Hostname: page-component-cd9895bd7-hc48f Total loading time: 0 Render date: 2024-12-25T19:18:35.014Z Has data issue: false hasContentIssue false
  • English
  • Français

Mandates of the State: Canadian Sovereignty, Democracy, and Indigenous Claims

Published online by Cambridge University Press:  20 July 2015

Toby Rollo
Get access

Extract

Indigenous peoples encounter restrictions on their modes of reasoning and account-giving within democratic sites of negotiation and deliberation. Political theorists understand these restrictions as forms of exclusion related to what theorist Iris Young has called the ‘internal exclusion’ of subordinated perspectives and theorist James Bohman has referred to as the ‘asymmetrical inclusion’ of such perspectives. ‘Internal exclusion’ refers to ways in which actors are formally accepted into decision-making processes, only to find their perspectives disqualified due to informal but no less pervasive criteria of exclusion. ‘Asymmetrical inclusion’ refers to the undue burdens placed on marginalized peoples to persuade dominant communities. It is argued in light of these problems that more inclusive institutions as well as the cultivation of an ethos of receptivity will be necessary for genuine inclusion. I argue that this focus on enriching dialogue can mischaracterize the nature of disagreement between Indigenous and non-Indigenous peoples.

Disagreement does not only arise between opinions or discourses that can be articulated and judged, but also at a deeper level, between the background assumptions against which practices of articulation and judgment are understood. Territorial state sovereignty, I argue, is a background understanding that can render sites of democratic negotiation inhospitable to Indigenous claims. I conclude that when thinking through Indigenous equality and autonomy, theorists should be attuned to the sites and conditions of dialogue that might serve to reinscribe relations of domination and exclusion.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 27 , Issue 1 , January 2014 , pp. 225 - 238
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2014 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Special thanks to Melissa Williams, Jim Tully, John Borrows, Avigail, Eisenberg, Glen Coulthard, and Stephanie Irlbacher-Fox for their insightful comments. I would also like to extend my thanks to participants of the 2012 Indigenous Peoples and Governance conference.

1. Young, Iris Marion, Inclusion and Democracy (Oxford: Oxford University Press, 2000) at 75.Google Scholar

2. Bohman, James, Public Deliberation: Pluralism, Complexity, and Democracy (Cambridge: MIT Press, 2000) at 126.Google Scholar

3. In the context of Canada, for instance, Dale Turner observes that a commitment to “being a progressive democratic society … demands that Aboriginal peoples be included in the dialogue over the meaning of their rights.” In Turner, Dale, This is Not a Peace Pipe: Towards a Critical Indigenous Philosophy (Toronto: University of Toronto Press, 2006) at 121.Google ScholarPubMed See also Curry, Steven, Indigenous Sovereignty and the Democratic Project (Burlington: Ashgate, 2004)Google Scholar; Ivanitz, Michele, “Democracy and Indigenous Self-Determination” in Carter, April & Stokes, Geoffrey, eds, Democratic Theory Today: Challenges for the 21st Century (Cambridge: Polity Press, 2002) 121.Google Scholar

4. Ivison, Duncan, Post Colonial Liberalism (Cambridge: Cambridge University Press, 2002) at 151.Google Scholar

5. See Borrows, John, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010)Google Scholar. Borrows is optimistic about the potential of section 35, but he nevertheless observes that to date the courts have not only “provided little guidance” (at 201) on the meaning of Aboriginal rights, but also that “the provisions in section 35 are increasingly used to justify government infringements of Aboriginal rights” (at 199). See also Ladner, Kiera, “Take 35: Reconciling Constitutional Orders” in Timpson, Annis May, ed, First Nations, First Thoughts: The Impact of Indigenous Thought in Canada (Vancouver: UBC Press, 2009)Google Scholar. Like Borrows, Ladner holds out hope for the potential usefulness of section 35, but in her assessment of cases appealing to it thus far she observes that “the judiciary has proved to be ineffective in (1) providing Indigenous peoples with the opportunities and means to decolonize themselves and their relationship with the colonial state and (2) addressing competing constitutional orders and the resulting disputes of sovereignty” (284-85).

