Law discussion paper 5 pages minim

Citation: 1989-1990 Can. Hum. Rts. Y.B. 3 1989-1990

Content downloaded/printed from HeinOnline (http://heinonline.org) Sun Mar 1 11:52:12 2015

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from uncorrected OCR text.

Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies,

Cultural Differences

Mary Ellen TURPEL*

A sensitivity to cultural differences in human rights analysis is essential for understanding Aboriginal rights at Cana- dian law and for analyzing the relation- ship between Aboriginal peoples and Confederation. The author suggests that sensitivity to cultural difference is an imperative which should inform all levels of constitutional legal analysis with respect to Aboriginalpeoples. This imper- ative may require critical analysis of the cultural self-image of the Canadian human rights system, and increased tol- eration of difference in the political, social, and legal institutions operating within the Canadian state. The author suggests that the Charter and conceptions of rights at Canadian law can be situated culturally, arguing that they are by no means universal or progressive, especially insofar as they affect Aboriginal peoples.

Dans une analyse des droits de la per- sonne, la sensibiliti aux diffirences cul- turelles est essentielle pour comprendre les peuples autochtones et leurs droits dans le contexte de la confrderation cana- dienne. L 'auteure suggbre que cette sen- sibilit6 aux diff6rences culturelles est un impratif qui devrait 6clairer toutes les facettes de l'analyse constitutionnelle des droits des peuples autochtones.

Cet impiratif requiert une analyse cri- tique du systme canadien des droits de la personne, lequel reflte trs imparfai- tement les valeurs autochtones, et une tolerance accrue des institutions poli- tiques, sociales, et ligales de l'ftat cana- dien t l'gard des differences culturelles. L'auteure soutient que la Charte et les conceptions des droits vhicul~es en droit canadien doivent etre adapties aux dif- firences culturelles; elle allkgue que ces droits n'ontpas une signification univer- selle etprogressive en ce qui concerne les peuples autochtones.

* Professor, Dalhousie Law School. There are several people who have shared with me the ideas expressed in this paper in various discussions and collective projects and to whom I am very thankful-these are three First Nations women, Marlyn Kane, Sylvia Maracle and

Patricia Monture; and my colleagues at Dalhousie Law School, Wade MacLauchlan, Dianne

Pothier, and Bruce Wildsmith; and, last but probably most, Mark Austin. I would like to acknowl-

edge the assistance of the Human Rights Law Fund of the Department of Justice (Canada) in

the preparation of this paper.

4 Canadian Human Rights Yearbook

When we discover that there are several cul- tures instead of just one and consequently at the time when we acknowledge the end of a sort of cultural monopoly, be it illu- sory or real, we are threatened with the destruction of our own discovery. Suddenly it becomes possible that there are just others, that we ourselves are an 'other' among others. '

This article pursues an unapologetic critique of the Canadian Charter of Rights and Freedoms.2 It is not intended to be reconstructive, to suggest ways of resolving specific human rights dilemmas, or to offer some defini- tive interpretive or ideological context in which the Charter should be situated. It is simply an exploration of cultural authority in Charter interpretation and application from one particular perspective. In writing this article, I hope to create a space for debate about the character and implications of cultural difference for legal, and especially constitutional, analysis-a space which has been opened in other disciplines but which is clearly a late-comer to legal discourse.

3

The objective of my criticism is simply to call into question the cultural authority of the Canadian Charter of Rights and Freedoms, and constitu- tional legal analysis generally, especially insofar as the Charter is applied to Aboriginal peoples. 4 By cultural authority, I mean, in this context, the authority which one culture is seen to possess to create law and legal lan- guage to resolve disputes involving other cultures and the manner in which it explains (or fails to explain) and sustains its authority over different peoples. I intentionally use the term 'culture' and 'cultural difference' instead of 'race' or 'racial difference' because I view this as more accurate and more expan- sive. The terms 'race' or 'racial differences' are too readily equated with 'colour' or visible biological differences among peoples; whereas cultural differences should be understood more as manifestations of differing human (collective) imaginations, of different ways of knowing. The expression 'cul-

1. Paul Ricoeur, History and Truth, Trans. C. Kelby, (Evanston: North Western Univer- sity Press, 1965) c. 5 at 278.

2. Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), c. 11 [Hereinafter referred to as the Charter].

3. See J.F. Lyotard, The Postmodern Condition: A Report on Knowledge, trans. Bennington and Massumi (Minneapolis: University of Minnesota Press, 1984); and B. Johnson, A World of Difference (Baltimore: Johns Hopkins University Press, 1987).

4. I use the term Aboriginal throughout this paper simply because it is currently a term which I take to embrace all of the first peoples of what is now called Canada: peoples of various First Nations (e.g., Cree, Mohawk, Ojibway), the Mgtis, and Inuit.

(1989-1990) 6 C.H.R. Y.B.

Aboriginal Peoples and the Canadian Charter

tural difference' conjures up more than differences of appearance (colour). It allows us to consider profound differences in understandings of social and political life.

This expression is particularly apropos in the context of discussing con- stitutional normativity because it enables us to take into account the extent to which Aboriginal peoples reject or embrace any of the liberal premises of the Canadian legal system, something which cannot be considered within the paradigm of race. Within that paradigm, the discussion too quickly focuses on the negative aspects of victimization, marginalization and aliena- tion of Aboriginal peoples from the current system.

5 While such an approach is significant in understanding the problems Aboriginal peoples confront, the broader features of Aboriginal cultures cannot be considered positively unless one is sensitive to cultural differences. 6 Within the rubric of cultural difference, as I view it, it is possible to consider the extent to which the present conception of the Canadian constitution embraces or acknowl- edges the different cultural or ideological systems of all peoples over which it claims authority, and how this is factored into constitutional interpreta- tion. My thesis is that, despite protestations to the contrary, cultural differ- ences, at least First Nations' cultural differences, have not been considered as a legitimate part of, or challenge to, constitutional interpretation.

My consideration of cultural differences and the Charter has been informed by my own cultural experiences as an Aboriginal woman, lawyer and law professor. I can in no way speak for or claim to represent a position shared by all Aboriginal peoples. Nor would I want to make such a claim. My purpose in writing this paper is to suggest that there are important chal- lenges to the way in which the Charter is interpreted, its cultural legitimacy

5. See for example, an excellent study by M. Jackson on Aboriginal peoples, "Locking Up Natives in Canada" (1989) 23 U.B.C. L. Rev. 215.

6. For those who may be unfamiliar with Aboriginal problems, the following excerpt from the Final Report of a United Nations Special Rapporteur, Martinez Cobo, on the Prob- lems of Discrimination against Indigenous Peoples, U.N. E/CN.4/Sub.2/1983/21/add.8, should provide some context:

Much of their land has been taken away and whatever land is left to them is subject to constant encroachment. Their culture and their social and legal institutions and systems have been constantly under attack at all levels, through the media, the law and the public education systems. It is only natural, therefore, that there should be resistance to further loss of their land and rejection of the distortion or denial of their history and culture and defensive/offensive reaction to the continual linguistic and cultural aggressions and attacks on their way of life, their social and cultural integrity and their very physical

existence. They have a fight to continue to exist, to defend their lands, to keep and to transmit their culture, their language, their social and legal institutions and systems and their ways of life, which have been illegally and unjustifiably attacked. (at 49)

TURPEL

6 Canadian Human Rights Yearbook

as the "supreme law of Canada," ' 7 and its symbolic economy, which should be considered by those in the business of constitutional discursion.

(i) CULTURAL DIFFERENCE IN CONSTITUTIONAL LAW

By suggesting that a space needs to be opened in constitutional discourse to explore cultural difference, I make no attempt to define the context of that space or those differences. I would like to raise some specific areas of concern about the institutional and imaginative framework of the Canadian Charter vis-t-vis Aboriginal peoples in order to call into question what are arguably general epistemological problems with legal knowledge, reasoning and decision-making. For example, I question the extent to which the domi- nant legal culture has taken account of differences between itself and Aborig- inal peoples, and differences within the plethora of Aboriginal cultures which exist, precariously, alongside Canadian society.

The insensitivities to cultural difference that interest me operate at various levels in constitutional legal analysis. The most obvious insensitivity is found in the text of the constitution, but there is a constellation of insensi- tivities and (mis)understandings which underlies the framing of the debate over social and economic power or cultural accommodation as a debate about rights. These are not mutually exclusive areas. Clearly, both textual insensi- tivities and the one-dimensional cultural images suggested by the texts of the constitution are informed by a more complex web of cultural and social rein- forcements. It is easy to forget the extent to which the constitutional system, both institutionally and imaginatively, is a system of a particular historical and cultural set of circumstances and interests. Moreover, it is too quickly overlooked that the entire process and substance of constitutional develop- ment and interpretation is the construct of a highly legalistic, adversarial, and abstract set of doctrines and theories which developed according to the needs of the predominantly Anglo-European colonialists.

(a) The Textual Offence

For an outside critic of the constitutional structure, there is the evident problem of using the 'master's' language and conceptual apparatus to dis- mantle the 'master's' house. 8 In other words, how, as a question of method

7. Section 52(1) of the Constitution Act 1982, provides:

The Constitution of Canada is the supreme law of Canada, and any law that is inconsis- tent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. 8. A. Lorde, "The Master's Tools Will Never Dismantle the Master's House" in A. Lorde,

Sister Outsider (Trumansburg, N.Y.: the Crossing Press, 1984). Audre Lorde, a Black American writer interested in issues of cultural difference, puts it this way: "What does it mean when the tools of a racist patriarchy are used to examine the fruits of that same patriarchy? It means

that only the most narrow perimeters of change are possible and allowable." (at 110)

(1989-1990) 6 C.H.R.Y.B.

Aboriginal Peoples and the Canadian Charter

can those sensitive to cultural difference explain that difference when no common language other than that of the predominant culture and legal system is available? I do not have an answer to that question; I attempt to support its premise by problematizing language and legal structure where I have found it to be culturally insensitive. I do not discount the extent to which my criticism is here narrowly confined to constitutional interpretation, and particularly to the Charter: a realm within which internal arguments and counter- arguments about rights seem to hold the possibility of playing themselves out endlessly through interstitial rhetorical moves. The same kind of analysis would be interesting in so-called private law areas such as contract, property, or tort law doctrine.

At the textual level, I would suggest that the statement in the Preamble to Part I of the Constitution Act, 1982, that "Canada is founded upon prin- ciples that recognize the supremacy of God and the rule of law" is both inac- curate as an historical matter, and insensitive to cultural differences at least with respect to Aboriginal peoples. 9 Contrast this preambular statement in the Constitution Act, 1982, with the following excerpt from a speech of Chief Seattle to the Governor of Washington Territory:

Your religion was written upon tables of stone by the iron finger of your God so that you could not forget. The Red Man could never comprehend nor remember it. Our religion is the traditions of our ancestors-the dreams of our old men, given them in solemn hours of night by the Great Spirit; and the visions of our sachems; and it is written in the hearts of our people.'

0

When these two statements are juxtaposed there is a certain amount of cul- tural dissonance which I would hope is evident even upon a cursory reading. We are faced with a story of monocultural dominance suggesting that Canada is, for purposes of constitutional analysis, to be seen as having been estab- lished, exclusively, on principles that recognize the supremacy of God and the rule of law, and left with irreconcilable differences. It seems clear that for the purposes of Aboriginal peoples, anything other than a fictional read- ing of the preamble would represent a kind of cultural hegemony. Perhaps the culturally hegemonic reading is accurate insofar as Canada is believed to have been 'founded' that is, discovered, by the dominant culture, and the authors of the preamble, descendents of the 'founders', share the concep-

9. Preamble to Part 1, the Charter. 10. Parts of this speech appear in F. Turner, ed., North American Indian Reader

(New York: Penguin Books Ltd., 1973) at 251. I selected this speech because I believe it repre- sents a difference between the predominant Judeo-Christian concept of God and an Aboriginal notion of spirituality. I am aware of the apparent disanalogy of a statement of law and a state- ment of religion. However, my conflation of the two presupposes that, first, the preamble consti- tutes a declaration of civil religion in a society no longer bound by common denomination, and secondly, a declaration of religion in Aboriginal society is at the same time a declaration of law.

TURPEL

8 Canadian Human Rights Yearbook

tion that God and the rule of law reign supreme in Canadian society.11

Aboriginal peoples would strongly contest this rendition of the founding of Canada, and the suggestion that their spirituality could be incorporated under the notion of the supremacy of God and the rule of law.

How do constitutional interpreters go about explaining the obvious insensitivity to cultural difference which appears in the first passage in the Constitution Act, 1982? Are constitutional interpreters aware of the magni- tude of problems with the passage? From what position of hermeneutical competence could these differences be reconciled? Can cultural differences ever be reconciled in the legal domain? Some constitutional scholars hold that the supremacy of God passage in the preamble was just an accommo- dating afterthought in the constitutional drafting process and that it is really of no consequence in the interpretation of substantive rights guarantees in the Charter.12 However, to the extent that it projects a singular and power- ful cultural image over the Charter, it cannot be dismissed as insignificant. Although it may well have been a drafting compromise, that can be under- stood from within the dominant Anglo-European culture, when placed next to the cultural understandings of Aboriginal peoples it becomes a serious repression of difference. Furthermore, the preamble fits too comfortably with other troubling hegemonic delusions like the one about the two founding nations, or the concept of multiculturalism within a bilingual (French and English) context. 13 The preamble would certainly appear to undermine the self-congratulatory propaganda that promotes a vision of Canada premised on toleration of, and respect for, cultural and linguistic differences. 1 4 This vision may be true in the context of cultural and linguistic differences between communities of European descent (i.e., French and English), but it is of ques- tionable legitimacy with respect to radical, non-European, cultural differ- ences. To what extent is the Canadian constitutional system capable, ideo-

11. I should note at this point that my use of 'society' is with reservation. This word, in the sense that it represents a totality of persons and social practices, seems repressive. The expression Canadian 'society' is used throughout simply because it is vernacular. The extent to which, as a metaphor, it is used in constitutional discourse to describe a single or describable state of affairs is often misleadingly homogeneous.

