Canadian and Aboriginal sovereignty and the Supreme Court

It is a fact that Aboriginal sovereignty of Indigenous Nations existed before British North America and Canada. Where did it go? Sovereignty cannot be taken from nations: It can only be given up by them. In Canada, Indigenous Nations never gave up sovereignty, never ceded, surrendered. Indeed, the treaties that define Canada were negotiated with sovereign Indigenous Nations, and Canada's sovereignty, thus, relies on Aboriginal sovereignty.

Reconciling Sovereignties: Aboriginal Nations and Canada by Felix Hoehn

Reconciling pre-existing Aboriginal sovereignty with de facto Crown sovereignty will not threaten the territory of Canada, nor will it result in a legal vacuum. Rather, it will facilitate the self-determination of Aboriginal peoples within Canada and strengthen Canada’s claim to territorial integrity in the eyes of international law.

In Reconciling Sovereignties, Felix Hoehn presents a persuasive case that the once unquestioned and uncritical acceptance of the Crown’s assertion of sovereignty over Aboriginal peoples and their territories is now being replaced by an emerging paradigm that recognizes the equality of Aboriginal and settler peoples and requires these peoples to negotiate how they will share sovereignty in Canada.

Hoehn concludes that the Supreme Court of Canada has taken us to the threshold of a new paradigm for Aboriginal law that (a) rejects the doctrines of discovery and terra nullius, (b) accepts that Aboriginal sovereignty continues, and (c) holds that only treaties can elevate the Crown from de facto sovereignty to a de jure sovereignty that is shared with Aboriginal peoples. The sovereignty paradigm will provide needed answers to the pressing moral and practical crises that plague the old paradigm, and it holds the greatest promise for reconciliation. The text is current to William v. British Columbia (BCCA), June 27, 2012.