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Treatied Democracy

Here we explore the fundamental idea that Canada is not a constitutional monarchy, as the Confederation story and the folks in Ottawa and the provincial capitals would have us believe, but, in fact, a treatied democracy.

The story of Canada as a constitutional monarchy has its roots in the British constitutional tradition. When the British North Americans set up shop in Canada in the nineteenth century, and claimed all of Canada for themselves, they chose to overlook the First Nations as they outlined their constitutional claims.

The idea that Canada is a treatied democracy recognizes the foundational role and legal status of Indigenous Peoples in the Canadian consitutional story.

The Sources of Constitution Law in Canada

There is probably no better place to begin this discussion than with the work of Peter Hogg, described, by the law firm where he is scholar in residence, as "Canada's leading constitutional law scholar".1 We will be consulting his Constitutional Law of Canada (2016 student edition.)2

Here, we will offer a single quote from that book. It occurs in the opening discussion on the "rules of reception" regarding how Canada acquired its legal systems.

"The account which follows will not pursue the complex issue of the survival of aboriginal customary law, but will simply attempt to trace the reception of English and French law into British North America."3

At this juncture Hogg offers a footnote to Slattery's "Aboriginal Sovereignty and Imperial Claims", as if to suggest that this would be an appropriate avenue to pursue the topic of the "survival of aboriginal customary law" in Canada. So we will take up Professor Hogg's suggestion.

Survival of Aboriginal Customary Law

Brian Slattery has written extensively, along with other scholars, of course, on the legal issues surrounding the question of the survival of aboriginal customary law.4 So Slattery's writings, as Hogg suggests, will provide a useful counterpoint to the discussion we trace beginning with Hogg.

Specifically, we will begin the detour into aboriginal customary law where Hogg suggests, with Slattery's piece Aboriginal Sovereignty and Imperial Claims.5

TreatyPeople.ca

Here, at DemocracysKitchen.ca we are exploring the relationship between the colonial project, called Canada, primarily since Confederation, and Indigenous Peoples, from the colonial side of that relationship. That is, from the colonial side of the treaty table where the Canadian state claims to be a constitutional monarchy and representative democracy.

Our sister site, TreatyPeople.ca explores that same relationship but attempts to do so more from the Indigenous side of the treaty table. The goal there is to understand the treaty foundation of Canada from the Indigenous understandings of such relationships.

  1. Blakes Law Firm | Lawyer Peter W. Hogg, Toronto. The student edition, while slimmer and cheaper, is missing some possibly crucial chapters for our concerns. Specifically missing are such chapters on "The Crown", "Treaties", "Citizenship", "Natural Resources" and "Taxation" which may prove interesting to our discussion, depending, of course, on what those chapters consider. ↩︎
  2. Here is a reference to the 2015 edition Constitutional Law of Canada: 2015 Student Edition: Peter W. Hogg: 9780779866885: Books - Amazon.ca ↩︎
  3. Hogg, 2016, pg. 2-2. ↩︎
  4. Here is a listing of the selected works of Brian Slattery: SelectedWorks - Brian Slattery ↩︎
  5. This essay can be found Osgood Law School's digital commons site: "Aboriginal Sovereignty and Imperial Claims" by Brian Slattery ↩︎