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Opportunity for renewing treaty federalism, recognizing Canada’s legal pluralism, part two – OKT

Courts have ruled that Indian Act governments are subject to the Charter; however, they operate under delegated authority. The exercise of inherent power is distinct. Neither the Crown nor any of its laws — including the Constitution and Charter — are the source of inherent rights; they merely recognize them. (On the application of the Charter to Indian Act, RSC 1985, c I-5 governments, see Taypotat v. Taypotat  013 FCA 192 at para. 39.)

Indigenous laws are external to Canadian jurisprudence and — absent the Indigenous government’s agreement — the Charter should not apply to their internal laws. Particularly not in a manner that is both automatic and which risks rendering the Indigenous nations’ own constitution and highest law null and void.

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