12. D. Gibson, The Law of the Charter: General Principles (Toronto: Carswell, 1986) at 65. 13. This is a reference to the October 8, 1971, policy statement of then Prime Minister

Trudeau regarding multiculturalism within a bilingual framework in which he suggests it was "the most suitable means of assuring the cultural freedom of Canadians." Office of the Prime Minister, Ottawa.

14. See J. Porter, The Measure of Canadian Society: Education, Equality and Opportu- nity (Ottawa: Carleton University Press, 1987). Porter argues that there has been a revival of 'ethnicity' in Canada outside of the French-English context. He embraces the notion that Canada is built on differences and that it is pluralistic in nature. However, he cautions that this may be regressive:

(1989-1990) 6 C.H.R.Y.B.

TURPEL Aboriginal Peoples and the Canadian Charter

logically, of admitting' cultural differences? Debates about federalism and its handmaiden, constitutional law, take place within strict parameters which allow only for the denial or accommodation of difference within the dominant construct of the 'two solitudes'. The discussion has not yet seriously encoun- tered the solitudes of others who are marginalized by this bipolar delineation. 15

(b) The Rights Paradigm

The whole fabric of rights discourse constitutes the more subtle level at which the undifferentiated legal framework displays its cultural imagery. The struggle over the division of social, political, and economic power in Canadian society has been formulated by the Charter as a set of rights claims or as a dispute over rights in order to give it constitutional currency. Even multiculturalism operates as an interpretive rider on rights analysis in the Charter. Sections 25 and 27 of the Charter, the interpretation provisions on Aboriginal and treaty rights and multiculturalism, are said to take account of cultural differences in constitutional human rights conflicts.1

6 It is signif- icant to note that these are provisions within a rights-focused framework of

In some respects the revival is regressive. Because it emphasizes descent group identifi- cation and endogamy, important principles of ethnic group survival, it runs the risk of believed-in biological differences becoming the basis of invidious judgments about groups of people ... Moreover, where ethnicity is salient there is often an association between ethnic differences and social class inequality. That is why much of the discussion of the relations between ethnic groups concerns equality, equality of legal rights, political rights, and in the more recent period, social rights such as education, jobs, good health and equality of opportunity. Class inequality becomes obscured and more difficult to analyze where there is ethnic heterogeneity in the social structure. This may reflect some inadequacy in the sociological theories of class, almost all of which assume ethnic homogeneity. (at 121)

15. Debate over the 1987 Meech Lake Accord and rampant anti-French crusades indi- cates a degree of sentiment in favour of imposing only 'one solitude.'

16. These sections provide:

Section 25: The guarantees in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any right or free- doms that have been recognized by the Royal Proclamation of October 7, 1763, and (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired. Section 27: This Charter shall be interpreted in a manner consistent with the preserva- tion and enhancement of the multicultural heritage of Canadians.

Also, section 35, in Part II of the Constitution Act, 1982, provides:

(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, aboriginal peoples of Canada includes the Indian, Inuit and M6tis peoples of Canada.

10 Canadian Human Rights Yearbook

legal analysis. Consequently, any consideration of cultural differences sug- gested by sections 25 or 27 will be formulated within the predetermined mode of reasoning, central to Anglo-European legal discourse, of rights claims or claims against the state. These provisions do attempt to address differences or "otherness", from within the dominant or prevalent method of resolving legal conflicts. It is noteworthy, however, that they are construed as excep- tional or special provisions within the rights-based dominant style of analysis. Hence, we are in the realm of the special, exceptional, or 'other' in section 25, and arguably in section 27, rather than in the realm of the fundamen- tally different, incongruous or incommensurable. Arguments for multicul- turalism are particularly offensive because they presume differences to be 'minority' matters that are manageable, interpretively, from within the majority-conceived scheme of the Charter. This is an aberration to Aboriginal people because it does not recognize the fundamental challenge presented by cultural difference to the rights approach to social conflicts.

17

Because the rights regime is dominant, sanctioned and elevated as the supreme law, it must filter all conflicts through its categories and concep- tual apparatus. The rights regime dominates the culturally different inter- pretive communities by using its own conceptual framework to apply the pro- visions of the Charter to "others" even though these provisions may be interpreted in a "special" way. It decides for those it doesn't understand, using a framework which undermines their objectives. It performs a levita- tion trick by transforming differences into rights within the supreme law of Canada.

To what extent can a rights paradigm of analysis be viable universally? Is it shared by culturally different peoples? I suggest that the 'rights' analysis and imagery is a projection of an exclusionary cultural or political self-image. In situating this assertion in the context of Aboriginal peoples, I am faced with the fact that rights discourse has been widely appropriated by Aboriginal

(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

17. As D. Sanders in "Article 27 and Aboriginal Peoples of Canada", in the Canadian Human Rights Foundation's Multiculturalism and the Charter: A Legal Perspective (Toronto: Carswell, 1987) suggests,

Frequently Indian leaders have rejected the terms "ethnic" or "cultural minority" as inadequate to describe the special situation of indigenous peoples. They assert a unique- ness which they feel is denied by terms which equate them to Irish Catholics or Chinese. The rejection of such categories was rather sharply put by Brooklyn Rivera, the Miskito Indian leader from Nicaragua, when he said "Ethnic groups run restaurants; we are nations of people". (at 156)

(1989-1990) 6 C.H.R.Y.B.

Aboriginal Peoples and the Canadian Charter

peoples in struggles against the effects of colonialism, and that we have been

encouraged to do so. Here it is important to distinguish arguments which are made for Aboriginal peoples by legal scholars who do not share a common ancestry or culture with those for whom they write, from the much smaller

body of literature by Aboriginal persons. 18 This distinction is critical because just as cultural difference is acknowledged, Aboriginal peoples are faced with

a response, at least from the legal community that is ostensibly 'supportive', which unwittingly perpetuates their domination through a false reconcilia-

tion of differences. For example, in the introduction to a pair of recent articles by W. Pentney, one finds a general disclaimer to the effect that his work on the Charter was written from the perspective of a supporter and that it

is entirely conceivable that many Aboriginal peoples would not share/under- stand his perspective. 19 However, in the text, this modesty seems to be

effaced by the legal analysis advanced. He constructs an argument which

18. Examples in the former category are numerous and part of a growth industry. See, as a sampling, Cumming, "Rights of Indigenous Peoples: A Comparative Analysis" (1974) 68 ASIL Proc. 265; Morse, "Aboriginal Self-Government in Australia and Canada" (Kingston: Queen's University, Institute of Intergovernmental Relations, 1984); Sanders, "Aboriginal Peoples and The Constitution" (1981) 19 Alberta L.R. 410; Slattery, "The Constitutional Guarantee of Aboriginal and Treaty Rights" (1983) 8 Queen's L.J. 232; and Wildsmith, "Pre-Confederation Treaties" in Morse, ed., Aboriginal Peoples and the Law, (Ottawa: Carleton University Press, 1985), 122. Scholarship in the Aboriginal category includes, as a sampling, B. Richardson, ed., Drumbeat: Anger and Renewal in Indian Country (Summerhill Press, 1989); Manuel and Posluns, The Fourth World: An Indian Reality (Don Mills: Collier-Macmillan, 1974); Deloria and Lytle, The Nations Within: The Past and Future of American Indian Sovereignty, (New York: Pantheon Books, 1984); Henderson, "Unraveling the Riddle of Aboriginal Title", (1977) 5 Am. Indian L. Rev 75; Chartier, "Aboriginal Rights and Land Issues: The Metis Perspective" in Boldt and Long, eds., The Quest For Justice: Aboriginal Peoples andAboriginal Rights (Toronto: Univer- sity of Toronto Press, 1985), 54; Monture, see infra notes 21 and 54; and Gunn-Allen, The Sacred Hoop, (Boston: Beacon Press, 1986).

19. William Pentney, "The Rights of the Aboriginal Peoples of Canada in the Constitu- tion Act, 1982: Part I-The Interpretive Prism of Section 25", (1988) 22 U.B.C. L. Rev. 21, and "Part Il-Section 35: The Substantive Guarantee" (1988) 22 U.B.C. L. Rev. 207. Pentney states in his introduction to Part I:

Finally, this article is founded on the supposition that it is legitimate and appropriate to articulate and interpret the rights of the aboriginal peoples of Canada in a language and in the context of an institutional structure that is non-aboriginal. Many aboriginal peoples reject this approach because they do not recognize the Canadian legal and polit- ical structure as legitimate. I do not seek to dispute that view. The modest assumption underlying this article is that some aboriginal peoples may find it helpful to rely on these provisions in support of their claims and that for these people it is important to under- take a principled and purposive analysis of these sections. Furthermore, it is my hope that this analysis will offer a useful and persuasive challenge to the currently accepted legal doctrines of aboriginal and treaty rights, and thus may assist all aboriginal peoples in the articulation of their rights in Canada and elsewhere. (at 22)

TURPEL

12 Canadian Human Rights Yearbook (1989-1990) 6 C.H.R.Y.B.

by-passes cultural differences and advances a thesis which assumes that if only better legal tests were developed to balance collective and individual rights, and more care was taken to define Aboriginal rights, the problems with the culturally hegemonic self-image of the Charter could be conceivably resolved. 20 The task is frequently formulated as one of better thinking, more rigorous analysis, and consciousness-building in order to decide how to 'apply' the constitution to Aboriginal peoples. This style, even, as here, in its best-intentioned form, has provoked frustration and criticism from Abori- ginal writers, many of whom would suggest that the legal arguments simply mask social and political conflicts between Aboriginal peoples and the Cana- dian state, concealing the painful experiences of Aboriginal peoples under bureaucratic rule. An expression of the sense of domination felt by Aboriginal people when someone from 'outside' the cultural framework sets out to solve and reconcile conflicts is expressed in an article by Patricia Monture.

21 She writes:

Following this tradition of oral history and storytelling, I want to share one of my experiences with you. Like most other academics, I spent at least a little bit of my time going to conferences, listening to other people, and learning and sharing what we are thinking. This is a story about a conference I attended, a legal conference, that I want

to tell you. It is also a story about anger. My anger is not unique to this conference; it is paralleled at many other conferences I have been to and the classes I have been to, most other days in my life, so it is an important story . . . [She relates her reaction to a discussion of a racial incident] . . . This is my life. I do not have any control over the pain and brutality of living the life of a dispossessed person. I cannot control when that pain is going to enter into my life. I had gone away for this conference quite settled with having to deal with racism, pure and simple. But, I was not ready to have my pain appropriated. I am pretty possessive about my pain. It is my pain. I worked hard for it. Some days it is all I have. Some days it is the only thing I can feel. Do not try to take that away from me too. That was what was happening to me in that discussion. My pain was being taken away from me and put on the table and poked and prodded with these sticks, these hypotheticals. "Let's see what happened next." I felt very very much under a microscope, even if it was not my own personal experience that was being examined.

22

20. In Part II, ibid., he concludes by suggesting that:

The key challenge that remains is to translate the theoretical generalities presented here into arguments in concrete cases, for it is only by this process that sections 25 and 35 of the Constitution Act, 1982 can serve to enhance the rights of the aboriginal peoples of Canada. (at 278)

And in Part I, he concludes that:

The illustrations ... should operate in a Charter case. It is an interpretive prism, and the refraction which it provides will protect the rights and freedoms of the aboriginil peoples of Canada. (at 59)

21. "Ka-Nin-Geh-Heh-Gah-E-Sa-Nonh-Yah-Gah" (1986) 2 C.J.W.L. 159. 22. Ibid., at 160 and 163-4.

Aboriginal Peoples and the Canadian Charter

Monture's description of pain at having racism discussed dispassion- ately, or as a technical or unconflicted analysis is interesting because it points to the inability of legal categories and descriptions to account for the lived experiences of Aboriginal peoples in Canada. Moreover, it suggests the possi- bility that assistance aimed at human rights progress may actually be part of the oppression Aboriginal peoples experience.

23

It is interesting to me that, in other disciplines, apart from law, cultural differences have been approached in a way which is contrary to current legal analyses. They have not been 'interpreted' as gaps in one's knowledge of a discipline or discourse, waiting to be filled with conceptual bridges and extensions, but rather as irreconcilable or irreducible elements of human rela- tions. Barbara Johnson, for example, in a recent work on literary theory, observes the following of her experience of difference:

If I perceive my ignorance as a gap in knowledge instead of an imperative that changes the very nature of what I think I know, then I do not truly experience my ignorance. The surprise of otherness is that moment when a new form of ignorance is suddenly activated as an imperative.

