Jeffrey K. Rustand of the Canadian Constitution Foundation has recently made a legal argument that any inherent right of self-government for Aboriginals is unconstitutional. His 13 page statement can be read in full here. Rustand says Canada's constitution is clear that the only powers are federal and provincial. However, power can be delegated from those jurisdictions, and that would be a better approach to aboriginal governance. He argues that granting bands a status similar to municipalities would be superior to the status quo--an approach that needlessly has many problems. His conclusion follows:

Canada’s Constitution does not allow the federal government to recognize governmental
powers in a group of people (any group of people) in the absence of delegating
legislation. Unfortunately this has not restrained the federal government from entering
into treaties and agreements with aboriginal groups purporting to recognize those groups
as having non-delegated inherent government power over property and persons,
aboriginal and non-aboriginal alike.

Through its current approach to aboriginal policy and treaty negotiations, the federal
government treats certain groups of Canadian citizens as if they had inherent power over
their neighbours, including powers of coercion over their physical integrity and freedom
of movement, and their property and assets. It makes no difference, and is no defense or
justification, that the groups in question are aboriginal rather than white, black, Hispanic
or Chinese. In Canada, racial or ethnic identity is not a principle by which government
power is distributed.

The federal government can achieve its policy objective of aboriginal self-government
properly through the granting of delegated powers, as has already been done in many
cases. The salutary objective of seeing aboriginal people manage their own affairs
without being controlled by Ottawa’s politicians and bureaucrats can be achieved within
Canada’s Constitution. There is no reason whatever for resorting to illegal and
unconstitutional action.

Conforming to the Constitution and constitutional law would not only enjoy the virtue of
adhering to constitutional mandates and the rule of law. It would also prevent us from
stepping down the fateful path to allocating governmental powers and privileges to
groups of Canadian citizens on the basis of race and ethnicity, and the withdrawal of
Canadian government and law from significant portions of Canadian territory.