The Aboriginal Right to Self-Government and the Canadian Constitution: The Ghost in the Machine
![handle is hein.journals/ubclr29 and id is 261 raw text is: THE ABORIGINAL RIGHT TO SELF-GOVERNMENT
AND THE CANADIAN CONSTITUTION:
THE GHOST IN THE MACHINE
PETER W. HUTCHINSt
vith
CAROL HILLING and DAVID SCHULZE
And the fact that the questions are difficult to answer does not mean that the
aboriginal right of self-government does not exist. All it means is that this
world contains many questions that are difficult to answer.
I. INTRODUCTION
If indeed a constitution is a mirror reflecting the national soulz
perhaps an understanding of the inherent right to aboriginal self-
government within the Canadian context requires not only consti-
tutional parsing but some collective soul-searching about the past
roots and the contemporary branches of the living tree that is our
constitution.3
There is an example of judicial soul-searching in the landmark deci-
sion Mabo v. Queenslana4 where the Australian High Court finally laid
t This paper is the product of the work and reflection over a number of years of members of my
firm Hutchins, Soroka & Dionne. In addition to Carol Hilling, Diane Soroka and David
Schulze, who collaborated substantially in the research and writing of the paper, I would like to
acknowledge and thank Anjali Choksi for her review and comments and David Kalmakofffor his
research and editorial assistance. I assume entire responsibility for any errors or omissions. I
disclose, as well, that I have acted as counsel for the First Nations parties in a number of the legal
proceedings referred to in this paper.
© Hutchins, Soroka & Dionne, 1995.
I Ddgamuukw v. British Columbia (1993), 1o4 D.L.R (4th) 47o (B.C.C.A.) at 717, Lambert J.A.
[hereinafter Delgamuukw].
2 R I. Cheffins and R N. Tucker, The Constitutional Process in Canada (Toronto: McGraw-Hill
Ryerson, 1976) at 4.
3 W. R. Lederman expressed a similar view about the division of powers in his article, Unity and
Diversity in Canadian Federalism: Ideals and Methods of Moderation (1975) 53 Can. Bar Rev.
597 at 6oo:
It is a mistake to think that the task of interpretation is grammatical and syntactical only,
treating the constitution document in isolation from the economic, social and cultural facts of
life of the society to which the constitutional document relates, both historically and
currently. Yet this has frequently been done in Canada.
4 (1992), 107 A.LR i (H.C.) [hereinafter Mabo].](ViewImageLocal?handle=hein.journals/ubclr29&div=19&collection=journals&method=preview&ext=.png&size=3)
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The Aboriginal Right to Self-Government and the Canadian Constitution: The Ghost in the Machine
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