Weaponizing Federalism for Settler Colonialism:

Canadian Court (Mis-)Use of Federalist Principles Against Indigenous Jurisdiction

Abstract

Canadian scholars and political thinkers have long contemplated how federalism might be used to enhance and foster legal pluralism and respect for diversity. Yet, as argued here, Canadian courts often work to deny Indigenous legal jurisdiction by leveraging constitutional principles associated with federalism. This article traces what might be called the “weaponization” of federalism to deny Indigenous jurisdiction in four parts. First, I outline the theory and legal importance of federalism as it relates to Indigenous sovereignty. Second, in using the framework of “jurispathy,” I discuss how Canadian courts deny recognizing the independent existence of Indigenous laws, even when it is in the pleadings before them and relevant to the trier-of-fact. Third, I explore how the Supreme Court of Canada, in the 2024 Dickson v. Vuntut Gwitchin First Nation decision, denied the validity of Indigenous constitutionalism, and in turn suggested that Indigenous self-governance is, at least partially, an emanation of Canadian government jurisdiction. Finally, courts have upheld a paternalistic account of section 91(24) of the Constitution Act, 1867, which allocates “Indians and lands reserved for Indians” to the federal government. This is despite the fact that, when taking into account the Royal Proclamation of 1763 and the Treaty of Niagara, there is basis to re-interpret section 91(24) not as jurisdiction over a peoples, but a duty and responsibility to them (as opposed to over them).