Image via Wikimedia Commons.

If Justin Trudeau is still Prime Minister on November 4, 2025, he will mark his tenth anniversary in office, joining his father along with John A. Macdonald, Wilfrid Laurier, Mackenzie King and Jean Chrétien in the exclusive ten-years club. All those other prime ministers had a historic impact on Canada. Can the same be said of Justin Trudeau?

The lifework of Macdonald, Laurier and King was the establishment of the Canadian state and its journey from the status of a British self-governing colony to independence and world influence. Trudeau the Elder and Chrétien’s names will be forever associated with major constitutional reform and winning two referendums on the sovereignty of Quebec. Has Trudeau the Younger accomplished anything of a constitutional nature which would give him similar stature in Canadian history?

I would argue that in at least one area and in a more low-key and less spectacular fashion, he has. The transformation of Canadian Aboriginal law under his government is much more than an extension of the past.

In the greatest U-turn in Canadian constitutional history, his father constitutionalized Aboriginal rights in 1982 after having proposed their suppression in 1969. Since 1982, judicial activism has been as pronounced in the enforcement of that new mandate as it has been for the individual rights protected by the Charter of Rights.

These are two distinct areas of constitutional law because the section of the Constitution guaranteeing Aboriginal rights is not part of the Charter,¹ and because by nature Aboriginal rights are collective rights, a concept that was initially abhorrent to Pierre Trudeau’s ideology. Justin Trudeau has not only embraced that collective nature but also directly inspired the expansion of Aboriginal rights in ways not contemplated by the framers of either the initial Canadian Constitution of 1867 or the modernized Constitution of 1982. This expansion has now reached the point of beginning a restructuring of the Canadian state. This is a more fundamental process than simply trying to correct the many injustices of the past. The Canadian state has entered a new, much deeper, phase of Aboriginal law where it is now attempting to counter its own colonial nature.

This process may be considered humanist and laudable, and a significant Canadian contribution to the advancement of universal human rights. Notably, however, the Canadian people know next to nothing about it, and it is taking place without any formal change to the Constitution. It involves a fundamentally different political and legal reading of Aboriginal rights, a historic rethinking of the Canadian legal imagination. In this way, Justin Trudeau has not only added to his father’s legacy but carved one entirely his own.

He has also pushed to new heights his father’s disdain for constitutional bargaining, and unilaterally effected major constitutional change that will gradually, significantly and increasingly weaken provincial autonomy. Not only has he not sought provincial consent to this restructuring, but he has also silently gone about it with little democratic debate. In this manner, he has proven to be at least as elitist as and even less forthright about his intentions than his father, who was accused, at least in Quebec, of achieving formal constitutional reform through deceit based on a political philosophy that the moral end justified the deplorable means.

If Trudeau the Elder was Canada 2.0, Justin is clearly Canada 3.0 in both Aboriginal and constitutional law. Indeed, he has made the traditional distinction between those two major areas of the law antiquated and largely irrelevant. This constitutional sleight-of-hand for ostensibly noble purposes is the Trudeau dynasty trademark, but on a level Justin’s father did not achieve.

The uncomfortable matter of Aboriginal rights

French colonizers never recognized Aboriginal rights within their legal system, regarding them instead as a matter of foreign relations with allies or vassal nations. The Treaty of Paris of early 1763, which made the British Conquest final, said nothing about the rights of Indigenous peoples. Indigenous peoples in Michigan and Ontario rebelled under the leadership of Pontiac, who had been an ally of the French. To appease Pontiac, the British government issued the Royal Proclamation of late 1763, the first major legal instrument of the new constitutional regime. The Proclamation recognized, for the first time, Aboriginal rights within the legal system of a European colonizing state in the Americas.

The Royal Proclamation remains a foundational part of the Constitution of Canada to this day, and was expressly preserved by the Constitution Act of 1982. It is what makes the Canadian state legally colonial. It is also a radical departure from British law applying in the U.K., although it became an important element of British imperial law.

