Peer-reviewed
La gouvernance autochtone avec ou sans la 'Charte Canadienne'?
The purpose of this article is to contribute to the doctrinal debate whether the Canadian Charter of Rights and Freedoms applies to aboriginal governmental institutions protected under section 35 of the Constitution Act, 1982. Is the Charter, as one important doctrine suggests, totally or substantially void against aboriginal governments acting according to existing aboriginal or treaty rights? Before addressing this legal problem from a technical standpoint, the author situates the issue in the broader perspective of relationships between good governance, fundamental rights and expression of distinct aboriginal culture. According to the author further thought should be given to the widespread tendency among lawyers to affirm that there is an inconsistency between the modern ideology of individual rights and freedoms and aboriginal culture?After an in-depth analysis of sections 32 to 35 of the Charter, the author rejects the absolute immunity thesis in favour of a more circumscribed immunity based not on aboriginal distinctiveness, as suggested by some, but on the principle of constitutional validation, a broad principle explicitly stated in section 25 of the Charter. According to Professor Otis, section 32 of the Charter formulates the fundamental principle of good governance that extends to aboriginal authorities, even though these authorities are not expressly mentioned in the provision. He furthers states that section 25 of the Charter only prohibits the use of the Charter so as to abrogate a constitutional right or to derogate from any of its essential elements. In fact, in most cases, applying the Charter to aboriginal governmental action under section 35 of the Constitution Act, 1982, will not result in abrogation of or derogation from existing aboriginal or treaty rights.The interpretation of sections 25 and 32 of the Canadian Charter as proposed in this article will make it possible, in many cases, to plead the Charter against aboriginal authorities exercising their right to autonomous government as recognized and affirmed under section 35 of the Constitution Act, 1982. Issues relating to constitutionally-protected rights and freedoms would thereby be part and parcel of tomorrow's aboriginal governance
Downloadable Article, 2005