6. Eisenberg, Avigail, “Domestic and International Norms for Assessing Indigenous Identity” in Eisenberg, Avigail & Kymlicka, Will, eds, Identity Politics in the Public Realm: Bringing Institutions Back In (Vancouver: UBC Press, 2011) 137 at 138Google Scholar.

7. This entailed exclusion from electoral democracy as well as from legal recourse. A classic example of exclusion from a court case involving Indigenous interests is St. Catherine’s Milling and Lumber Co v R, 13 SCR 577.Google Scholar

8. See Ladner, Kiera, “The Alienation of Nation: Understanding Aboriginal Participation” (2003) 5:3 Electoral Insight at 21–26.Google Scholar

9. Iris Marion supra note 1.

10. Ibid.

11. Bohman, supra note 2.

12. See Gutmann, Amy and Thompson, Dennis Frank, Democracy and Disagreement (Cambridge: Belknap Press, 1998)Google Scholar. “The principles of accommodation are based on a value that lies at the core of reciprocity and deliberation in a democracy—mutual respect. It is what makes possible cooperation on fair terms. Like toleration, mutual respect is a form of agreeing to disagree. But mutual respect demands more than toleration. It requires a favourable attitude, and constructive interaction with, the person with whom one disagrees” (79).

13. Vermette has outlined a related set of colonial patterns: (1) denying access and participation (e.g., St. Catherine’s Milling, in Canada, and Johnson v M’Intosh, in the US); (2) distortion by virtue of standards of legal language and legal interpretation; (3) contradictions of contemporary precedent with older laws, (4) the exclusion of Indigenous modes of reason and reasoning. Vermette concludes that “colonial courts remain an inappropriate locality to settle Aboriginal and Crown disagreements.” Vermette, D’Arcy, “Colonialism and the Sup Pression of Aboriginal Voice” (2009) 40:2 Ottawa L Rev 225 at 231Google Scholar. See also Manley-Casimir, Kirsten, “Creating Spaces for Indigenous Storytelling in Courts” (2012) 27:2 CJLS CJLS.CrossRefGoogle Scholar

14. For an example of courts admitting oral histories see Delgamuukw v British Columbia, [1997] 3 SCR 1010.Google Scholar

15. Civilizational and cultural ‘tests’ of Indigenous claims feature in Baker Lake v Minister of Indian Affairs and Northern Development, [1979] 1 FC 487 Google Scholar; Guerin v The Queen, [1984] 2 SCR 335 Google Scholar; and R v Sparrow, [1990] 1 SCR 1075.Google Scholar

16. Napoleon, Val, “ Delgamuukw: A Legal Straightjacket for Oral Histories?” (2005) 20:2 CJLS 123 at 137.CrossRefGoogle Scholar

17. Taylor, Charles, “The Politics of Recognition” in Gutmann, A, ed, Multiculturalism: Examining the Politics of Recognition (Princeton: Princeton University Press, 1992) at 25.Google Scholar

18. Daly, Richard, Our Box Was Full: An Ethnography for the Delgamuukw Plaintiffs (Vancouver: UBC Press, 2005) 5.Google Scholar See also, Olson, Kevin, “Legitimate Speech and Hegemonic Idiom: The Limits of Deliberative Democracy in the Diversity of its Voices” (2010) 59:3 Political Studies 527.CrossRefGoogle Scholar

19. Daly, supra note 18 at 4.

20. For an analysis of how the neo-liberal economic doctrines affect Indigenous claims, see MacDonald, Fiona, “Indigenous Peoples and Neoliberal ‘Privatization’ in Canada: Opportunities, Cautions and Constraints” (2011) 44:2 Can J Pol Sci 257.CrossRefGoogle Scholar

21. Nadasdy, Paul, Hunters and Bureaucrats: Power, Knowledge, and Aboriginal-State Relations in the Southwest Yukon (Vancouver: UBC Press, 2004) at 223.Google Scholar

22. Ibid at 248.

23. Napoleon, supra note 16 at 125. Vermette chastises the Delgamuukw court for paying lip service to RCAP’s warning against judging oral history according to a fact finding mandate only to turn around and commit that same error. Vermette, supra note 9 at 241-42.

