Colonizing the demos? Settler rights, Indigenous sovereignty, and the contested ‘structure of governance’ in Canada’s North

Abstract

Settler-colonialism can consist of a struggle over the pre-political ‘structure of governance’ – over who composes the demos and how decisions should be made. This article examines two lawsuits where settlers contested the Indigenous structure of governance in Canada’s Northwest Territories. I show that in both cases settlers brandished a novel ‘tool of elimination,’ individual rights to voting, mobility and expression. I trace how settlers used this tool in a strategic two-pronged way, challenging as ‘illiberal’ restrictive laws flowing from Indigenous sovereignty and then championing race-neutral laws the promulgation of which would open the demos to settler domination. I show that courts adjudicating these challenges were compelled to grapple with the appropriate ‘framing of justice’ – with whether the relevant rights-bearer was the universal individual or the ‘constitutionally prior’ Indigenous demos. I conclude that, where the court decided on individual-rights grounds, settlers were able to extend control over the structure of governance.