For over two centuries, Aboriginal rights were honoured in the breach. British, and later Canadian, colonizers paid lip service to these rights to satisfy the Royal Proclamation. The Proclamation stated that Aboriginal rights could only be surrendered to the Crown, never sold to individual settlers, and that Canadian occupation of Indigenous land could only be made legal through domestic treaties. The result was an initiative to obtain the surrender of Aboriginal rights, derived from immemorial occupation, through such treaties. This was deemed necessary to legally gain access by the state and European settlers to vast areas of Canadian territory and its natural resources, including western wheat and oil.

Historic treaties (“numbered” treaties), concluded between the late 18th and the early 20th century, covered Ontario and the Prairies. These treaties were fraudulent. They were deemed legally necessary to make non-Indigenous occupation a product of fictional Indigenous consent. They dispossessed Indigenous people who could not read or write and had no legal counsel of vast lands and countless wealth for derisory pseudo-compensation. In any civilized legal system such disparity between the parties would make any such agreements null and void. They were, and remain, a massive violation of human rights.

Those treaties are applied to this day. The Canadian legal system has not yet reached the point of putting them in question, but it undoubtedly and inevitably will at some point, with major economic and political consequences.

The territories that became the provinces of Quebec and British Columbia, with the multigenerational concurrence of British and federal jurists, long claimed that they were exempt from the Royal Proclamation and never even bothered to sign fraudulent treaties. Canada’s highest court eventually decided, with respect to B.C., that the Proclamation applied in the entire country and, with respect to Quebec, that under current Canadian law Aboriginal rights could only be abolished explicitly. This meant they were considered to have been dormant under the French and reactivated by the British, although no one knew this until the Supreme Court said so centuries later. Unlike other areas of the law, Canadian Aboriginal law is routinely applied retroactively under today’s more exacting legal standards. Canadian legal history is constantly being rewritten backwards, and this extraordinary process, which can be called judicial decolonizing, appears to be gaining speed in the 21st century.

Colonial treaty making came to a stop in the 1920s. These immoral treaties closely tracked settlement and, even more, the expansion of natural resource extraction. The Indian Act served as a necessary adjunct to provincial laws on natural resources, which could only be effective, it was thought then, if the Indigenous question had found its final solution: forced removal into tiny reserves. Indigenous occupation of land was seen as a major impediment to provincial ownership of, and exclusive legislative power over, public lands, a major feature of the Constitution Act of 1867.

Canadian Aboriginal law is the poor relation of Canadian natural resource law. To this day, there is no greater structural racism in federal and provincial legislation, which still largely ignores both international and constitutional guarantees of Aboriginal land rights. This is what the current federal government’s initiatives begin to put into question.

After numbered treaty-making stopped, the very existence of Aboriginal rights was challenged. The Indian Act was gradually made more flexible starting in 1951, but the federal and provincial governments of the time took the position that further treaty-making was unnecessary. Major natural resource extraction projects, such as the first dams built by Hydro-Quebec in the 1950s and 1960s on the North Shore of the St. Lawrence on Innu lands where no treaty existed, were undertaken in complete disregard of Aboriginal rights with the concurrence of the federal Department of Indian Affairs.

In 1969, one year after he took power and named Jean Chrétien to the Indian Affairs portfolio, Trudeau the Elder’s government issued an infamous White Paper on Aboriginal rights, or rather the lack thereof.² Claiming that a just society could no longer accept systemic discrimination, it stated that Aboriginal rights were a quaint leftover from Canada’s past. With a nod at Quebec, it dismissed the notion of collective rights as abhorrent to a modern Western society.

The solution proposed was the end of the Indian Act and of reserves, followed by the integration of Indigenous people under provincial law without, it was expected, discrimination and without, it was emphatically announced, federal protection. The federal government was getting out of its uncomfortable Indigenous business without any intention of correcting the innumerable injustices of Canada’s past, present or future.

