The application of the Canadian Charter of Rights and Freedoms to First Nations' jurisdiction

• Main Author: Rafoss, William Mayo
• Other Authors: Story, Donald C.
• Format: Thesis
• Language: English
• Published: University of Saskatchewan 2005
• Subjects: Charter of Rights; First Nations; Canada
• Online Access: http://hdl.handle.net/10388/etd-09022005-102932

This thesis examines the discourse surrounding the debate over whether the Canadian Charter of Rights and Freedoms ought to apply to First Nations’ governments in Canada. This is a constitutional and legal grey area at present because Section 32 of the Canadian Charter of Rights and Freedoms stipulates that this constitutional document applies to the federal, provincial and territorial governments, but does not mention Aboriginal governments. The lack of constitutional clarity on this issue has generated a debate involving three schools of thought. The first school proposes that the Charter ought to apply to First Nations’ governments just as it does to other governments in Canada. The second school of thought argues that the Charter should not apply to First Nations’ governments because it is an imposition of western liberal values on their governments that could limit their self-governing authority. Proponents of this view assert that recognition of Aboriginal and treaty rights in the Constitution should entitle First Nations to develop their own rights practices, consistent with Aboriginal laws and customs. A third school of thought suggests that there may be alternatives between accepting the Charter as it is and rejecting it altogether. Two options have been advocated by this school. One option is for the Charter to apply with a caveat that it be done in a manner that is consonant with traditional Aboriginal laws and customs. The other option is that a parallel Aboriginal Charter of Rights and Freedoms be developed that better reflects Aboriginal traditions on rights. While this debate has been ongoing, the Government of Canada and some First Nations have entered into self-governing agreements that acknowledge the application of the Canadian Charter to those particular governments. This thesis concludes that there is no easy resolution to the debate, that it may take the courts to resolve the issue in law, and this outcome itself may be unsatisfactory to First Nations’ communities.