Reconciliation Beyond the Box

In this paper, we argue that meaningful implementation of the UN Declaration requires the state, and the courts, to move away from the Charter-like lens of the current constitutional framework of section 35 and move toward a jurisdictional division of powers with Indigenous peoples. [...] The court’s interpretation of the concept of Crown sovereignty determines the constitutional character whereas a of the relationship between the Crown and Indigenous peoples. [...] Reconciliation beyond the Box: The UN Declaration and Plurinational Federalism in Canada 9 existing social, legal and political practices of Indigenous peoples were now legally significant within the constitutional order of the settler-state.41 In Sparrow, the court was faced with the task of interpreting section 35 of the Constitution Act, 1982.42 This was not simply a new constitutional provisio [...] It is difficult to adequately describe the features of this parallel system, but a rough and ready comparison can be made between it and the more familiar constitutional concept of the “state of emergency.” Like a state of emergency, the Indian Act and its assemblage of institutional and administrative mechanisms blurred the lines of the constitutional order. [...] In Chief Mountain,59 Justice David C. Harris found that it was unnecessary to determine the source of self-government rights because at between least one party to the agreement had the necessary capacity and authority to delegate powers to the other.60 Simply put, the fact that the Crown could Indigenous and delegate the governance powers in the Nisga’a Final Agreement meant that the courts could