24. Vermette, supra note 13 at 240.

25. Ibid.

26. Macklem, Patrick, “First Nations Self-Government and the borders of the Canadian Legal Imagination” (1991) 36:2 McGill L Rev 382.Google Scholar

27. Eisenberg, supra note 6 at 147.

28. Fanon, Frantz, Black Skin, White Masks. (New York: Grove Press, 1967).Google Scholar

29. Samson, Colin, A Way of Life That Does Not Exist: Canada and the Extinguishment of the Innu (London: Verso Press, 2003).Google Scholar

30. Duran, Eduardo & Duran, Bonnie, Native American Postcolonial Psychology (New York: SUNY Press, 1995).Google Scholar

31. Alfred, Taiaiake, Wasáse: Indigenous Pathways of Action and Freedom (Toronto: University of Toronto Press, 2005).Google Scholar

32. Coulthard, Glen, “Subjects of Empire: Indigenous Peoples and the ‘Politics of Recognition’ in Canada” (2007) 6 Contemporary Political Theory 437 CrossRefGoogle Scholar.

33. Ibid at 444.

34. Tully, James, Public Philosophy in a New Key V. II (Cambridge: Cambridge University Press, 2008) at 22.Google Scholar

35. Turner, supra note 3.

36. For an account of the centrality of land to Indigenous forms of legal, political, and cultural life see Alfred, Taiaiake & Corntassel, Jeff, “Being Indigenous: Resurgences against Contemporary Colonialism” (2005) 40:4 Government and Opposition 597.CrossRefGoogle Scholar

37. Borrows, John, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002) 99 Google Scholar

38. Asch, Michael, “Calder and the Representation of Indigenous Society in Canadian Jurisprudence” in Webber, Jeremy, Foster, Hamar & Raven, Heather, eds, Let Right be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights (Vancouver: UBC Press, 2007) 101 at 109Google Scholar.

39. See, for example, Dijk, Teun Van, Discourse and Context: A Sociocognitive Approach (Cambridge: Cambridge University Press, 2010).Google Scholar

40. Tully, supra note 34 at 245.

41. Tully, James, Public Philosophy in a New Key vol I (Cambridge: Cambridge University Press, 2008) at 34 Google Scholar; see also Tully, supra note 28 at 271.

42. Tully, supra note 34 at 116.

43. Ibid at 245 [emphasis added].

44. There is, of course, no guarantee that Indigenous peoples will be willing or able to provide an account that is intelligible to officials. For a discussion of this, see Scott, James, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven: Yale University Press, 1998) at 313.Google Scholar

45. R v Van der Peet [1997] 2 SCR 507.Google Scholar

46. McRanor, Shauna, “The Imperative of ‘Culture’ in a Colonial and de facto Polity” in Eisenberg, Avigail, ed, Diversity and Equality: The Changing Framework of Freedom in Canada (Vancouver: UBC Press, 2006) 54 at 68.Google Scholar

47. R v Sparrow (1990), 70 D.L.R. (4th) 385 (SCC) [emphasis added].Google Scholar

48. McNeil, Kent, Emerging Justice: Essays on Indigenous Rights in Canada and Australia (Saskatoon: University of Saskatchewan Native Law Centre, 2001) at 100-01Google Scholar.

