(1993-94) 19:1 Queen's Law Journal 95-136
When the Supreme Court decided Sparrow, it could have interpreted s. 35 of the Constitution to give Aboriginal peoples absolute power over Aboriginal and treaty rights, a power which neither Parliament nor the Provinces could trump. Instead, the Court interpreted s. 35 to mean that Parliament could still infringe Aboriginal rights if the infringement could be justified by a strict test. Professor McNeil suggests that this interpretation does not originate in the constitutional text so much as in the British constitutional concepts of Parliamentary sovereignty and the rule of law. He argues that the Court maintained Parliament's power to regulate Aboriginal rights because it combined these constitutional concepts with an assumption that these rights are not effectively regulated by Aboriginal governments and laws. The Court's unarticulated fear was that an intolerable legal vacuum would be created if s. 35 was interpreted as excluding all federal regulatory power. The author argues, however, that to decolonize Canadian constitutional law, we must redefine Parliamentary sovereignty and the rule of law to include Aboriginal governments and laws, which could fill the constitutional space that s. 35 provided and avoid the vacuum that the Court feared.
Kent McNeil, “Envisaging Constitutional Space for Aboriginal Governments” (1993-94) 19:1 Queen's Law Journal 95-136.