Indigenous Constitutionalism Beyond Section 35 and Section 91(24): The Significance of First Nations Constitutions in Canadian Law

Abstract

First Nations communities in Canada have been drafting their own constitutions for many years, but these documents have not received significant attention from Canada's legal community. The constitutions written by First Nations communities raise many legal questions. This paper addresses three of those questions: (1) From what source do First Nations constitutions draw their legitimacy (Canadian legislation, the Canadian constitution, or an inherent Indigenous source)? (2) What aspects of Indigenous self-governance do they address? (3) How have Canadian courts treated them? This paper examines three Indigenous constitutions that are demonstrative of trends in Indigenous constitution-drafting to answer those three questions. The three example constitutions, judicial considerations of these documents, and jurisprudence about Indigenous self-governance reveal two conclusions. These constitutions are better tools than the Indian Act for governing relations between Indigenous peoples and the Canadian Crown. However, they run into many of the same issues that most attempts by First Nations communities have in their push for greater self-governance, since Canadian courts are only willing to show limited deference to these documents that purport to outline the fundamental principles of the communities who write them.