2 A

The perception of cultural difference as an imperative which may loosen or shift the paradigm of knowledge, rather than a cognitive gap to be filled is one which has not yet been taken seriously in legal analysis or interpretation vis-d-vis the cultural differences of Aboriginal peoples. What would the impli- cations of a Johnson-type sensibility be for legal discourse? I contend that it would problematize the conceptual basis of the rights-paradigm in Cana-

23. For an explanation of this idea in another cultural context, see A.D. Freeman, "Legi- timizing Racial Discrimination Through Anti-discrimination Law: A Critical Review of Supreme Court Doctrine" (1978) 62 Minn. L. Rev. 1049. Freeman's dialogue in his analysis attempts to capture the ironical effect of anti-discrimination law:

THE LA W: "Black Americans, rejoice! Racial Discrimination has now become illegal". BLACK AMERICANS: "Great, we who have no jobs want them. We who have lousy jobs want better ones. We whose kids go to black schools want to choose integrated schools if we think that would be better for our kids, or want enough money to make our own schools work. We want political power roughly proportionate to our population. And many of us want houses in the suburbs". THE LA W: "You can't have any of those things. You can't assert your claim against society in general, but only against a named discriminator, and you've got to show that you are an individual victim of that discrimination and that you were intentionally dis- criminated against. And be sure to demonstrate how that discrimination caused your problem, for any remedy must be coextensive with the violation. Be careful your claim does not impinge on some other cherished American value, like local autonomy of the suburbs, or previously distributed vested rights, or selection on the basis of merit. Most important, do not demand any remedy involving racial balance or proportionality; to recognize such claims would be racist". (at 1049-50, footnotes omitted)

24. World of Difference, supra, note 3 at xi.

TURPEL

14 Canadian Human Rights Yearbook

dian legal analysis because concepts, such as the rule of law, human rights, and judicial impartiality, would be seen more as culturally-specific beliefs rather than universally applicable concepts. As Raymond Williams suggests of this shift for political theory and literature:

When the most basic concepts-the concepts, as it is said, from which we begin-are

suddenly seen to be not concepts but problems, not analytic problems either but historical

movements that are still unresolved, there is no sense listening to their sonorous summons

or their resounding clashes. We have only, if we can, to recover the substance from which

their forms were cast. 25

Williams captures, in my view, the effect of the imperative of cultural differ-

ence. When we think of cultural differences between Aboriginal peoples and

the Canadian state and its legal system, we must think of these as problems

of conceptual reference for which there is no common grounding or author-

itative foothold. Necessarily, we can't 'decide' the substance of cultural dif-

ferences from a position of a particular institutional and conceptual cultural

framework; each culture is capable of sensitivity to the basic condition of

difference, and should develop cross-cultural relations accordingly. To what

extent is the rights paradigm of constitutional analysis a conceptual frame-

work for the toleration of, or sensitivity toward, cultural difference? To

answer this question at least two lines of inquiry need to be pursued: what

is the conceptual-historical basis of the rights-paradigm, and how do

Aboriginal peoples use rights terminology? The human rights paradigm in Canadian constitutional discourse is

clearly a product of the political theories of natural rights developed in Europe

during the seventeenth century. Despite recurring references to a collectivist

orientation of society, most often cited in attempts to differentiate Canada

from the United States, individualism arguably derived from Locke and

Hobbes underpins the Charter. 26 While I do not want to suggest that an

exploration of the origins of the paradigm is dispositive in any way, it does

seem significant that the rights conception developed in Europe, and espe-

cially for Canadian constitutional purposes, in England in the later seven-

teenth century. Moreover, the conceptual basis of rights analysis in notions

of property and exclusive ownership are critical factors in the tension between rights discourse and cultural difference.

25. Marxism and Literature (Oxford: Oxford University Press, 1981) at 213.

26. Whose most important works, respectively, are: Two Treatises of Civil Government

(1690) and Leviathan (1651). I would not want to suggest that the same thinkers did not influence

the notion of rights in the United States. I want to highlight that this is arguably the origin

of the rights paradigm in Canada, no doubt as influenced by constitutional theories which evolved

in the United States on the basis of the same theories.

(1989-1990) 6 C.H.R.YF.B.

Aboriginal Peoples and the Canadian Charter

Thomas Hobbes and John Locke developed theories of 'natural rights' based on the argument that one key purpose for entering civil society was the protection of private property. Locke suggested that every man (and emphasis should be on man because Locke should also be infamous for his theory that society was naturally patriarchical) possesses a right of property ownership. This right, he reasoned, flowed logically from the fact that human beings are God's property. He argued that people enter into 'civil society' for the central, and negatively conceived, purpose of protecting their inter- est or claim to private property against random attack from other persons.

The idea of the absolute right to property, as an exclusive zone of ownership, capable of being transmitted through the family (through males according to the doctrine of 'primogenitor'), is arguably the cornerstone of the idea of rights in Anglo-American law. Rights are seen as a special zone of exclusion where the individual is protected against harm from others. Obviously, this is a highly individualistic and negative concept of social life based on the fear of attack on one's 'private' sphere. It provides something of a basis, however, for all ideas about rights-the idea that there is a zone of absolute individual right where the individual can do what she chooses. As Roberto Unger has suggested:

The right is a loaded gun that the rightholder may shoot at will in his corner of town... The property right was the very model of right generally. The consolidated property right

had to be a zone of absolute discretion. In this zone, the rightholder could avoid any

tangle of claims to mutual responsibility. It was natural that this conception of right should be extended to all rights.

27

The imagery of the property-based right to exclude surfaces rather revealingly in Charter rights jurisprudence. With property rights metaphors at hand, the Supreme Court of Canada in the recent Morgentaler case on the Criminal Code provisions on abortion, suggested that:

The Charter is predicated on a particular conception of the place of the individual in

society. An individual is not a totally independent entity disconnected from the society in which he or she lives. Neither, however, is the individual a mere cog in an impersonal

machine in which his or her values, goals and aspirations are subordinated to those of the collectivity. The individual is a bit of both. The Charter reflects this reality by leaving a wide range of activities and decisions open to legitimate government control while at

the same time placing limits on the proper scope of that control. Thus, the rights guar- anteed in the Charter erect around each individual, metaphorically speaking, an invisi-

ble fence over which the state will not be allowed to trespass. The role of the courts is to map out, piece by piece, the parameters of the fence.

28

27. Unger, The Critical Legal Studies Movement (Cambridge: Harvard University Press, 1986) at 36 and 38.

28. Madame Justice Wilson writing in Morgentaler, Smoling & Scott v. The Queen &

TURPEL

16 Canadian Human Rights Yearbook

The metaphors of the fence, mapping, and trespassings are so property- specific and exclusionary in character they can only be construed as symptoms of acute Locke-jaw.

Notions of protection from social/legal intrusion, a classical concept of liberty, seem to have a common conceptual origin in or nexus with prop-

erty rights. The idea that rights are necessary to protect one's 'rightful' corner of town, to restrain the ill-intentioned from depriving someone of their corner, is also an important justificatory argument for rights claims in contemporary legal and political theory. The extension of this notion of a natural right to property to other forms of social relations (and conceptions of the private) arguably precedes the rights paradigm formalized in the Charter. It empha- sizes a liberal conception of social life where the maximization of wealth and happiness through self-interest is the guiding creed. Ideologically, liberal notions of property and self-interest regulate the general character of Cana-

dian political discourse. They are likewise evident in legal texts and in their interpretation where debates over individualism and collectivism find

expression. 29

There is no polity that is purely individualistic or purely collectivist. A binary coupling of these characteristics implies a kind of dialectical hier-

archy. I would suggest that the individualist description is integrally privileged in the rights paradigm and that collectivist considerations are merely supple- mentary. However, I would take issue with some scholars on their projec- tion of 'society' as an either-or, and caution against an attempt to typify,

Attorney General of Canada [1988] 1 S.C.R. 30 at 164; (1988) 82 N.R. 1 at 116; and (1988) 44 D.L.R. (4th) 385 at 485.

29. 1 do not want to get embroiled in the individualist versus collectivist description of Canadian society. Patrick Monahan, in Politics and the Constitution: The Charter, Federalism and the Supreme Court of Canada (Toronto: Carswell, 1987), has commented on this binary opposition as:

For an individualist, life is the individual pursuit of happiness rather than membership in a body politic. All roads converge on the atomic, prepolitical individual maximizing his or her self-interest. Thus, social contract theorists like Hobbes and Locke justified the creation of the State by analogy to a self-interested bargain between autonomous individuals in a state of nature. There was little emphasis on the possibility of the State helping to forge communal values or common ends. The State was necessary merely as a means of establishing order in a universe in which the interests of rational maximizers inevitably collided with each other. Restraint was contractual rather than natural ... Within collectivism, individuals are constituted by their membership in an organic com- munity. Society is primarily a community of hierarchically organized classes or groups, rather than an association of antecedently free individuals. The good of the individual is not conceivable apart from some regard for the good of the whole. Thus, restraints on individuals are natural rather than contractual, flowing from the very duties and rights which are implicit in membership in a larger community. (at 92)

(1989-1990) 6 C.H.R.Y.B.

Aboriginal Peoples and the Canadian Charter

for example, an Aboriginal society in such a fashion. 30

The Canadian human rights system, and in particular the Charter, having been distanced in time from what I would construe as the conceptual basis of rights theories, that is, the natural right to individual ownership to property, seems a little less hostile to, and perhaps even supportive of cultural difference, especially since so much is said of Aboriginal matters in the con- text of interpretations of provisions of the Charter. Some scholars argue extensively that the Charter has recognized certain collective rights, such as Aboriginal rights and language rights, and that this has taken legal concep- tions of rights in Canada far beyond the 'individualistic' basis of rights which find their origin in property notions.

There are two aspects of the collective rights stream of legal scholar- ship on the Charter which I would call into question in the context of cultural difference. The first is the tendency to conceptualize collective rights, and arguments for collectivist considerations, as 'oughts': perhaps persuasive, but at this point only apologies for suggested directions. Scholars in this camp serve as wishful legislative 'spin doctors.' The second is the extent to which these arguments are responsive to cultural differences vis-a-vis Aboriginal peoples when made on their behalf, presuming that Aboriginal peoples can unproblematically engage in the abstract, adversarial legal process for the 'granting' of such rights. In other words, the problem, identified earlier, is that of using an(other) language and conceptual apparatus (the Canadian legal system) to further an understanding of a different system of belief.

On the first issue, I would suggest that if current political and economic arrangements are any indication, the scope for respect of cultural differences is more theoretical than actual in the case of Aboriginal peoples. 3 1 The main difference which is tolerated, albeit with considerable strain, in Canadian federalism is the French linguistic-cultural difference inside of Quebec and, to a lesser extent, outside of that province. Indeed, the tale of two founding nations present at Confederation, accepted uncritically in Canadian legal dis-

30. Ibid. Although Monahan doesn't explicitly do so, his employment of the metaphor of society, which implies a kind of totality of Canada, would seem to overlook cultural differ- ences and their relation to the binary of individual versus collective.

31. Here I would note that the scholarly legal arguments suggesting Canada is a society respectful of difference, and indeed built on it, are largely reflective of a body of historical work along the same theme. It is interesting to me that this body of literature tends to focus on French-English differences ("two solitudes") as the primary cultural difference in Canada, generally effacing the arguably more radical (non-European) difference between either of these cultures and the First Nations. See, for example A.R.M. Lower, "Two Ways of Life: The Primary Antithesis of Canadian History" in R. Cook, C. Brown and C. Berger eds., Approaches to Canadian History (Toronto: University of Toronto Press, 1967) at 15; and J.M.S. Careless, "Limited Identities in Canada" in C. Berger, ed., Contemporary Approaches to Canadian History (Toronto: University of Toronto Press, 1987) at 1.

TURPEL

18 Canadian Human Rights Yearbook (1989-1990) 6 C.H.R.Y.B.

course, while often trotted out in support of 'collective rights' style argu- ments, is a position particularly disrespectful of the cultural and political differences of Aboriginal peoples. 32 For the most part, Canada is defined politically as two primary and distinct cultures and languages which form the centerpiece of nationhood, with multiple decorator cultures as embellish- ing addenda. This is not to belittle the differences that have been nominally formalized in legislation, but to question why cultural difference means differ- ent compared to either or both of the two privileged solitudes.

33

One can understand why Aboriginal peoples reacted so strongly to the distinct society clause, section 2(1)(b), of the 1987 constitutional (Meech Lake) accord. 34 As the Assembly of First Nations suggested in their reaction to the clause:

It perpetuates the idea of a duality in Canada and strengthens the myth that the French and English peoples are the foundation of Canada. It neglects the original inhabitants and distorts history. It is as if the peoples of the first nations never existed. It suggests that historically and presently as well the French peoples in Quebec form the only dis- tinct society in Canada. The amendment fails to give explicit constitutional recognition to the existence of first nations as distinct societies that also form a fundamental charac- teristic of Canada . . .We were told for five years that governments are reluctant to entrench undefined self-government of aboriginal peoples in the constitution. Yet, here is an equally vague idea of a "distinct society" unanimously agreed to and allowed to be left to the courts for interpretation.