First Nations and the Canadian judicial system had other ideas. First, the scale and intensity of the protests from Indigenous groups and communities across the country soon led Trudeau to withdraw his White Paper. He did this with disdain by declaring that Indians could keep their ghettos. His government announced a fundamental rethinking of its Indian policy.

Meanwhile, an even greater blow came from the Supreme Court of Canada. In a historic decision in early 1973, the Court held that Aboriginal rights still existed and had full legal value, because the Royal Proclamation still applied and had constitutional significance.³ A few months later, the federal government reversed course and announced its intention to negotiate new modern treaties. Aboriginal rights, however, remained subject to unilateral federal suppression until they were constitutionalized under the Constitution Act of 1982. Section 35 of that act, which is not part of the Charter of Rights, was light-years away from Trudeau the Elder’s initial position 13 years earlier.

The first modern treaty under the new federal policy was the James Bay Agreement of 1975, which covers two thirds of Quebec’s land mass, almost one million square kilometres.⁴ It is the only treaty signed by a provincial government and one of its entities, Hydro-Quebec. It binds three of the eleven Indigenous nations recognized by Quebec’s National Assembly: the Cree, the Inuit of Nunavik and the Naskapi.

The James Bay Treaty was made necessary for three reasons. First, technology had reached northern Quebec and Premier Robert Bourassa had made building huge dams on the rivers leading to James Bay the centrepiece of his political program. Second, the Supreme Court’s 1973 decision had transformed the legal landscape.

Third, when Laurier added northern Quebec to provincial territory, the federal government had inserted a unique clause in its legislation that put the onus on the province to obtain the surrender of Aboriginal land rights. This was still, after all, the period of fictitious treaty-making. Quebec ignored that clause as long as the northern two thirds of the province remained inaccessible to white Quebecers. It was rediscovered, much to the dismay of Quebec jurists, in 1973. The Aboriginal land rights clause was then worth hundreds of millions of dollars – billions when the James Bay Agreement was amended in 2001.

The main purpose of treaties made by Canada with First Nations remains the surrender of Aboriginal land rights, specified in section 2.1 of the James Bay Agreement. It is the prototype of all the treaties signed by the federal Crown with First Nations in B.C., Yukon, the Northwest Territories and Nunavut since then.

Treaties remain to be negotiated with other First Nations in B.C. and Quebec, some of which have refused to do so if Ottawa continues to insist on surrender of what they consider fundamental human rights. Justin Trudeau has promised alternatives, but so far none seem to have emerged.⁵

Enter Justin Trudeau

Trudeau the Younger’s specific contribution is derived from an unprecedented convergence between an entirely new reading of section 35 of the Constitution Act of 1982 and emerging international law relating to Indigenous peoples. This convergence has now been taken up by the Supreme Court and can be expected to lead to structural changes in the Canadian state, including the creation of a third order of government by judicial fiat at provincial expense. This undemocratic process of major informal constitutional amendment through the judicial process was beyond the constitutional pale in the recent past. It is now underway.

In this major historical change, Justin Trudeau has not only named the judges, in the Supreme Court and lower federal courts, who are making this change in the law and constitutional interpretation, but caused Parliament to adopt crucial legislation to accelerate the process. He has also aggressively used federal power over Indigenous affairs granted in the 1867 Constitution to make a third order of government possible and to elevate Indigenous laws to the level of federal legislation, giving them primacy over provincial laws.

All of this, which is more than enough to cause alarm in some provincial capitals, came about outside the democratic process. The ultimate targets of this new judicial dynamic will be provincial ownership and exclusive power over natural resources, as well as the validity of the numbered fraudulent treaties that are the legal basis for the existence of the Canadian state over half its land base.

Section 35 protects the Aboriginal and treaty rights existing in 1982 from incompatible federal and provincial legislation. Treaty rights were then limited, since the era of modern treaties had barely begun and numbered treaties were not taken seriously in most cases. The real issue was the extent of Aboriginal rights, which remained largely undetermined. In a series of major cases, the Supreme Court set out to define them.

