Indigenous Self-Government and Criminal Law: The Path Towards Concurrent Jurisdiction in Canada

Abstract

This is a special contribution that has not been peer-reviewed. The past few decades have seen an increase in culturally responsive policies and programs aimed at ameliorating the hardship and disadvantage faced by Indigenous peoples in the Canadian criminal justice system. These policies and programs, however, operate within a criminal justice system that consistently fails Indigenous peoples. What has yet to be tried is a nation-to-nation approach to criminal law jurisdiction where Indigenous peoples have legislative authority to enact and administer their own criminal laws. This paper shows that Indigenous jurisdiction over criminal law is possible within Canada’s constitutional framework. In Part I, I outline the current state of Indigenous self-government over criminal law. Although initiatives such as sentencing circles and Indigenous courts allow Indigenous peoples to exercise greater self-government over the administration of justice, they still do not exercise true criminal law-making authority. In Part II, I analyze existing discussions about separate Indigenous justice systems and identify a framework for how concurrent jurisdiction over criminal law can be exercised. In Part III, I draw on the doctrine of cooperative federalism to argue that Indigenous jurisdiction over criminal law can coexist with the federal government’s jurisdiction over criminal law. Lastly, in Part IV, I discuss four ways Indigenous nations can attain jurisdiction over criminal law: (1) a constitutional amendment; (2) a self-government agreement; (3) a claim under section 35 of the Constitution Act, 1982; and (4) federal legislation. While a constitutional amendment is the preferable solution, I argue that federal legislation informed by Indigenous peoples is the best alternative