ABSTRACT
In this chapter, I examine the treatment of Indigenous law and law-making in the context of Canada’s recognition of self-government as an inherent right under section 35 of the Constitution Act, 1982, particularly the extent to which the inherent right policy permits the recuperation of Indigenous legal orders and recognition of their place within federalism. The first section of the chapter sets out the subject of my inquiry, namely Indigenous legal orders, not just singular instances of Indigenous law-making. I then examine the doctrine of continuity, pursuant to which Indigenous law-making power has survived into the 21st century. I next set out the self-government policy of Canada and examples of “self-government”, which are really just exercises in delegating legislative power for administrative purposes. Finally, I offer suggestions for matters to address as a priority, so that Indigenous law-making will be able to flourish as part of the “living tree” that is the Canadian Constitution.
