When the Constitution Act was passed on April 17, 1982, it gave constitutional protection to "existing aboriginal rights" in Section 35, without specifying what those rights were. The question is, what rights "existed" on that date? Most commentators and jurists assume that the word is an empty box waiting to be filled in by political negotiations, but Bruce Clark, with a radically original reading of Canadian constitutional history, argues that the box is not empty at all, and that in the most objective and technical sense, it includes the right to self-government.
His argument is ultimately based on the Royal Proclamation of 1763. Meant to establish British sovereignty over the unexplored interior of the continent and at the same time to protect a fragile military alliance with the powerful tribes by promising them the King's eternal protection, the Proclamation stated that "the several Nations or Tribes of Indians...should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them".
On the face of it, this means that on unceded land (much of Canada), First Nations are fully protected from non native intrusions, whether commercial or legal. But the key question is whether or not the Proclamation is still the law of the land.
The common view of Canadian constitutional development is that each major document - the British North America Act of 1867, the Statute of Westminster of 1931 and the Canada Act of 1982 - represented a new beginning, superseding the prior regime. But Clark argues forcefully that each of these documents built on the prior structure - in particular that each one "saved" the protections for aboriginal peoples given under the Royal Proclamation. This was explicitly stated by Lord Denning in a binding decision of the British Court of Appeal in 1982.
Following and elaborating on comments by then Chief Justice Brian Dickson in 1985, Clark argues that the colonial governments were created by the British Crown as subordinate governments, not as sovereign ones, with power to legislate only in certain clearly defined areas. Part II of the Royal Proclamation actually constituted these colonial governments, while Part IV marked the limits of their powers, especially placing unceded native lands outside of their control. Thus, aboriginal rights were guaranteed directly by the Crown.
These guarantees were binding on colonial governments, which quite simply had not been invested by the Crown with sufficient legal power to abrogate them. The same, he argues, is true of the federal government formed in 1867, which also had carefully delineated jurisdictions, not full sovereignty.
Until 1931, the only body with legal power to extinguish those rights was the British Parliament, and it never did so. It did, however, limit the Proclamation rights by enacting laws in 1803 and 1821 which established colonial jurisdiction over serious crimes committed in the Indian territories. As a result, the right to self government that Clark argues is already part of Canadian law only applies to civil law, not to criminal law.
Some would argue that under the 1931 Statute of Westminster the federal government also acquired the power to extinguish Proclamation rights. Clark disagrees, but points out that even if it could have, it never explicitly did so. The 1982 Constitution could, of course, have abrogated the then existing aboriginal rights, but it did just the opposite: it entrenched them. As a result, they can now be altered only by constitutional amendment.
Of course, these conclusions have enormous implications. "For constitutional purposes," says Clark, "it means that the native nations are on a par with the federal and provincial governments, which can no more legally encroach upon the natives' existing constitutional jurisdiction than they can on each other's." Clark believes that independent civil jurisdiction is what most natives mean by "sovereignty" - not full sovereignty as an independent nation, but "domestic sovereignty" - full civil jurisdiction over their own affairs.
The implication is that First Nations need not be negotiating for the right to self-government, but should be fighting to have their existing right acknowledged. "The Indians will never again be in as a strong a bargaining position as they were in 200 years ago," says Clark, "and nothing they could ever negotiate today will be as good as what they already have. There's no way they will ever again drive a bargain as effective as the one 200 years ago when they won the Royal Proclamation."