35

32. See G. Manuel and M. Posluns, The Fourth World: An Indian Reality (Don Mills: Collier-Macmillan, 1974), who suggest that:

Why should there be a different kind of equality for us as Indian people than for the other groups of Canadians who share both a common history and a common territory in the way that a province occupies a single territory? Yet I can only imagine that our relationship with this land and with one another is far deeper and more complex than the relationship between the people of any province and their institutions, or one another. Nor can the Indian peoples be brushed off with the multicultural broom to join the diverse ethnic groups that compose the Third Element of Canada, that is, those who are neither French nor English. (at 219)

33. I am reminded of the bitter closing remarks of Metis leader Jim Sinclair at the final failed session of-First Ministers constitutional discussions on Aboriginal Rights in March 1986 when he prophesied that the Prime Minister and Premiers who had rejected Aboriginal peoples would soon 'take care of their own' and bring Quebec explicitly into constitutional agreement. Of course, within a year, that same congenial confederation family left Meech Lake with an accord recognizing Quebec as a distinct society in Canada.

34. This section of the Accord provides that the Constitution of Canada shall be inter- preted in a manner consistent with "the recognition that Quebec constitutes within Canada a listinct society."

35. Assembly of First Nations Position paper on the Meech Lake Accord, 1982 (unpublished).

Aboriginal Peoples and the Canadian Charter

Apart from the apparent subterfuge of the Meech Lake Accord, the collective rights position is put forth with built-in restrictions in legal scholar- ship. For example, Joseph Magnet, in an article on collective rights, suggests that:

The spirit of Canada's constitution is rooted in the principle of bi-nationality. Canada's federal system proceeds directly from the requirements of a bi-national state.

36

Perhaps the tolerance of a collective difference within Confederation is the result of the scope of that difference. Could it be that differences will be tolerated, respected, and even formally enshrined provided they are differ- ences arising from a common (European) ancestry?

Some arguments for collective rights view them as logical extensions of real, that is, individual rights. In this line of reasoning, individual rights serve as the conceptual source of collective rights. Hence, by common sense, constitutional provisions that protect individual rights will protect collectiv- ities. Even those of such persuasion would not seriously suggest that the Charter is strictly (textually) an individualistic document. 37 But the extent to which one can argue that there is any framework, conceptual or institu- tional, within which to seek recognition of such diverse collective-based inter- ests, is, in my view, very limited at present. Furthermore, the extent to which it would be desirable to do so, especially for Aboriginal peoples, is question- able given the issue raised earlier of the ability of the rights paradigm to deal with cultural differences. As Canada pins multiculturalism on its chest, the dominant European culture continues presumptively to set the terms of toler- ance for collective differences. Magnet suggests that:

Peoples who do not dream of national greatness together cannot survive as a state. Changes in the world system conspire against the multinational state as an organizing unit of politics. While Canada's system for sub-cultural accommodation tends to produce dull and uninspiring politics, it nevertheless works, fostering a growing sense of Canadian nation- ality, albeit slowly. The Charter makes accommodation between sub-national commu- nities much more exciting, but also more perilous. It is therefore crucial to consider entrenched collective rights carefully. We, who set the terms of debate, should strive to assist Courts expounding the Charter to devise a modus operandi that will fully pro-

36. "Collective Rights, Cultural Autonomy and the Canadian State" (1986) 32 McGill L.J. 170 at 172.

37. The individualist-collectivist debate in many ways betrays the descriptive poverty of so much constitutional scholarship. Two absolutist, parable-like claims are cast as either/or. Evidently, scholars feel quite strongly that one or the other should prevail. However, I would question the validity of this restricting choice and its cultural relativity. See Monahan, supra, note 30 at 95, and Schwartz, First Principles, Second Thoughts: Aboriginal Peoples, Constitu- tional Reform and Canadian Statecraft (Montreal: Institute for Research on Public Policy, 1986), at 366.

TURPEL

20 Canadian Human Rights Yearbook

tect the collective rights of semi-autonomous minorities, while keeping peace in the Canadian family.

38

His position on nationalism and cautious accommodation of 'sub- cultures', a term denoting appendage to the 'constituent cultures', presup- poses an interpretive position from which cultural differences may be tamed. The collective assertions of rights are somehow exceptional and need to be balanced as against the more fundamental value of keeping peace in the Cana- dian family. It is difficult for Aboriginal peoples to dream of national great- ness together with Canada when the visions of nationhood differ so pro- foundly, when the criteria of greatness are at odds. It is especially difficult to dream of national greatness when the terms of the dream are set out for you. When Magnet suggests that "we, who set the terms of the debate, should strive to assist Courts . . . " it is easy to see where and how terms are set for legal analysis: they are set by lawyers, skilled in the abstract and technical practices of a profession which has a definite cultural location.

Magnet identifies the limits to collective rights discussion in Canada legal scholarship and practice as follows:

The values advanced by collective rights have limits. These are dictated by two overarch- ing needs of the central state: to promote good relations between sub-cultural communi- ties and to foster a sense of national spirit.

39

Again, it is my impression that collective rights are assertions within a para- digm of individual rights, on the one hand, and nationalism or overriding national interest, on the other. There is little space within the confines of these conceptions to take interest in or recognition of the cultural differences among Aboriginal peoples, let alone differences in the conception of a legal order. It is, therefore, not surprising that, because of the restrictions inherent in the framework for rights defined by the single state, indigenous peoples focus on the international recognition of "rights". 4° The legal textual and interpretive context in which collective rights would have to be advanced is so foreign to Aboriginal peoples, so abstract and removed from their own

38. Supra, note 36, at 175. 39. Ibid., at 177. 40. As Richard Falk observes, "The Rights of Peoples (In Particular Indigenous Peoples)"

in J. Crawford, ed., The Rights of Peoples (Oxford: Clarendon Press, 1988):

For one thing, indigenous peoples, to the extent that they centre their grievances around encroachments upon their collective identity, represent a competing nationalism within the boundaries of the State. Such claims, posited in a variety of forms, challenge two fundamental statist notions-that of territorial sovereignty, and that of a unified 'nation- ality' juridically administered by governmental organs. (at 18)

(1989-1990) 6 C.H.R.Y.B.

Aboriginal Peoples and the Canadian Charter

social or political context, that simply making a claim requires accepting the dominant cultural and conceptual framework.

Perhaps Magnet presupposes cultural differences, at least implicitly, when he suggests:

Collective rights litigation is adversarial. Litigation invites smart lawyers and subtle strata- gems. Community is pitted against community, majority against minority, often in a battle for survival. The history of collective rights litigation in the Canadian courts is a history of deep and lasting bitterness.

4 1

His comments refer mostly to linguistic and cultural differences/bitterness of the 'bi-national' character he identified (French-English). The adversarial character of collective rights litigation in which Aboriginal peoples are involved is likely more pronounced than litigation opposing francophones and anglophones because their differences make them even more marginal and they are perceived as particularly threatening. Of course, the adversari- al nature of the legal system is not confined to collective rights conflicts, although these are obvious occasions for it.

42

The cultural framework for collective rights claims is predisposed to insensitivity to the cultural system which Aboriginal peoples believe in and live by. 43 Why should Aboriginal peoples have or want to fit their aspira- tions into the dominant and imposed constitutional framework of the Charter or section 35 of Part II of the Constitution Act, 1982? An interesting anal- ogy here is the experience of new, non-Western states with the international human rights system. The philosophical basis of international human rights

41. Supra, note 38 at 174. 42. In the recent Supreme Court of Canada decision in Borowski v. A.G. Canada and

Interfaith, Coalition on the Rights and Wellbeing of Women and Children, R.E.A.L. Women of Canada and Women's Legal Education and Action Fund, [1989] 1 S.C.R. 342, Mr. Justice Sopinka observed that:

The requirement of an adversarial context is a fundamental tenet of our legal system and helps guarantee that issues are well and fully argued by parties who have a stake in the outcome. It is apparent that this requirement may be satisfied if, despite the cessa- tion of a live controversy, the necessary adversarial relationship will nevertheless prevail ... (at 358-9)

43. Some scholars argue (or presume) that this framework is not so alien or limiting because Aboriginal peoples have changed and are now more willing to take on the legal system on its own terms. This type of argument is based on an ignorance of and insensitivity toward the pro- found cultural differences between Aboriginal peoples and the dominant (French-English) society. As Manuel, supra, note 32, suggests:

When anthropologists, government officials, and churchmen have argued that our ways have been lost to us, they are fulfilling one of their own tribal rituals-wish fulfilment. (at 216)

TURPEL

22 Canadian Human Rights Yearbook (1989-1990) 6 C.H.R.Y.B.

instruments, like their Canadian counterparts, is considered to be too indi- vidualistic and European and simply not applicable to new states. These states have suggested that the denial of this reality perpetuates neo-colonialism in a new form. International lawyers are, of necessity, becoming sensitive to ideological or cultural differences over the international human rights paradigm:

It is becoming increasingly evident that the Western political philosophy upon which the [United Nations] Charter and the Declaration are based provides only one particular inter- pretation of human rights, and that this Western notion may not be successfully applic- able to non-Western areas for several reasons: ideological differences whereby economic rights are given priority over individual civil and political rights and cultural differences whereby the philosophic underpinnings defining human nature and the relationship of individuals to others and to society are markedly at variance with Western individual- ism ... it is evident that in most states in the world, human rights as defined by the West are rejected or, more accurately, are meaningless. Most states do not have a cultural heritage of individualism, and the doctrines of inalienable human rights have been neither disseminated nor assimilated.

44

My reading of Canadian law leads me to believe that the individual property basis of human rights is still with us and that it is revealed clearly in the text of the Charter, as well as in recent cases which have been decided under the Charter. For example, Chief Justice Desch~nes of the Quebec Court of Appeal, in Quebec Protestant School Boards v. A.G. Quebec, said this of the Province's argument that it had a 'collective' right to direct education policy:

Quebec's argument puts forward a totalitarian view of society to which the Court does not subscribe. Human beings are, to us, of paramount importance and nothing should be allowed to diminish the respect due to them. Other societies place the collectivity above the individual. They use the Kolkhoze steamroller and see merit only in the collective result even if individuals must be destroyed in the process. This concept of society has never taken root here . . . and this Court will not honour it with its approval.

45

The language of the Charter refers to the human rights enjoyed by 'every citizen of Canada', 'everyone', 'every individual', 'any person', etc. The section of the Charter on enforcement applies to "[a] nyone whose rights or freedoms . . . have been infringed", permitting them to apply to a court for

44. A. Pollis and P. Schwab, eds., Human Rights: Cultural and Ideological Perspec- tives (New York: Praeger Publishers, 1980), at 1 and 13; see also G. Triggs, "The Rights of 'Peoples' and Individual Rights: Conflict or Harmony?" in J. Crawford, ed., The Rights of Peoples, supra, note 40 at 141.

45. [1942] C.S. 673 at 692, 140 D.L.R. (3d) 33 at 64, aff'd. [1984] 2 S.C.R. 66, 10 D.L.R. (4th) 321. The Supreme Court did not expressly comment on C.J. Deschne's obiter dicta.

Aboriginal Peoples and the Canadian Charter

the order the court considers appropriate in the circumstances-almost always the singular subject.

The extent to which a human rights law intended to protect mainly indi- vidual rights can be interpreted as including either a collectivist understand- ing of these rights, or collective rights, is dubious. There are no conceptual directions leading from the Charter, in legal literature or in Canadian history to support a collectivist idea of rights for culturally distinct (non-European) peoples, if such a theory is conceivable, or the toleration of a community organized around collective and divergent (non-European) values. When cases involving Aboriginal peoples come before the courts, it is doubtful that differ- ent standards of legal analysis will be or could be applied.

46

A traditional concern with respect to the conceptual and institutional framework for judging rights claims is the elitist and culturally-specific (Euro- pean) character of the court. This concern involves both the issue of the cultur- al difference which arises because such a formalized adversarial and imper- sonal institution is unknown amongst Aboriginal peoples, 47 and the political problem of cultural hegemony raised by the fact that the representatives of the dominant (settler) communities write and 'interpret' the law for all Cana- dians, and do so within a conceptual framework of rights derived from the theory of a natural right to private property. The criticism of the judiciary and the judicial role post-1982 is hardly novel although it is reasonable to suggest that the problems are more pronounced in this context. 48 As A.W. MacKay notes generally on the context of the Charter:

What influences a judge in making a choice, where he or she is not bound by some rule? This question is more important when one notes that there are very few rules that can bind an innovative judge. Choices are more often the result of a balancing of competing

46. An interesting exception to this prediction in the recent Provincial Court judgment of Mr. Justice Igloliorte of the Newfoundland and Labrador Provincial Court in R. v. Ashini (unreported, April 18, 1989), a criminal case involving charges arising from protests by the Innu of low-level flight activity over Labrador, which suggests that the Innu conception of their land and their relationship to the land had to be considered by the Canadian legal system. Mr. Justice Igloliorte states:

Since the concept of land as property is a concept foreign to original people the Court must not assume that a "reasonable belief" be founded on English and hence Canadian law standards. The Innu must be allowed to express their understanding of a foreign concept on their terms, or simply to express what they believe.

This decision was overturned on appeal, without comment on this aspect of the judgment,

November 1989. 47. See M. Coyle, "Traditional Indian Justice in Ontario: A Role for the Present" (1986)

24 O.H.L.L. 605. 48. See A.W. Mackay, "For Whom Does the Charter Toll" in Boyle, MacKay, McBride,

Yogis, eds., Charterwatch: Reflections on Equality (1986) 10 Dalhousie L.J. at 35.

TURPEL

24 Canadian Human Rights Yearbook

values, and that is what the Charter invites. It is less clear where these values will come from-society at large, established society, legal society or the individual judge. The choice of what values to consult is personal.