What was left out of the judicial process until 2024 was the Aboriginal right of self-government, which logically is a precondition for the exercise of all other Aboriginal rights. The reason it was not contemplated by the courts was the consensus among elites, including Indigenous elites, that such a fundamental restructuring of the Constitution was beyond the capacity of the Supreme Court. Until the advent of the Justin Trudeau government, it was felt that such a restructuring could happen only if the Constitution was reopened to negotiation – that is to say never.

Indigenous government was seen in 1982 as the most pressing constitutional business left over from patriation. The Constitution Act itself promised three further conferences to find ways to include it in the Constitution.⁶ This was an admission by Indigenous representatives themselves that section 35 was not sufficient to include Indigenous self-government, a view that was widely shared at the time. Those three constitutional conferences were held, and their failure created a major constitutional impasse at a time when the Supreme Court was busy reinforcing those Aboriginal rights that had been protected by section 35.

Simultaneously, the attention of the country was turned to the Meech Lake Accord, which tried to address the matter of Quebec by recognizing it as a distinct society. This created such understandable frustration among Indigenous peoples at the failure of the Canadian state to accommodate their priorities that an Indigenous member of the Manitoba legislature helped sink the Accord.

Another attempt was made to accommodate both Quebec and First Nations in the Charlottetown Accord, which was rejected by Quebecers and Canadians in parallel referendums in 1992. The negative majorities were decisive although not overwhelming. In constitutional parlance, there was a relatively clear question and an undeniably clear result. The effect was that there were no longer two solitudes in Canada: there were three.

This is when some legal writers began to suggest that what had always been intellectually possible could be judicially achieved: go around the formal constitutional amending process, which had proved inadequate after many good-faith efforts, and ask the courts to include self-government among Aboriginal rights.⁷ In the 1990s this marginal view was still political anathema, but it would grow over the years.

In 1990 the Oka crisis, just after Meech failed, led Brian Mulroney’s federal government to establish the Royal Commission on Aboriginal Peoples (the Erasmus-Dussault Commission). This commission’s very substantial report, issued in 1996 when Jean Chrétien was in power and the country was still reeling from the effects of the almost-tied result of the second Quebec sovereignty referendum, was shelved on the day it was issued because it contained some novel ideas that were then still unacceptable to the major parties in Ottawa. Among them was the idea that self-government had been protected by section 35 since 1982.⁸ Only in 2024 would the Supreme Court begin to accept this idea after Justin Trudeau gave it a significant prompting in 2021.

The UN sends a message

In 2007, another milestone was reached when, after decades of discussion, the United Nations General Assembly finally adopted the Declaration on the Rights of Indigenous Peoples.⁹ This Declaration has similar legal value to the Universal Declaration of Human Rights, to which Canada proudly contributed in 1948. Legal scholars see it as a fourth-generation extension of human rights that finally reached the most oppressed peoples on the planet.

The 2007 Declaration, however, creates an uneasy tension between universal and specific rights. In addition to universal rights against discrimination, it affirms the Indigenous right of self-determination, which is very largely congruent with the Canadian concept of self-government in domestic law. It also affirms Aboriginal land rights that clearly go beyond existing Canadian law. Moreover, these land rights are racially based, a concept that the Western world has almost universally rejected since the European Enlightenment and especially since the Holocaust.

For these reasons, plus the challenge the Declaration represented to to the numbered treaties and the natural resource sector that has always been at the heart of the Canadian economy, Canada was one of only four countries that voted against the Declaration. The other three holdouts were all beneficiaries of the British colonial empire that feared a resurgence of Aboriginal rights in their internal legal systems: the United States, Australia and New Zealand. Notably, South American and African countries, also the product of colonization, supported the Declaration, and some have made important constitutional changes in accordance with it.

