This paper examines whether Canada’s recent grappling with Indigenous rights has begun to unsettle the longstanding assumption that Canadian institutions are sovereign in a manner that excludes Indigenous sovereignty. It identifies five substantially different claims often associated with sovereignty, arguing that it is worth considering them in disaggregated fashion. It investigates the particular attributes of sovereignty that are placed in issue by the encounter between Indigenous peoples and settler states, in particular the legal and political institutions of Canada. And it explores the specific form that the recomposition of sovereignty should take.
In particular, it suggests that we may be observing a bracketing of the question of sovereignty, not in a way that ignores the question, but that suspends its final determination, allowing multiple assertions of sovereignty to exist in a continual, unresolved – perhaps never resolved – tension. If the question of sovereignty is being reconstructed in this way, then it represents a substantial change in our understanding of what is necessary to sustain a constitutional order. It represents the emergence of what might be called an ‘agonistic constitutionalism’, in which a constitutional order is characterized by divergent, perhaps even contradictory, assertions of fundamental principle, held in continual tension. Such a constitutionalism is especially evident in the Indigenous dimensions of Canadian constitutional practice, but it is also apparent elsewhere. Indeed, it may turn out to be a more common feature of constitutional orders than we have ever suspected.