49

If choices are personal (and therefore cultural), can the judge weigh a value system which is culturally different? Can a judge know a value which is part of an Aboriginal culture and not of her own? The extent to which anyone can know the basic differences as opposed to identifying difference, espe- cially when functioning in an institutional role defined as deciding the supreme law of a state is a fundamental problem for constitutional analysis. This is especially the case with respect to choices regarding different cultural systems because the knowledge structures valued by the Canadian judicial system are fundamentally different from the knowledge structures embraced by Aboriginal peoples.

I would seriously question whether differences can be or should be put before the court as evidence of the court's lack of authority, culturally. By placing this before the court, and by accepting the substantive jurisdiction of the court over a dispute or claim, cultural differences may be seen as simply racial differences to be managed within legal discourse and not as cultural differences. Nevertheless, some lawyers see this as a viable strategy. "The first task in advancing cases involving Aboriginal rights through Canadian courts is to make the different world view of the Indian Nations visible."

50

However, I would query how, by whom, and to what end? Once again, cultural differences are not such that they can be managed within the dominant legal conceptual-framework. There are huge epistemological problems which would make this technique appear even more hegemonic in that to try to understand in that context is to deny even more fully the implica- tions of cultural difference. J.F. Lyotard has expressed epistemological differences in the following way:

There is, then, an incommensurability between popular narrative programmatics, which provide immediate legitimation, and the language game known to the west as the ques- tion of legitimacy-or rather, legitimacy as a referent in the game of inquiry. Narra- tives, as we have seen, determine criteria of competence and/or illustrate how they are to be applied. They thus define what has the right to be said and done in the culture in question, and since they are themselves a part of that culture, they are legitimated by the simple fact that they do what they do.

51

49. Ibid., at 93-4 (footnotes omitted). 50. L. Mandell, "Native Culture on Trial, Judicial Insensitivity to Native Culture" [pub.

data] at 359. 51. Supra, note 3, at 23. Lyotard contrasts two epistemological models, the program-

matics of narrative knowledge and the pragmatics of scientific knowledge. This distinction, in my view, goes some distance toward capturing an element of cultural difference on which this article has focussed.

(1989-1990) 6 C.H.R. Y.B.

Aboriginal Peoples and the Canadian Charter

Sensitivity to cultural difference is sensitivity to the limitation of the capacity to know. The first question should be 'can I judge', or self-judgment. Cul- tural difference, especially in this context of the differences between European and non-European cultures, problematizes political legitimacy and cultural authority in legal analysis. If value choices can be seen to be culturally-located then decisions can be seen to be especially loaded politically, and judging to require, of necessity, an analysis of the cultural pre-disposition of the judge before anything else. 52 Otherwise, the legitimacy of judging (the knowing and reasoning part) is nothing more than the power of the dominant culture to impose its knowledge-structure and cultural system upon an artificial totality like Canadian 'society' 5

The larger significance of cultural difference, in my view, is the extent to which it reveals a lack of interpretive authority in legal reasoning and decision-making and the extent to which it problematizes the rule of law as one particular cultural expression of social life. As a consequence, judging is a problem, not simply an accepted institutional function. As I suggested earlier in discussing Johnson, experiencing cultural difference (as contrasted with 'knowing' difference) is identifying an imperative that changes the very "nature of what I think I know." This experience does not involve the grasp- ing of the allegedly gripping conflict between individual and community, or self and other, or collective and individual rights. It involves the recognition of the imperative which forces a rethinking of the cultural or interpretive authority for even those binary groupings.

The denial of difference is a political tool of cultural hegemony. It involves the legalization and entrenchment of politics in a particularly hegemonic way. As Michael Mandel has argued, in this regard:

The experience of Canada's aboriginal peoples is another refutation of any pretensions legalized politics might have to redressing major Canadian injustices. In effect, the aboriginal peoples tried to hijack the Charter enterprise to address their claims to the economic and political wherewithal for communal survival. But the Charter is highly resistant to hijacking. Its offer is strictly limited to formal equal citizenship, meant not to redress the balance of power but to legitimate it. Only individuals need apply. They can bring with them all the property they can muster, but no groups are allowed. Canada's aboriginal peoples are too far and too thoroughly removed from the material and cultural

52. B. Johnson suggests in The Critical Difference (Baltimore: Johns Hopkins University Press, 1980), that:

What this means is that every judge is in the impossible position of having to include the effects of his own act of judging within the cognitive context of his decision. The question of the nature of the type of historical causality that would govern such effects can neither be decided nor ignored. (at 108)

53. See, for an exploration of the influence of difference on judging, P. Monture, "A Vicious Circle: Child Welfare and the First Nations" (1989) 3 C.S.W.L. 1.

TURPEL

26 Canadian Human Rights Yearbook

presuppositions of this deal ever to be more than fleetingly attracted to it. It is some-

thing they have consistently tried to oppose. Not that opposing the legalization of politics

is an easy matter. The aboriginal peoples were not allowed to opt out of the Charter

any more than Quebec was-even less, because they had no section 33 to turn to. From

the way the courts have been behaving under the Charter, it seems they could have used one.

54

The rights paradigm is a legal structure with profound political impli- cations for Aboriginal peoples. Yet it is a paradigm largely insensitive to its

own particular cultural self-image. To reverse this legal scholarship one has to start to question fundamentally its grounding. As D. Cottom suggests, "to analyze culture as this lack of interpretive authority is to make reading [judging], which is always a political exercise, a deliberate interrogation of its own political nature.

' ' 55

To sidestep this problem of cultural or interpretive authority in judging, especially when 'litigating the values of a nation', is politically oppressive. One can cite a variety of 'progressive' judicial statements on collective rights

to round out the valuation of individual rights in Charter analysis; 56 but this

will never reach the more basic interpretive challenge raised by the cultural differences among Aboriginal peoples and the dominant (Anglo-European) society.

Within that paradigm of rhetorical arguments of individual versus col-

lective rights, the insensitivity or ignorance of cultural difference is rather boggling: in an early decision, involving Aboriginal persons, the Federal Court

of Appeal, in a judgment written by Mr. Justice MacGuigan, took the view

that "in the absence of legal provisions to the contrary, the interests of individ-

ual persons will be deemed to have precedence over collective rights. In the absence of law to the contrary, this must be as true of Indian Canadians

54. See Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (Toronto: Wall & Thompson, 1989) at 252-3.

55. D. Cottom, "Ethnographia Mundi", in Text and Culture: The Politics of Interpre-

tation (Minneapolis: University of Minnesota Press, 1989) at 86. 56. A popular one is from R. v. Oakes, [1986] 1 S.C.R. 103; 24 C.C.C. (3d) 321 in which

Chief Justice Dickson stated:

The Court must be guided by the values and principles essential to a free and democratic

society which I believe embody, to name but a few, respect for the inherent dignity of

the human person, commitment to social justice and equality, accommodation of a wide

variety of beliefs, respect for culture and group identity, and faith in social and political

institutions which enhance the participation of individuals and groups in society. The

underlying values and principles of a free and democratic society are the genesis of the

rights and freedoms guaranteed by the Charter and the ultimate standard against which

a limit on a right of freedom must be shown, despite its effect, to be reasonable and demonstrably justified. (at 136)

(1989-1990) 6 C.H.R.Y.B.

Aboriginal Peoples and the Canadian Charter

as of others." 57 Of course, as long as law writing is culturally monopolized, there will always be an "absence of law to the contrary."

The area of language rights is said to be a cornerstone of collective rights imagery in Charter analysis. The Supreme Court of Canada, in the recent case involving Quebec's former Bill 101 indicated that the basic understand- ing of this right is both individual and collective: "Language itself indicates a means by which a people may express its cultural identity. It is also the means by which the individual expresses his or her personal identity and sense of individuality.''58 This is interesting because the notion of the collective seems to be an extension of the individual right. Hence, if language rights are collective rights by virtue of extending the analysis from the individual outward, then it will be easy to find that individual rights are paramount to collective rights.5 9 How to go about reconciling these two images of rights when they conflict is no easy task, and the Court gives little guidance here on its view of collective rights-except to say that the individual's right to speak a language must be protected at law against the community's prohi- bition of that language.

Even in the venerated area of equality rights, as recognized in section 15 of the Charter, the text applies to "every individual." This provision has been interpreted by the courts not as a general recognition of the idea of equality, which, if read as 'sameness' or equivalence, would be deeply dis- turbing to Aboriginal peoples but simply as a principle relating to the appli- cation of given laws. In a recent equality case in the Supreme Court of Canada, Mr. Justice McIntyre stated that section 15 "is not a general guar- antee of equality, it does not provide for equality between individuals or groups within society in a general or abstract sense, nor does it impose on individuals or groups an obligation to accord equality treatment to others. It is concerned with the application of the law. " 6 The scope for Aboriginal rights claims under section 15 is limited because any theory of equality which the court is likely to accept will always be comparative, even if 'identical treatment' is not the persuasive legal test. Hence, Mr. Justice McIntyre suggests that equality

[i]s a comparative concept, the condition of which may only be attained or discerned by comparison with the condition of others in the social and political setting in which

57. Boyer v. Canada, (1986), 65 N.R. 305 at 315. 58. Attorney General of Quebec v. La Chaussure Brown's Inc et. al., [1988] 2 S.C.R.

712, at 721. 59. See J.D. Capulo, Radical Hermeneutics: Repetition, Deconstruction and the

Hermeneutic Project (Indianapolis: Indiana University Press, 1987). 60. Andrews v. Law Society of British Columbia et al.,-[1989] 1 S.C.R. 143 at 163

(emphasis added).

TURPEL

28 Canadian Human Rights Yearbook

the question arises. It must be recognized at once, however, that every difference in treat- ment between individuals under the law will not necessarily result in inequality and, as well, that identical treatment may frequently produce serious inequality... To approach the ideal of full equality before and under the law-and in human affairs an approach is all that can be expected-the main consideration must be the impact of the law on

the individual or the group concerned. Recognizing that there will always be an infinite variety of personal characteristics, capacities, entitlements and merits among those subject to a law, there must be accorded, as nearly as may be possible, an equality of benefit and protection and no more of the restrictions, penalties or burdens imposed upon one than another. In other words, the admittedly unattainable ideal should be that a law

expressed to bind all should not because of irrelevant personal differences have a more

burdensome or less beneficial impact on one than another. 6'

Equality rights analysis, even though it embraces a consideration of the "impact" of the law on groups can only be sensitive to cultural differ- ence with respect to Aboriginal peoples if it is not comparative, in the sense of comparing the treatment of a non-Aboriginal group with an Aboriginal group. In order to be sensitive, the court would have to allow for the fact that an entirely different conceptual framework may apply and that they (the judiciary) are not capable of knowing or reconciling differences. This is some- thing more than shielding Aboriginal peoples from general rights interpreta- tions (through section 25). It requires a sensitivity to the relativity of cultural understandings, with this notion of shielding.

It is troubling that Aboriginal peoples have few choices but to advance their differences as rights claims under the Charter in order to avoid ethno- cidal government action. 62 Even where an action is brought by an Aborigi- nal group pursuant to the Charter,63 the results, given cultural predisposi- tion of the Charter, are unlikely to be favourable. As Noel Lyon has argued:

The problem here is that the Charter expresses the values of a liberal democracy on the European model. It favours individualism and assumes a highly organized and impersonal industrial society. To apply values to native societies is to destroy them .... 64

61. Ibid., at 164-5. 62. To my knowledge, such claims are few to date. An important example would be the

recent application filed by the Innu for an injunction to stop low-level flights over their terri- tory. (November 6, 1989, Federal Court, Trial Division) They are arguing that their rights enshrined in sections 7 and 15 of the Charter were infringed by the Federal government in granting permission for low-level flights and training exercises by NATO Forces stationed at CFB Goose Bay. This case will provide an interesting opportunity to test my argument that the scope for cultural differences or Aboriginal "rights" within the framework of the Charter is limited.

63. The case of Twinn et al v. Canada, (1987) 80 N.R. 263, is the most notorious of

the positive assertions within the rights paradigm. 64. Noel Lyon, "Section 25 of the Canadian Charter of Rights and Freedoms" in Current

Issues in Aboriginal and Treaty Rights, as cited in Bruce Wildsmith, Aboriginal Peoples and Section 25 of the Canadian Charter ofRights and Freedoms (Saskatoon: University of Saskat- chewan Native Law Centre, 1988) at 21.

(1989-1990) 6 C.H.R. Y.B.

Aboriginal Peoples and the Canadian Charter

The risks inherent in formulating an appeal for recognition of cultural differ- ence in terms acceptable to the rights paradigm of the Canadian constitu- tion are high. This is a question of strategy and choice which I am certainly not in a position to resolve. I would only suggest that the cultural limitations from the Aboriginal side are clear and that, conversely, the imperative to rethink legal interpretation in light of cultural difference is obvious.

(ii) SOME AREAS OF DIFFERENCE

Although there is no culture or system of beliefs shared by all Aboriginal peoples, the paradigm of rights based conceptually on the prototype of right of individual ownership of property is antithetical to the widely-shared under- standing of creation and stewardship responsibilities of First Nations Peoples for the land, for Mother Earth. Moreover, to my knowledge, there are no narratives among Aboriginal peoples of living together for the purposes of protecting an individual interest in property. Aboriginal cultures are oral and the differences between these cultures and European cultures can be found in stories voiced through generations, and in customary laws sometimes repre- sented by wampum belts, sacred pipes, medicine bundles, or rock paintings. Social life is based upon responsibilities to creation and to the Creator. For example two Mohawk women have said the following of their understanding of the 'law':

We have a law that came from the creator and in that law was absolutely everything that we needed! Kanien'kehd:ka call it the KAIANERE'KO:WA. Some people call it the Great Law, or the Great Law of Peace, and it is. This law, our law, does not define 'rights'; it does not defend 'rights'. In our ways, there are no 'rights', only responsibili- ties: to observe the clans, to bring honour, trust, friendship and respect; to share; to be kind, honest and knowledgeable; to maintain a relationship with all of the natural world.