Canada’s position was unsustainable in the long run. A strong supporter of the UN and international law generally, it was proud to be a middle-power state with a nearly flawless record in defence of human rights. It always wished to be a shining example to the world. Even the Conservative government of Stephen Harper felt the pressure. It tried to confuse the issue by accepting the Declaration with many reservations, which rendered its official consent meaningless.

At the same time, Australia and New Zealand, which also felt intense international and Indigenous lobbying, reversed their position and ratified the Declaration unconditionally. Only the United States, a nationalistic superpower whose view of international law is more suspicious than Canada’s and whose domestic Aboriginal law is a world of its own which contains the good, the bad and the ugly, remains apart. Canada, not being such a superpower, had to give in at some point.

It did so immediately after Justin Trudeau came to power in 2015. A new generation of Liberals, different from Dad’s and Uncle Jean’s, was in town. These were 21st-century Liberals who saw provinces as obstacles to morally imperative constitutional change. They were horrified by the foredoomed constitutional processes of the past. They had learned from Trudeau the Elder that Canada’s federal courts, which they staffed with ideological friends, could usually be relied on to implement their basic constitutional agenda.

One major legal hurdle remained. Canada’s legal system, derived from the British, did not apply international law domestically even after ratification of a major treaty or covenant. Federal, and in some cases provincial, legislation was necessary to introduce such international rules into Canadian law. Otherwise, Canadian courts could only be inspired by them at their discretion in a haphazard, indirect and unpredictable way, which was unsatisfactory for the activist Justin Trudeau government.

At any rate, the UN Declaration was not a treaty. A declaration of the UN General Assembly may carry great moral weight, as did the Universal Declaration of 1948, but it is soft international law. The 1948 Declaration had no direct legal effect in Canada, but it inspired renewed sensitivity to human rights in the Canadian Supreme Court in the 1950s, the adoption of the Diefenbaker Bill of Rights in 1960 (which had limited impact) and numerous federal and provincial laws, including the Quebec Charter of Rights of 1975, probably the most comprehensive provincial legislation in this field. This process culminated in the adoption of the Canadian Charter of Rights, a major part of the Canadian Constitution, in 1982.

The Charter can be seen as the grandchild of the Universal Declaration of 1948. Section 35 of the Constitution Act of 1982 can also now be seen as foreshadowing the UN Declaration of 2007. Canada can reclaim its moral standing on this issue at the heavy price of challenging its inherent nature. Canada has begun to decolonize without telling the Canadian people.

The last turning point came in 2021 when Parliament introduced the 2007 Declaration into Canadian law.¹⁰ This short piece of legislation has outstanding constitutional significance. As of 2024, it is bearing judicial fruit in Canada’s highest court. This confluence of emerging international law and constitutional law is undoubtedly progressive, and of such legal force that a future Conservative government may only be able to slow its pace.

If 1982 was a constitutional coup, the 2021 federal law ranks right up there beside it. Both were highly undemocratic in that the Canadian people did not vote for either of them. The Trudeaus have both changed Canada fundamentally, in different ways, and it will take many years to fully understand what they have accomplished.

This was made clear in a decision of the Supreme Court in February 2024, which can only be described as a turning point with major implications for Canadian federalism and the structure of the Canadian state.

The Supreme Court’s contribution

Parliament passed legislation in 2019 that purported to redress severe suffering in Indigenous communities over many decades in the matter of social services for children and families. It chose to reach that objective by handing over jurisdiction in this matter to Indigenous communities, as several experts and studies had proposed.

But Parliament went further than simply delegating this additional responsibility under the Indian Act. It declared that social services were a matter of Indigenous self-government and that the right to self-government was constitutionally protected, which meant it was no longer subject to federal or provincial legislative delegation of power to Indigenous communities. It was a legislative power that flowed directly from section 35 of the 1982 Constitution, creating in effect a – racially based – third order of government.

