Subsidiarity in action: Considering applications of subsidiarity to the contexts of indigenous self-determination and of climate change jurisdiction

In any of its forms, the principle of subsidiarity, which mandates certain relationships between different levels of societal decision-making that may imply significant decentralization, has significant implications for various practical contexts, and “subsidiarity in action” has significant prescriptive or programmatic implications.  This paper is an attempt to discuss some such implications and how they show subsidiarity making a distinctive contribution in policy contexts.  This paper first identifies and seeks to disentangle four strands of rapidly expanding scholarship on the principle of subsidiarity, arguing that each of these strands tends towards a distinctive type of claim.  The arguments for these claims have intersections and overlaps, although there is sometimes also a trading on the connotations of the term illicitly across contexts, which has sometimes escaped notice because of the level of abstraction at which much discussion of subsidiarity proceeds.  Second, the paper turns to consider the practical application of subsidiarity to issues of self-determination of Indigenous communities.  The paper claims that this context highlights how a relatively traditional principle of constitutional theory or political morality may respond to policy issues on which there are sometimes claims of a need for much more radical approaches.  At the same time, this context speaks back to the principle of subsidiarity by highlighting some potentially unresolved questions within scholarship on the principle of how different layers of communities are to be identified.  Third, the paper turns to the application of subsidiarity in federalism disputes, drawing on the example of a recent Canadian case concerning jurisdiction of the federal government versus the provinces over policies responding to climate change.  The paper seeks to show that the principle of subsidiarity can identify more nuanced policy options than may be first apparent on thinking about the policy issue, even while it also draw on the policy problem to pose some questions back to the subsidiarity scholarship concerning some nuanced features of the interaction between subsidiarity and collective action problems.