65

Moreover, some First Nations base social interaction on the various teachings of the Four Directions that life is based on four principles-roughly translated as trust, kindness, sharing and strength. These are responsibilities which each person owes to others representing the larger function of social life, that is, to live in balance in order to honour and respect Mother Earth. There is no equivalent of 'rights' here because there is no equivalent to the ownership of private property, and no equivalent to private or exclusionary spheres of social life. Oren Lyons has articulated an Aboriginal understanding of Aboriginal rights, which he describes as follows:

65. 'Our World', according to Osennontion and Skonaganichira, see KANIEN'KE HA:KA WOMEN, (1989), 10 Canadian Journal of Women Studies 7.

TURPEL

30 Canadian Human Rights Yearbook

They [Aboriginal rights] are the law of the Creator. That is why we are here; he puts

us in this land. He did not put the white people here; he put us here with our families, and by that I mean the bears, the deer, and the other animals. We are the aboriginal people and we have the right to look after all life on this earth. We share land in com-

mon, not only among ourselves but with the animals and everything that lives in our

land. It is our responsibility. Each generation must fulfil its responsibility under the law of the Creator.

66

The collective or communal basis of Aboriginal life does not really, to my knowledge, have a parallel to individual rights: the conceptions of law are simply incommensurable. The duty to the Creator is the duty of the people. There are no "rights". To try to explain to an Elder that under Canadian law there are carefully worked-out doctrines pertaining to who has proprietary interests in every centimeter of the territory, sky, ocean, ideas and various other relationships would provoke disbelief and profound skepticism.

The rights paradigm, whether it be articulated in terms of legal or polit-

ical rights, or through civil conceptions of a consolidated property right, is

simply a historically and culturally specific mechanism for the resolution of

disputes and the allocation of resources which is different from the proce-

dures used in any of the various Aboriginal cultures. I want to make my argu-

ment clear. Defining Aboriginal cultures at the high level of generality or

abstraction used by academics would assure an ability to capture differences

between Aboriginal cultural systems in the language and conceptual imagery

of the dominant culture. This would be highly insensitive to differences

between Aboriginal cultural systems. My two main contentions are that, first,

cultural differences are also differences between ways of knowing, describing

or understanding and that, second, cultural differences are differences among

even the 'other' cultures. Consequently, a descriptive analysis of the differ-

ences between cultures, as contrasted with an analysis directed toward raising

sensitivity or a sensibility of cultural differences, is an impossibility. Although

anthropologists have been cataloguing differences for many generations, the

cataloguing reveals more about the cataloguer than the subject. 67 The whole

methodology of the ethnographer or social anthropologist, whether she is

interested in something distinctively 'legal' 68 or otherwise, is a method of

66. "Traditional Native Philosophies Relating to Aboriginal Rights" in Boldt and Long, eds., The Quesifor Justice: Aboriginal Peoples and Aboriginal Rights, supra, note 18 at 19-20.

67. See, for an analysis of this, Clifford Geertz, "From the Native's Point of View: On the Nature of Anthropological Understanding" in Local Knowledge (New York: Basic Books Inc., 1983) at 56; and, James Clifford, Predicament of Culture (Cambridge: Harvard University Press, 1986).

68. For an example of a social anthropological approach to law see K. Llewellyn and E.A. Hoebel, The Cheyenne Way (Norman: University of Oklahoma Press, 1941).

(1989-1990) 6 C.H.R. Y.B.

Aboriginal Peoples and the Canadian Charter

objectifying, describing and valourizing the 'other': a methodology distinctly cultural, that is unproblematically subject-object structured. Because I have trouble with the corruptibility or cultural relativity of this methodology which taints the analysis and its teleology, I want to avoid reproducing it in my consideration of difference in this context. However, I would like to explore the differences that orient my understanding of Aboriginal peoples' usage of rights talk and of the imposed rights paradigm I have been considering. What is 'going-on' when Aboriginal peoples make rights claims and how does this depart from the rights paradigm established by the Canadian constitu- tional system?

The contemporary world of Aboriginal politics and scholarship by lawyers on Aboriginal peoples is particularly studded with discussions about rights-the right to self-government, the right to title to land, the right to equality, the right to social services, and the right to practice spiritual beliefs. None of this is very new nor, in my opinion, surprising given that the legal and post-contact theological literature has been focussed, since the sixteenth century, on the 'rights' of Aboriginal peoples or, perhaps more accurately, on what was right for them. The earliest works on newly 'discovered' peoples were concerned primarily with how the colonial powers (Spain) should treat the un-Christian and savage peoples 'discovered' in America. 69

Vitoria, the most notorious of the Spanish theologians who wrote on the so-called newly discovered peoples, structured his analysis of the treat- ment of 'Indians' in terms of natural law and on notions of absolute 'rights' or 'wrongs'. As Kennedy argues:

To Vitoria, Indian tribes are entities with legitimate public title within their territory. This title, or ability to act as sovereign, is subject to the moral order which requires sover- eigns to permit free intercourse and propagation of the faith. Any attempt to violate these divinely revealed 'rights' terminates their public title and enables the Spaniards to use whatever force seems necessary to enforce the divine order.

70

This is a significant historical point in coming to understand why Aboriginal- European relations were placed within the context of rights, legal or other- wise (i.e., divine). Since the 'discovery' captured the imagination of European scholars, the conceptualization of Aboriginal culture has been in terms of European (Christian) legal/moral categories, including notions of rights, such as the 'right' to property or the 'right' to have the Christian faith put before

69. See, for example, Bartolom6 De La Casas, The Tears of the Indian, (1656) (Trans. Phillip, 1932), and Vitoria, De Indis et De Juri Belli: Relectiones (Cologne & Frankfurt, 1696) (Trans. Nys, 1917). For a discussion of Vitoria see, generally, David Kennedy, "Primitive Legal Scholarship" (1986) 27 Harvard International L.J. 1.

70. Ibid., at 23.

TURPEL

32 Canadian Human Rights Yearbook

Aboriginal peoples. 71 Moreover, Kennedy suggests from his reading of Vitoria that:

he presumes throughout this argument that whatever consensual power the Indians have

to alienate their public title is governed by natural law notions of legitimate consent.

Their consent must be uncoerced, informed, etc. Moreover, the ability of the Indian lords

and people to consent to alienation of Indian lands is governed by the reciprocal respon-

sibilities of sovereigns and citizenry under the natural law that establishes and limits sover-

eign authority. 72

Vitoria imagines that the Indians are just like Europeans in their legal sensi-

bility; consequently, he can suggest that consent and other legal/moral

doctrines can be used to describe conflict in the new world and prescribe

appropriate treatment. Vitoria's scholarship was clearly not preoccupied with problems of cul-

tural difference. However, it has, more or less, been considered supportive,

laudatory, and persuasive in modern legal writing on Aboriginal peoples. 7 3

Whether or not there is any connection between Vitoria's world, modern legal

scholarship, or the character of the claims now being asserted by Aboriginal

71. Vitoria, supra, note 69 suggests:

If the Christian faith be put before the aborigines with demonstration, that is, with demon-

strable and reasonable arguments, and this be accompanied by an upright life, well-ordered

according to the law of nature (an argument which weighs much in confirmation of the

truth), and this be done not once only and perfunctorily, but diligently and zealously,

the aborigines are bound to receive the faith of Christ under penalty of mortal sin. This

is proved by the third proposition, for, if they are bound to hear, they are in conse-

quence bound also to acquiesce in what they hear, if it be reasonable. This is abundantly

clear from the passage (St. Mark, last ch.): "Go ye out into all the world, preach the

Gospel to every creature whoso believeth and is baptized shall be saved, but whoso believeth

not shall be damned" and by the passage (Acts, ch. 4): "No other name is given unto

man whereby we can be saved." (at 121 and 126)

72. Kennedy, supra, note 69 at 27. He continues, at 28, with the following description:

Generally, for each wrong which the Indians might commit, the Spaniards assert some right. As in the case of consent, they must make sure the Indians know what they are doing so as not to elicit a mistaken response. Again, the Indian authority is limited, as it is justified, by Vitoria's sense of natural law, under which unconscious or confused

exercises of Indian will are not effective to establish an avengeable wrong. Should the Indians persist in violating a Spanish right, they automatically forfeit their public title

to the Spanish. The mechanism of enforcement for this transfer is just war, which the Spanish may wage on the now title-less Indians. The Spanish power is limited to instances where a wrong has actually been committed by the Indians. If the Indians did not know

what they were doing, for example, the Spanish might be wronging the Indians or upset-

ting the natural law relationship between Indian sovereigns and citizenry.

73. See M. Davies, "Aspects of Aboriginal Rights in International Law" in B. Morse,

ed., Aboriginal Peoples and the Law, supra, note 18 at 16. Davies suggests that:

(1989-1990) 6 C.H.R. Y.B.

Aboriginal Peoples and the Canadian Charter

peoples, has not been seriously scrutinized. Consequently, rights talk has never seriously been questioned in this context either.

Many human rights scholars would argue that there have been no real

advances in 'rights' for Aboriginal peoples in America since the sixteenth century. However to seek progress in 'rights' terms, of course, presupposes the acceptance or fit of this paradigm. In my opinion, when Aboriginal peoples discuss rights and borrow the rhetoric of human rights in contem- porary struggles, they are using the discourse of human rights, both within Canada and internationally, as an instrument for the recognition of historical claims of cultural difference. In many cases, they appropriate this concep- tual framework as the only (or last) resort without sharing or accepting the distinctly Western and liberal political vision of human rights concepts.

Underlying the use of human rights terminology or the framework of rights claims is a plea for recognition of a different way of life, a different idea of community, of politics, of spirituality, differences which have existed, in the view of Aboriginal peoples, since time immemorial, but which have been cast as differences to be repressed or transformed since colonialization. Aboriginal rights claims are, in my view, requests for the recognition by the dominant (European) culture of the existence of another, and for toleration of, and respect for, the practical obstacles that the request brings with it. While this may be cloaked in rights talk, there is something at stake which is larger than rights, and which is conceivably outside of the texts of particular documents intended to guarantee human rights, such as the Charter, or Part II of the Constitution Act, 1982. What is at stake is a more basic, less 'legal- ized' condition of survival: the dignity of existing as Peoples.

I would argue that from early colonization until the present time, no

government or monarch has ever genuinely recognized Aboriginal peoples as distinct Peoples with cultures different from, but not inferior to, their own. Aboriginal peoples have not been viewed by the dominant culture as peoples whose ways of life should be tolerated or respected except in the most paternalistic and oppressive terms.

74

The reasons for this are varied. There is racism, whether intentional or not. There are obvious benefits to the assertion of government power and

It is often thought that discussion of Aboriginal rights is a recent phenomenon, a prod-

uct of the post-World War II climate that generally has been favourable to human rights.

In fact, the discussion of the fundamental rights in relation to Aboriginal peoples is con-

temporaneous with the 'Age of Discovery' itself. One of the fathers of modern interna-

tional law can, with justification, also be labelled the father of European Aboriginal rights theory. (at 19-20)

74. As indicated by the comprehensive statutory framework imposed by the Dominion

(and now Federal) government in the Indian Act, R.S.C. 1988, c. 1-6.

TURPEL

34 Canadian Human Rights Yearbook

the quest for economic dominance through control of land and resources. There is, no doubt, a constellation of factors, not all of which I understand or could explain. However, my impression, developed through my own experi- ences and work, as well as through formal education, is that Aboriginal cul- tures have been and still are presumed to be primitive, premodern, or inferior in the sense of being at lesser states of development than the dominant European culture. They continue to be viewed as artifacts. This is disturb- ing because it effaces cultural differences by presuming that cultures are basically the same, but at various historic levels of civilization. The narra- tive of cultural progress is antithetical to the idea of cultural difference. The theory of progress, or stories about development to a higher state of knowl- edge and cultural experience, is a product of an ethnocentric predisposition. It presupposes that one culture (European or European-influenced) is the measure of all others. Therefore, the primitive is just a nascent, evolving or disintegrating, state of cultural existence which needs to be 'rationalized' and developed to progress beyond its folkloric origins.

If I extend this line of criticism to the Canadian constitutional system, one can see why it was, and still is, considered important for the colonial governments to take jurisdiction over Aboriginal peoples in order to guide them to a more rational or civilized state of being where these 'others' can be assimilated into the yardstick culture. Not surprisingly the Church was usually the state's best ally in this endeavor. New allies include the prison and educational systems. This type of thinking about differences as inferiority, or as evaluative as compared with just different, arguably has been, and con- tinues to be, the main basis of denial of cultural difference. Instead of responding to departures from the culturally acceptable with cultural self- analysis, European-based cultures have reacted to difference with plans of civilization, sameness, domination and control. It has been necessary to protect and gradually civilize the "Indian" in Canada.