The Attorney General of Quebec challenged this act before the courts, stating that this goal could be achieved only through the formal amendment process, and that Parliament did not have the power to enact the 2019 legislation. This challenge led to the Supreme Court’s 2024 decision in the Reference re An Act respecting First Nations, Inuit and Métis children, youth and families,¹¹ in which it validated this first exercise of federal legislation that created a third order of government. By its approval of the unprecedented use of the legislative power over Indigenous peoples granted in 1867, the highest court agreed that Parliament could unilaterally:

  • eject provinces from the field of providing social services to Indigenous youth and families,
  • recognize that the Indigenous right of self-government in this area now flowed from section 35,
  • decree that there would now be such a thing as Indigenous laws in Canada,
  • declare that such Indigenous laws would be an extension of federal legislation, and
  • grant such laws the same paramountcy over provincial laws that federal laws have always had.

This is a fundamental departure from Canadian constitutional law known since 1867, and a radical new dimension of the already major constitutional change brought about in 1982.

In doing so, the Supreme Court heavily relied on the UN Declaration of 2007, unusual for what can only be considered a rather weak international instrument. Major changes to the Canadian legal order flowing from the 1948 Declaration only came about when Canada subscribed to much more precise international covenants of the 1960s that gave effect to the Universal Declaration and adopted federal or provincial legislation of its own. In comparison, we have here a rush to fundamental legal change that would have been inconceivable a few decades ago.

This is the new intellectual framework of the Court, which will lay the groundwork for its jurisprudence for many years to come:

The Act¹² is part of a broader legislative program introduced by Parliament to achieve reconciliation with First Nations, the Inuit and the Métis “through renewed nation‑to‑nation, government‑to‑government and Inuit‑Crown relationships based on recognition of rights, respect, cooperation and partnership” (preamble). The framework serving as the foundation for this reconciliation initiative by Parliament is the United Nations Declaration on the Rights of Indigenous Peoples …, adopted by the United Nations General Assembly in 2007. That international instrument provides that “Indigenous peoples, in exercising their right to self‑determination, have the right to autonomy or self‑government in matters relating to their internal and local affairs” (art. 4). Among the matters dealt with in the Declaration, the provisions setting out “the right of indigenous families and communities to retain shared responsibility for the upbringing … and well‑being of their children, consistent with the rights of the child” (preamble; see also art. 14) are of particular relevance to this reference …

While the Declaration is not binding as a treaty in Canada, it nonetheless provides that, for the purposes of its implementation, states have an obligation to take, “in consultation and cooperation with indigenous peoples, … the appropriate measures, including legislative measures, to achieve the ends” of the Declaration (art. 38). Recognized by Parliament as “a universal international human rights instrument with application in Canadian law”, the Declaration has been incorporated into the country’s positive law by the United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14 (“UNDRIP Act”), s. 4(a).13

No one questions the morality of such a federal undertaking, or the pressing need for better social services for Indigenous people. It is obvious that the federal and provincial governments, the colonial Canadian state at it has so far been conceived, has utterly failed in this regard.

What is startling is that a fundamentally new Canadian state is now emerging without the use of the formal amending process adopted in 1982, without the consent of the provinces and at their expense, and without any larger public debate about the creation of a third order of government.

The Supreme Court explicitly stated that it had little concern for provincial resources that will now be required to put Indigenous laws into effect. It said nothing about the consequences of concurrent and different Indigenous laws applying within provinces or across the country, nor problems flowing from their application outside Indigenous reserves, since a majority of Indigenous people now live in cities and Indigenous jurisdiction clearly does reach that far. The city of Montreal’s social services, for example, may now be called on to apply different sets of Indigenous laws based on racial distinctions. This is not only alien to the Constitution of 1867, but was also never contemplated by the drafters of the Constitution of 1982.

Following this decision, the federal government promptly announced it would soon introduce further legislation removing the entire field of Indigenous health care from provincial jurisdiction. There is now no constitutional obstacle to going much further into other formerly exclusive areas of provincial jurisdiction as long as they have an Indigenous component. Natural resources, dealt with explicitly in the UN Declaration of 2007, inevitably come to mind.

