically Canada denied the legal existence of First Nations sovereignty independent of delegated authority. Although a province cannot intrude on federal jurisdiction or conflict with existing federal law, a province, generally speaking, can require Aboriginal people to obey many of its legislative dictates.

Parliament and provincial legislatures are subject to section 35 of the Constitution Act 1982 which provides that 'existing aboriginal and treaty rights are...recognised and affirmed'. Section 25 also constitutionalists rights enjoyed by Aboriginal people at common law as incidents of Aboriginal title. In R v Sparrow the Supreme Court of Canada ruled that activities integral to an indigenous community's cultural and physical survival such as fishing, constitute Aboriginal rights. If an Aboriginal right existed as of 1982 any law that unduly or unreasonably interferes with its exercise must meet strict standards of justification. The law must possess a 'valid legislative objective' and any allocation of priorities after implementing measures that secure the law's objective must be give top priority to Aboriginal interests. The court indicated that in future cases it may require the least possible infringement of Aboriginal rights necessary to effect the desired result, as well as compensation. The Canadian constitution thus protects a core set of Aboriginal interests from unwarranted state intrusion and subjects laws that interfere with those interests to searching judicial scrutiny.

Canadian Federal Law dictates the legal form of Indian government by creating "bands" out of Indian communities and establishing the 'band council' as the basic unit of Indian governance. The Act also sets out rules governing membership and Indian status as well as requirements for council elections. It defines the scope of band council authority and its relationship to federal authorities. Band councils resemble municipal corporations, exercising authority delegated from Parliament. They have the authority to pass local bylaws.

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