No government, colonial or present, has ever dealt with Aboriginal peoples on an equal basis without seeing them as means to an economic goal (settlement and development), as noble savages, as pagans without civiliza- tion, as welfare cases or as specimens for anthropological investigation, scien- tific collection or objects of tourism. I think this remains a damning assess- ment of the ethnocentricity of Canadian intracultural relations. Genuinely recognizing another People as an(other) culture is more than recognizing 'rights' of certain persons. Aboriginal cultures are not simply groups of persons who are culturally at a prior state of development and of different races. Race has been most often defined in terms of biology (or colour). Aboriginal cultures are the manifestations of a different human (collective) imagination. They are no less than culturally distinct. This has profound

(1989-1990) 6 C.H.R. Y.B.

Aboriginal Peoples and the Canadian Charter

implications. To borrow the words of someone who studied these differences throughout her life, Ruth Benedict:

[Aboriginal] cultures are oriented as wholes in different directions. They are travelling along different roads in pursuit of different ends, and these ends and these means in one society cannot be judged in terms of those of another society because essentially they are incommensurable . . All cultures, of course, have not shaped their thousand items of behaviour to a balanced and rhythmic pattern. Like certain individuals, certain social orders do not subordinate activities to a ruling motivation. They scatter. If at one moment they seem to be pursuing certain ends, at another they are off on some tangent apparently inconsistent with all that has gone before, which gives no clue to activity that will come after.

75

While it seems that, in the Canadian context, Aboriginal peoples and non- Aboriginal persons have some understanding and acknowledgement of each other, I would argue that this interaction has been at the expense of Abori- ginal peoples. We have been the ones who have had to suffer from cultural erosion in missions and prisons, and through economic exploitation.

76

75. See Ruth Benedict, Patterns of Culture (New York: Mentor Books, 1950) at 206. 76. For a sense of the cost of interaction on these terms, see report of M. Jackson,

supra, note 5. One example is that of the Lubicon Lake Cree. As Bernard Ominayak, Chief of the Lubicon Crees, and Joan Ryan suggest in "The Cultural Effects of Judicial Bias" in Judicial Insensitivity to Native Culture [pub. data]:

In a short four years, the homelands of the Lubicons have been scarred with seismic roads, burned by unfought fires, and trampled by bulldozers. The silence has been broken with the sounds of trucks and pumps. All of this activity has been undertaken unilater- ally by the multinational oil and gas companies with the agreement of the province of Alberta. No one asked the Cree if they had concerns about the way development should proceed, or if it should proceed, on their lands. The outcome has been the loss of a viable economy. As the land base was disrupted human lives were shattered because the rela- tionship with the land was broken. This meant a loss of linkage to the past, to the spirit world, to ancestors, to identity and to affirmation of self. It created a vacuum which was overwhelming because all roles were negated and no others could replace them fast enough to make them workable. The rhythm of life was broken and we began to see the predictable results: people became depressed, they drank, they abandoned themselves, they had no context, they could not find new meanings in old lands, they had no money, no access to work, they lost status, dignity, identity, responsibility. They became angry and turned it inward; they became dependent and isolated. The isolation was damaging to individuals and to the collective; people who are very competent to make decisions when seeking consensus and relying upon the wisdom of elders, do not necessarily know how to make individual decisions. Where there is no work, no activity, no vision of a future and the links with the past are shattered, there is no present and everything becomes meaningless. So, marriages break down and children are ignored because no one has anything to offer them. (at 349-50)

TURPEL

36 Canadian Human Rights Yearbook

Perhaps the only points in Canadian history at which it would have been possible to recognize difference were the times of treaty-making. Of course, treaties were made in European terms as legalistic, written documents, but they were taken by some Aboriginal peoples to be sacred and represented as such in, for example, the two-row wampum belt, or in their oral histories. The cultural differences in the understanding of treaties are very striking, as is clear from the sacrosanct character they continue to have for Aboriginal peoples, while being regarded by the Crown as having a status similar to a contract.77

Treaties were not de facto instruments for the recognition of diverse Indigenous cultures. In reality, they were political agreements intended to make way for economic and military progress, as defined according to the standards of the newcomers. It is clever how the Canadian law of treaties (Aboriginal-European) ascribes to treaties the status of contracts or domestic agreements: they are not seen as international agreements between sovereign peoples or nations. If you inquire as to why treaties are not viewed as agree- ments between two (or more) sovereign peoples, the argument is, either, that Aboriginal peoples (either at the time of treaty-making or now) were not suf- ficiently 'civilized' and organized to qualify as 'sovereign' peoples, or that they had already 'lost' their sovereignty through some predestined and mysterious process such as the good providence of being 'discovered'. The conclusion to either argument is that treaties are akin to paternalistic contracts.

Of course, there is no compelling reason, according to international law, not to view treaties between Aboriginal peoples and the Crown as treaties between sovereigns, that is, as international treaties. 78 Nor does there seem to be any compelling reason for continuing to pretend that Aboriginal peoples

77. As Mr. Ovide Mercredi of the Indigenous Bar Association suggested to the Standing

Committee on Aboriginal Affairs, Minutes of Proceeding, No. 8 (24 May 1989) with respect

to education and treaty rights:

I am going beyond what the question was, but I also wanted to address the initial ques- tion that was asked about the nature of the relationship in the future. As an Aboriginal person with a Canadian citizenship, I would like to live in a country that respects me as an individual, as a member of the people I belong to, but in such a way that I do not have to beg or plead for recognition. I would like to live in a country where I do not have to justify my existence or come and plead for the right to co-existence or my right to self-determination. I would like to live in a country where there is that kind of understanding based on, as I said earlier, a relationship of consensual arrangements. (at 31)

78. It is noteworthy that a current study is being conducted by a United Nations Special Rapporteur on treaties and other agreements in the indigenous context. The Rapporteur, Mr. Miguel Martinez, will be tabling his study with the United Nations Working Group on Indi- genous Peoples in 1990. See the Report of the Working Group on its seventh session E/CN.4/Sub.2/1989/36, at 26.

(1989-1990) 6 CH.R.Y.B.

Aboriginal Peoples and the Canadian Charter

lack distinct cultures or have inferior cultures. Why is it necessary to continue to try to fit Aboriginal cultural differences and historic claims into the cate-

gories and concepts of the dominant (European) culture in some form of

equivalence in order to be acknowledged? There is a contradiction at work

in areas like human rights-that is, a contradiction between, on the one hand,

wanting to accept Aboriginal peoples as distinct peoples, and, on the other

hand, requiring that distinctness be expressed through something called

Aboriginal rights defined by Canadian law and accepted in courts whose

process and decorum reflect a different cultural system. 'Aboriginal rights' are those largely undefined rights in Part II of the

Constitution Act, 1982.7 9 It is a category of rights with severe political and

legal limitations which have been described throughout this paper: cultural

difference, judicial elitism, racism, and legalism. It is a realm of analysis

in which discussions focussing on strange expressions like 'title', 'usufruc- tory rights', 'mere promises', 'status', 'referential incorporation', 'extinguish- ment', and 'existing' take on enormous significance, even though they do

not seem to be commensurable in any way with the everyday lives or cultural systems of Aboriginal people. The frightening and frustrating thing about

the centrality of these expressions to the lives of Aboriginal peoples is that

they were thought up and imposed on those peoples by the same culture that

brought us the 'rights' category. They seem prima facie incompatible with

Aboriginal approaches to land, family, social life, personality and spiritual- ity. Yet somehow they are supposed to be helpful, existing to assist Aboriginal

peoples in their struggles to continue to practice their cultures. Scholars and

consultants are working away to produce a body of literature on just what

existing Aboriginal rights can mean and how to formulate that within the rights paradigm of a "free and democratic society."

80 It is not surprising that the most frequent and ambiguous rights claim advanced or discussed by Aboriginal peoples is self-determination or self-government. This is a pecu- liar kind of claim because, on the one hand, the 'right' claimed is 'collec-

tive' and hence fits into a pre-existing category in Aboriginal cultures. But,

on the other hand, it represents a request for the recognition of difference and for the end of cultural hegemony.

There is an important distinction between self-determination and self-

79. See section 35, supra, note 16. 80. This is not to suggest that section 35 in Part II of the Constitution Act, 1982 is affected

by section 1 in Part I of the Constitution Act, 1982. However, I would suggest that the teleol-

ogy of constitutional scholarship after 1982 is one of suggesting resolutions to constitutional

problems within the mainstream style of legal analysis. This is problematic when the constitu-

tional problems relate to Aboriginal peoples because the extent to which legal solutions are really

solutions, or the extent to which prescriptions from an institution of the dominant culture can

embrace cultural differences, is questionable.

TURPEL

38 Canadian Human Rights Yearbook

government for Aboriginal peoples. Self-determination is seen as more in keeping with cultural difference than is self-government. The granting of self- government (which has been the ultimate objective of all human rights dis- cussions in the Canadian context) implies that Aboriginal peoples, who were not previously able to govern themselves because they were not at a suffi- ciently advanced stage of civilization, can now take on some responsibility for their own affairs.8 ' This distinction is well illustrated in an American study of the history of the United States Indian policy written by V. Deloria and C. Lytle.8 2 These two scholars trace the problems with self-government in the United States, especially the paternalistic assumptions about compe- tence and civilization which underlie the position. They argue that:

Self-government ... implies a recognition by the superior political power that some meas- ure of local decision-making is necessary but that this process must be monitored very carefully so that its products are compatible with the goals and policies of the larger political power. [It] implies that ... people ... are now ready to assume some, but not all, of the responsibilities of a municipality.

8 3

Aboriginal peoples have expressed the sentiment that the association of assumption of responsibility for self-government with development is con- trary to their aims and cultural systems. Consequently, there has been a great effort internationally for the recognition of self-determination, or self- definition and (broad) structuring powers. Unfortunately, the idea of self- government is sometimes used without any sensitivity as to its historical context or political implications as is illustrated by a recent report of the Canadian Bar Association special committee on native justice.

8 4

Self-determination is viewed as a more hopeful concept, although it too has its European antecedents, because it is fluid enough to permit various arrangements between existing or recognized states and Aboriginal peoples. It is viewed by them as a concept which provides greater recognition of the cultural differences of peoples who live within enclaves defined by dominant cultures rather than simply providing a predetermined context for minority or 'ethnic' rights. Discussion and controversy at the United Nations Special Working Group on Indigenous Peoples has been over human rights violations and historic claims under international law of Indigenous peoples from

8 1. The idea that Aboriginal communities are not sufficiently advanced to control their own affairs was recognized until quite recently in the Indian Act, where, under the provisions for Band Council control over financial decisions, a Band could make laws for financial issues only when the Minister determines that they had reached a sufficient stage of 'development'.

82. V. Deloria Jr. and C. Lytle, supra, note 18. 83. Ibid., at 14. 84. See, Aboriginal Rights in Canada: An Agenda for Action (Ottawa: Canadian Bar

Association, 1988).

(1989-1990) 6 C.H.R.Y.B.

Aboriginal Peoples and the Canadian Charter

around the globe. During the past seven years, there have been six meetings of the Working Group and recently efforts have been directed at the devel- opment of a United Nations Declaration on Indigenous Rights.

8 5 Although Aboriginal Peoples have been participating quite actively in the process of development of a United Nations Declaration, once again, they are on the margins of the United Nations system. Nevertheless, certain states which are members of the United Nations have been willing to advocate the recogni- tion of Indigenous rights in an international declaration. Canada has not been one of these states.

From the Aboriginal perspective, a cornerstone of any eventual declara- tion would have to be the recognition of the right of self-determination of indigenous peoples under international law. The summary of the proceedings of the 1989 United Nations Working Group on Indigenous Peoples captures this when it states that "there was a universal call from non-governmental observers for full or increased self-determination for indigenous peoples and for them to be accorded the political identity to which they feel entitled. This would avoid the present situation in which indigenous peoples were being marginalized and protect them from political oppression." 86 There are many arguments which suggest that, even without a specific declaration, interna- tional law already recognizes the right of all Peoples (including Aboriginal Peoples) to self-determination.8 7 In Canada even the concept of self- government has been controversial and no official constitutional action imple- menting self-government has yet been taken in spite of a five-year negotia- tion process amongst First Ministers.

In my opinion, this failure to recognize cultural difference and make space for it in the constitutional structure is further evidence of the fact that the dominant culture has never recognized Aboriginal peoples as distinct peoples and cultures. I suppose that the exclusion or repression of the "Abori- ginal fact" of Canada in the present Constitution Act, 1982 in a strange way bolsters the idea that Aboriginal peoples are sovereign and distinct (but entrapped) nations. Nevertheless section 35 is there, as is section 25, and it is difficult to see what can be gained for Aboriginal peoples by advancing claims enveloped in the rhetoric of human rights. There is a difference between having 'rights' incrementally recognized, through constitutional claims, and being recognized as distinct cultures for the reasons indicated earlier in this paper.

85. See Report of the Working Group on Indigenous Peoples on its Seventh Session,

supra, note 78. 86. Ibid., at 11. 87. G. Alfredsson, "Indigenous Rights in 1988" (1988) 3 Nordic Journal of International

Law 353.