The Supreme Court was disingenuous enough to write, in response to the Attorney General of Quebec, that it was not tinkering with the fundamental architecture of the Constitution, which would have triggered the formal amendment process. That has to rank with the most deceptive statements made by politicians in the Trudeau the Elder era. The best that can be said is that that the highest court has now inaugurated a period of transition that will make the Canadian state unrecognizable.

Justin Trudeau has introduced an entirely new dimension to Canadian nation-building. The legal changes he has brought, through major unilateral reinterpretation of constitutional law based on fledgling forms of international law, mean that the traditional division of powers between Ottawa and the provinces has been set aside. Canadian federalism in the 21st century now has three orders of government, in which Indigenous laws are legal norms superior to both provincial legislation and municipal ordinances. This monumental constitutional change has been brought about without federal-provincial conferences or constitutional bargaining. Justin Trudeau has outdone his father quite significantly. Trudeau the Elder would be impressed.

Unlike his father’s, Justin Trudeau’s coup was under the radar. He has added a third order of government to Canadian federalism without an unattainable amendment to the Constitution. This is high constitutional art. It will change the country at least as much as his father’s Charter of Rights, or the mass immigration Trudeau the Younger has also brought in undemocratically.

Notes

¹ The Canadian Charter of Rights and Freedoms is Part I of the Constitution Act of 1982. It includes sections 1 to 34. Part II is titled Rights of the Aboriginal Peoples of Canada and contains sections 35 and 35.1.

² https://www.thecanadianencyclopedia.ca/en/article/the-white-paper-1969

³ https://en.wikipedia.org/wiki/Calder_v_British_Columbia_(AG)

https://en.wikipedia.org/wiki/James_Bay_and_Northern_Quebec_Agreement

⁵ A precedent could be set by the Petapan treaty with the Innu of Quebec. An agreement in principle which, for the first time in Canadian history, did not contain a surrender clause was signed in 2004 but fell through. It has been renewed in 2023 by three Innu communities and the federal government, and awaits provincial approval (https://youtu.be/Kbjq5k_YngE). In addition, Justin Trudeau has announced the nomination of the first commissioner to oversee modern Indigenous treaties (Toronto Star, May 2, 2024, https://www.thestar.com/politics/federal/justin-trudeau-announces-commissioner-to-oversee-modern-indigenous-treaties/article_0bbaa2b6-088d-11ef-ae82-db86e830512b.html)

⁶ These three conferences were set in what were then sections 37 and 37.1 of the Constitution Act of 1982.

⁷ For example, Patrick Macklem, “First Nations Self-Government and the Borders of the Canadian Legal Imagination,” McGill Law Journal, Vol. 36, No. 2 (September 1990).

https://en.wikipedia.org/wiki/Royal_Commission_on_Aboriginal_Peoples

https://www.ohchr.org/en/indigenous-peoples/un-declaration-rights-indigenous-peoples. For a fascinating glimpse at the process leading to the adoption of the Declaration at the UN from an independent Canadian perspective, see Marie Léger, “L’histoire de la Déclaration des Nations Unies sur les droits des peuples autochtones,” Recherches amérindiennes au Québec, Vol. 37, Nos. 2–3 (2007).

¹⁰ https://www.laws-lois.justice.gc.ca/eng/acts/u-2.2/page-1.html. The preamble of this Act repudiates the doctrine of terra nullius, approved by Pope Alexander VI (of the criminal Borgia family) in 1494, which was the traditional legal basis for the factual existence of the Canadian colonial state. Current Pope Francis, the first pontiff from the American continent, also repudiated it immediately after his trip to Canada in 2022, stating it never was part of the Church’s religious doctrine. For early disquiet about the legal consequences of the Act, see my article in L’Aut’journal, https://lautjournal.info/20210903/la-loi-concernant-la-declaration-des-nations-unies-sur-les-droits-autochtones

¹¹ 2024 SCC 5.

¹³ Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24.

¹² Paragraphs 3 and 4 of the decision already cited.