49. Ibid at 101.

50. Tully, James, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995) at 78.CrossRefGoogle Scholar

51. Valadez, Jorge M, “The Implications of Incommensurability for Deliberative Democracy” in Kahane, David, Weinstock, Daniel, Leydet, Dominique, & Williams, Melissa, eds, Deliberative Democracy in Practice (Vancouver: UBC Press, 2010) 155 at 163Google Scholar.

52. Ibid at 164.

53. Schaap, Andrew, “The Absurd Proposition of Aboriginal Sovereignty” in Schaap, Andrew, ed, Law and Agonistic Politics (Aldershot: Ashgate, 2009) 209 at 217Google Scholar.

54. Asch, Michael & Macklem, Patrick, “Aboriginal Rights and Canadian Sovereignty: An Essay on R. v. Sparrow” (1991) 29:2 Alta L Rev 499 at 507Google Scholar.

55. Macklem, supra note 26 at 394.

56. Irlbacher-Fox, Stephanie, Finding Dahshaa: Self-Government, Social Suffering, and Aboriginal Policy in Canada (Vancouver: UBC Press, 2009) at 105-06 [emphasis added].Google Scholar

57. Nadasdy, supra note 15 at 268 [emphasis added].

58. Ibid at 242.

59. McNeil, Kent & Roness, Lori Ann, “Legalizing Oral History: Proving Aboriginal Claims in Canadian Courts” (2000) 39:3 Journal of the West 66 at 73.Google Scholar

60. For different ranges of incommensurability, some of which can be overcome and some of which cannot, see Valadez, supra note 51 at 156.

61. Ibid at 158.

62. Irlbacher-Fox, supra note 56 at 18.

63. Ibid at 19; see also Kapferer, Bruce, “Bureaucratic Erasure Identity, Resistance, and Violence— Aborigines and a Discourse of Autonomy in a North Queensland Town” in Miller, Daniel, ed, Worlds Apart: Modernity through the Prism of the Local (New York: Routledge, 1995) 69.Google Scholar

64. Irlbacher-Fox, supra note 56 at 75.

65. Ibid.

66. Ibid.

67. Young, Iris Marion, “Communication and the Other: Beyond Deliberative Democracy” in Benhabib, Seyla, ed, Democracy and Difference: Contesting the Boundaries of the Political (Princeton: Princeton University Press, 1996) 120 at 123CrossRefGoogle Scholar.

68. Ibid at 129.

69. Young, Iris Marion, Intersecting Voices: Dilemmas of Gender, Political Philosophy, and Policy (Princeton: Princeton University Press, 1997) at 70.CrossRefGoogle Scholar

70. See Arendt, Hannah, Hannah Arendt: Lectures on Kant’s Political Philosophy, Beiner, Ronald, ed (Chicago: University of Chicago Press, 1982).CrossRefGoogle Scholar

71. Beiner, Ron & Nedelsky, Jenny, Judgment, Imagination, and Politics: Themes from Kant and Arendt (New York: Roman and Littlefeld, 2001) at xii.Google Scholar

72. Nedelsky, Jenny, “Communities of Judgment and Human Rights” (2005) 1 Theor Inq L 245 at 256.Google Scholar

73. Beiner & Nedelsky, supra note 71 at xiii.

74. Nedelsky, supra note 72 at 362.

75. Ibid.

76. Irlbacher-Fox, supra note 48 at 74.

77. Young, supra note 1 at 255.

78. Borrows, John, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010) at 165-66Google Scholar.

79. Young, supra note 7 at 221.

80. Ibid at 222.

81. See Henderson, James Youngblood, “Empowering Treaty Federalism” (1994) 58 Sask L Rev 276 Google Scholar. See also Tully, supra note 41 at 137.

82. Napoleon, supra note 16 at 151.

83. Ibid at 152.

84. See, for example, Warren, Mark, “Voting with Your Feet: Exit-based Empowerment in Democratic Theory” (2011) 105:4 Am Pol Science Rev 683 CrossRefGoogle Scholar.