TURPEL

40 Canadian Human Rights Yearbook

What alternative to rights-based claims are available? In the pragmatic work of human rights scholars and practitioners in Canada, a discourse about litigation strategies and legal doctrines, there hardly seems to be an oppor- tunity to stop and consider these kinds of questions about Aboriginal cultural difference and the Charter, or section 35. It seems inevitable to me that legal scholars and judges will have to consider more explicitly the implications of cultural difference for their analysis of disputes. These cultural differences between Aboriginal peoples and the dominant political and legal system are critical to our thinking about the Canadian constitution. I am not yet per- suaded that they are differences which can be accommodated by the rights paradigm. My impression is that Aboriginal peoples do not advance their claims within the rights paradigm because they do not share it. So, what is to be done? In my opinion, constitutional scholars and human rights sup- porters must ponder the implications of Aboriginal cultural difference for their analysis.

88

Moreover, it is important to recognize the broader implications of the rights-based claims for Aboriginal peoples. It is difficult for a culturally dis- tinct people to define the trajectory of its own development if individuals from within or outside the culture can challenge collective decisions on the basis that they infringe their individual rights under the Charter in the Cana- dian legal system which does not understand, or give priority to collective goals. Some people may view this subjugation of Aboriginal peoples as the triumph of democracy, but it makes the preservation of a different culture and the pursuit of collective political goals almost impossible.

In Aboriginal communities where different political and spiritual tradi- tions, such as the Haudenosaunee of the Iroquois Confederates, are the guiding force of the community in spite of the imposed Indian Act system of Band Councils, recourse to an individualistic rights-based law like the Charter could result in further encroachment upon the cultural identity of the community. These challenges could take one of two forms: either a member of the community could challenge Aboriginal laws on the basis of individual rights protections in the Charter arguing that they have not been respected by their government (an internal challenge); or a non-Aboriginal

88. Clare Dalton has attempted this in "The Faithful Liberal and the Question of Diversity", (1989) 12 Harvard Women's L.J. 1, where she observes that:

It is not simply a matter of filling, finally, some previously identified and oddly persist- ent gap in one's understanding. It involves recognizing that the entire perceptual and conceptual apparatus one has previously relied on for knowledge about the world may be faulty. It involves remaking the map of the world one carries about in one's head so that the gaps appear, generating the recognition that they need to be filled. And since it is in relation to this interior map that one locates and identifies oneself, it involves being ready to meet some unfamiliar and sometimes unwelcome images of oneself. (at 1-2)

(1989-1990) 6 C.H.R.Y.B.

Aboriginal Peoples and the Canadian Charter

person could challenge the laws of an Aboriginal government on the basis that they do not conform with Charter standards (an external challenge).

In the case of an external challenge, for example, on the basis of voting or candidacy rights where a non-Aboriginal complainant argued that they could not vote or stand for elections in an Aboriginal community, a Canadian court would be given the authority to decide an important part of the future of an Aboriginal people. It would have to consider the protections afforded Aboriginal rights by section 25 of the Charter and weigh these against the individual right to vote recognized in section 3. Should Canadian courts (and non-Aboriginal judges) have authority in such cases? The critical question is do they have cultural authority? Even if they did, in light of the favoured individualistic basis of the Charter, and of the history of property rights, would a collective Aboriginal right stand a chance? As the National Chief of the Assembly of First Nations suggested to the Parliamentary Committee on Aboriginal Affairs in 1982, "as Indian people we cannot afford to have individual rights override collective rights. Our societies have never been struc- tured that way, unlike yours, and that is where the clash comes ... If you isolate the individual rights from the collective rights, then you are heading down another path that is even more discriminatory ... The Canadian Charter of Rights is in conflict with our philosophy and culture ...."89

The key in this passage is 'when you isolate.' Such analysis in cases involv- ing Charter application or interpretation and Aboriginal peoples is completely inappropriate culturally speaking.

The other possible challenge, the internal challenge, is conceivable where a member of an Aboriginal community who feels dissatisfied with a particular course of action the Aboriginal government has taken, or envisages taking, turns to the Charter for the recognition of a right. This is an equally, if not more, worrisome prospect. This kind of challenge would be a dangerous open- ing for a ruling by a Canadian court on individual versus collective rights within an Aboriginal community. It would also break down community methods of dispute-resolution and restoration, or place limits on the re- establishment of such methods. Here, the example of the Indian Civil Rights Act9° in the United States is instructive. This act, based on the idea that pro- tections from the American Bill of Rights should be extended to Aboriginal communities, along with the establishment of tribal courts which would have the same function as American courts, has been greatly criticized by Aboriginal people as imposing upon tribes culturally inappropriate means of dealing with disputes.

89. House of Commons Standing Committee on Aboriginal Affairs Minutes and Proceed- ings, Evidence no. 58 (29 September 1982).

90. U.S., Statutes at Large, 82:77.

TURPEL

42 Canadian Human Rights Yearbook

Deloria and Lytle suggest, in this regard, that:

In philosophical terms, it is much easier to describe the impact of the ... Act. Traditional Indian society understood itself as a complex of responsibilities and duties. The [Act] merely transposed this belief into a society based on rights against government and elim- inated any sense of responsibility that the people might have felt for one another. Granted that many of the customs that made duties and responsibilities a serious matter of indi- vidual action had eroded badly in the decades since the tribes had agreed to move to reservations, the impact of the [Act] was to make these responsibilities impossible to perform because the act inserted the tribal court as an institution between the people and their responsibilities. People did not have to confont one another before their commu- nity and resolve their problems; they had only to file suit in tribal court.

91

The lessons of the American Indian Civil Rights Act, and of the estab- lishment of tribal courts, are important ones in light of the Charter. If internal disputes are brought before Canadian courts, it will seriously undermine the Aboriginal styles of dispute resolution based on, for example, teachings of responsibility (like the Four Directions), and impose a system of individual- based rights. It would also have the effect of encouraging people to go out- side the community and its customs, to settle disputes in formal courts, instead of dealing with problems within the community. This is particularly threaten- ing, perhaps even ethnocidal, to Aboriginal peoples who are on the brink of cultural destruction because of the legacy of colonialism and paternalism under the Indian Act. The possibility of having that unacceptable (Indian Act) bureaucratic regime of supervision and control replaced by a judicial one of review and adjustment under the Constitution Act, 1982 hardly seems like a change at all. Replacing one culturally insensitive master with another may be a change; but it is a change solely for the sake of change which will only continue the repression of Aboriginal peoples.

This might sound like a hard line to take, especially when one considers the extent to which customs and traditional methods of governance and dispute-resolution have been dislodged in Aboriginal communities after more than a century of life under the Indian Act. Moreover, the experience of a century of gender-based discrimination with respect to Indian status and the Indian Act, where discrimination was employed as a technique of assimila- tion up until the 1985 amendments to the Indian Act (many see the gender- based discriminatory provisions as having continuing effect despite the amendments), has frightened many Aboriginal communities. 92 Male- dominated Band Councils frequently sided with the Canadian government against disenfranchised women in the belief that to do otherwise would under-

91. Deloria and Lytle, supra, note 18 at 213. 92. See K. Jamieson, Indian Women and the Law in Canada: Citizens Minus, (Ottawa:

Advisory Council on the Status of Women, 1978).

(1989-1990) 6 C. H.R.Y. B.

Aboriginal Peoples and the Canadian Charter

mine the Crown's trust responsibility for Aboriginal peoples. As a conse- quence, women were forced to go outside the community to resolve the injus- tices of gender-discrimination. Cases were brought under the Canadian Bill of Rights and eventually under the United Nations Covenant on Civil and Political Rights. 9 3 Changes were made to the Indian Act, 94 but many of the after-effects of gender discrimination still plague Aboriginal communities, including problems associated with women returning to communities, taking up residence, and seeking to educate their children, share in social services, and receive per capita payments from resource exploitation on Aboriginal lands. These are profound conflicts for cultures which are, in most cases, matrilineal in structure.

Communities have been slow to address questions related to the after- math of gender-discrimination in the Indian Act, and the mechanisms to resolve disputes according to customary practices are not necessarily avail- able. This has placed a great deal of pressure on Aboriginal communities which could lead to cases being taken to Canadian courts pursuant to the Charter for protection of rights against encroachment by Aboriginal govern- ments. Concern over what this could involve, given the individual-based notions of rights under Canadian law, and in light of lessons derived from the United States experience with the Indian Civil Rights Act, has encour- aged Aboriginal women to develop model laws in areas like 'citizenship' and human rights; laws which are based, as far as possible, on inherent First Nation jurisdiction while leaving wide scope for tailoring to the customary practices of each people.

95

In 1986, the Native Women Association of Canada began to develop a First Nations human rights and responsibilities law in order to discourage internal challenges of Aboriginal government actions in Canadian courts under the Charter. It appears that this Code, which, at the time of writing is still in the draft stages, will be based on the inherent jurisdiction of First Nations to make laws for their peoples. It will include a very loosely and generously worded part on human rights and responsibilities, corresponding to four groups of rights and responsibilities which come from the teachings of the Four Directions. The following responsibilities and rights are paired: (i) strength-cultural rights, (ii) kindness-social rights, (iii) sharing- economic rights, (iv) trust-political and civil rights.

96

93. Lovelace v. Canada, [1982] 1 C.N.L.R. 3. 94. Bill C-31, June, 1985. 95. Native Women's Association of Canada, A First Nations Human Citizenship Code

(1986). 96. Native Women's Association of Canada, "Draft First Nations Human Rights Law

1989," on file with the author.

TURPEL

44 Canadian Human Rights Yearbook

The provisions on dispute-resolution in the model law developed by the Native Women's Association provide options for communities to consider in creating a law which fits its customs and aspirations. These include: media- tion, the establishment of a Human Rights Committee, and a Council of Elders. Also included are suggestions for methods to deal with conflicts on a regional basis (e.g. an Iroquois or Ojibway council of elders). It is hoped that the work of the Association will contribute to the development of com- munity laws amongst Aboriginal people, that the result will be less formal community solutions, and that individual members of First Nations com- munities will not have to go outside their communities (to Canadian courts) to seek redress. It seems that the development of community codes is the best available interim solution to the most pressing problems within com- munities and to the threat of the (further) imposition of the human rights paradigm on Aboriginal communities.

Nevertheless, the work of the Native Women's Association of Canada only addresses the problem of internal challenges based on the Charter by members of First Nations communities. It does not attempt to deal with the other areas of concern such as external challenges brought by non-Aboriginal peoples pursuant to the Charter which call into question the collective basis of Aboriginal communities. Any case which presents a Canadian court with the opportunity to expound a rights analysis will be an opportunity to under- mine the recognition of Aboriginal peoples as fundamentally different cultures. These cases permit the court to extend their jurisdiction over Abori- ginal peoples, and to make critical value choices under the guise of Cana- dian law. Such decisions will not be that different from the imposed system of rule under the Indian Act, except that in Charter cases the court can cloak its decisions in the rhetoric of democratic freedom, equality, emancipation, multiculturalism and human rights for 'all Canadians.'

It is difficult for me to see any potential for sensitivity to the cultural differences of Aboriginal peoples in the constitutional rights paradigm. I could imagine a strong defensive argument being developed under section 25 to the effect that, in light of cultural differences, Aboriginal peoples are immune from Charter jurisprudence or interpretation. The Charter, according to this argument, does not extend to them because of the incommensurability of the conceptual framework of the rights paradigm. I find it impossible to be reconstructive or instrumental in my analysis and such has not been my pur- pose. The rights paradigm and interpretive context of Canadian constitutional law is so unreceptive to cultural differences that, as a result, it is oppressively hegemonic in its perception of its own cultural authority. There is no shortage of the variety of constitutional scholarship which suggests variations of Charter arguments. My intention has been to focus attention on ignorance, insensitivity, and incommensurability in legal scholarship and practice in this area.

(1989-1990) 6 C.H.R.Y.B.

Aboriginal Peoples and the Canadian Charter

(iii) CULTURE HEGEMONY AND LEGAL DISCOURSE

While my analysis has focussed primarily on the significance of cultural difference in constitutional, and especially, as relating to the Canadian Charter, legal analysis, I am also interested in the broader implications of the line of criticism pursued here. The opening of a space for considering cultural differences in Canadian legal analysis involves the loss of a cultural monopoly over the generation of law and its interpretation, a loss of univer- sality which, undoubtedly, sits uncomfortably with lawyers committed to the rule of law. If irreconcilable conceptions of law exist within the imagined confines of one 'state', what is to be done? One possibility is the denial of cultural difference which would continue oppression through the maintenance of the cultural monopoly or hegemony. There is also the possibility for toler- ation of differences and the recognition of autonomous or incommensurable communities. This choice has profound implications for the style of legal analysis and judging now practiced. If nothing else, it forces us to question the cultural legitimacy and authority of the judiciary as an institution com- petent to choose between and among varying cultural images. For a judge, a situation of cultural difference should be and must be a situation of not knowing which direction to go, a situation involving choices about reason- ing which may not be defensible or acceptable. It involves episodes of undecid- ability, self-judgment, and uncertainty. It would involve acknowledging the imperative of admitting mistakes and recognizing ignorance.

This type of criticism of the Charter and legal interpretation exposes and reinforces the extent to which legal knowledge and processes are localized or contingent, both as matters of history and culture. As Clifford Geertz has argued:

Law, I have been saying, somewhat against the pretensions encoded in woolsack rhetoric, is local knowledge; local not just as to place, time, class, and variety of issue, but as to accent-vernacular characterizations of what happens connected to imaginings of what can. It is this complex of characterizations and imaginings, stories about events cast in imagery about principles, that I have been calling a legal sensibility.

97

So much for the supreme law of Canada?

97. Clifford Geertz, supra, note 67, at 215.

TURPEL