International Journal of Canadian Studies / Revue internationale d

Editorial Board / Comité de rédaction
Editor-in-Chief Rédacteur en chef
Kenneth McRoberts, York University, Canada
Associate Editors Rédacteurs adjoints
Isabel Carrera Suarez, Universidad de Oviedo, Spain
Carolle Simard, Université du Québec à Montréal, Canada
Robert S. Schwartzwald, University of Massachusetts, U.S.A.
Managing Editor Secrétaire de rédaction
Guy Leclair, ICCS/CIEC, Ottawa, Canada
Advisory Board / Comité consultatif
Irene J.J. Burgers, University of Groningen, The Netherlands
Patrick Coleman, University of California/Los Angeles, U.S.A.
Enric Fossas, Universitat Autonoma de Barcelona, España
Lois Foster, La Trobe University, Australia
Fabrizio Ghilardi, Università di Pisa, Italia
Teresa Gutiérrez-Haces, Universidad Nacional Autónoma de México, Mexico
Eugenia Issraelian, Russian Academy of Sciences, Russia
James Jackson, Trinity College, Republic of Ireland
Jean-Michel Lacroix, Université de Paris III/Sorbonne Nouvelle, France
Denise Gurgel Lavallée, Universidade do Estado da Bahia, Brésil
Eugene Lee, Sookmyung University, Korea
Erling Lindström, Uppsala University, Sweden
Ursula Mathis, Universität Innsbruck, Autriche
Amarjit S. Narang, Indira Gandhi National Open University, India
Heather Norris Nicholson, University College of Ripon and York St. John,
United Kingdom
Satoru Osanai, Chuo University, Japan
Vilma Petrash, Universidad Central de Venezuela-Caracas, Venezuela
Danielle Schaub, University of Haifa, Israel
Sherry Simon, Concordia University, Canada
Wang Tongfu, Shanghai International Studies University, China
2

International Journal of Canadian Studies
Revue internationale d’études canadiennes
14, Fall/Automne 1996
Citizenship and Rights
La citoyenneté et les droits
Table of Contents/Table des matières
Kenneth McRoberts
Introduction/Présentation ..........................5
Claude Denis
Aboriginal Rights In / And Canadian Society: A Syewen Case Study. ..13
David Schneiderman
Theorists of Difference and the Interpretation of Aboriginal and Treaty
Rights ...................................35
Richard Sigurdson
First Peoples, New Peoples and Citizenship in Canada ..........53
Gilles Bourque et Jules Duchastel
Les identités, la fragmentation de la société canadienne et la
constitutionnalisation des enjeux politiques ................77
Francisco Colom-González
Dimensions of Citizenship: Canada in Comparative Perspective .....95
Jane Jenson and Susan D. Phillips
Regime Shift: New Citizenship Practices in Canada ...........111
Martin J. Morris and Nadine Changfoot
The Solidarity Deficit: The Rise of Neo-liberalism and the Crisis of
National Unity ..............................137
Fraser Valentine and Jill Vickers
“Released from the Yoke of Paternalism and ‘Charity’”: ‘Citizenship
and the Rights of Canadians with Disabilities ..............155
Robert C. Vipond
Citizenship and the Charter of Rights: The Two Sides of
Pierre Trudeau ..............................179
C. Michael MacMillan
Rights In Conflict: Contemporary Disputes Over Language Policy in
Quebec ..................................193

Donald A. Desserud
The Exercise of Community Rights in the Liberal-Federal State:
Language Rights and New Brunswick’s Bill 88 .............215
Open topic / Article hors-thème
Michael Lusztig and Patrick James
Constitutional Reform and the Free Trade Agreement in Canada:
Political Entrepreneurship and the Quest for Realignment. .......239
Review Essays / Essais critiques
Samuel V. LaSelva
Three Encounters with Trudeau’s Canada ................259
Frank Davey
Destabilizing the Anthology .......................265
Pierre L’Hérault
Figures de l’immigrant et de l’Amérindien dans le théâtre québécois
moderne .................................273

Introduction
In recent decades, Canadians have
engaged in an increasingly heated
debate over rights and the meaning
of Canadian citizenship. At the
heart of this debate is an argument
over whether Canadians can and
should share a common set of
rights and a single,
undifferentiated notion of
citizenship. Beyond that, should
rights be conceived in social and
economic terms as well as along
more conventional legal and
political lines? What status should
be accorded to linguistic rights?
And should rights be exercised by
communities as well as
individuals? These and other
issues are elucidated and debated
in the rich inventory of articles
that follows.
The first two articles focus on the
rights of Aboriginal peoples
insisting that they are distinctive
from those of other Canadians, and
must be recognized accordingly. In
reconstructing a British Columbia
court case, Claude Denis shows
how the Canadian judicial system
and conceptions of justice can
overwhelm distinctive Aboriginal
practices and, in the process,
collide with Aboriginal rights.
David Schneiderman argues that
Aboriginal claims to justice and
self-government cannot be
fathomed by theories of difference
since they are not equivalent to the
claims of other subordinate
groups, nor can they be resolved
within the framework of common
law.
Présentation
Au cours des dernières décennies, les
Canadiennes et les Canadiens ont été
de plus en plus absorbés par le débat
qui porte sur les droits et la
signification de la citoyenneté
canadienne. Au cœur de ce débat se
trouve un point en litige : les
Canadiennes et les Canadiens
peuvent-ils et doivent-ils partager un
ensemble commun de droits et une
notion unique et indifférenciée de la
citoyenneté? En outre, doit-on
concevoir les droits en termes socioéconomiques
en plus de les concevoir
en termes plus conventionnels, c’està-dire
juridiques et politiques? Quel
statut devraient avoir les droits
linguistiques? Et les droits devraientils
être exercés à la fois par les
communautés et par les individus?
Ces questions et d’autres encore sont
éclaircies et débattues dans le riche
inventaire d’articles qui suit.
Les deux premiers articles portent sur
les droits des peuples autochtones et
insistent sur le fait que ces droits
doivent être perçus de façon distincte
de ceux des autres Canadiennes et
Canadiens et reconnus comme tels.
Dans sa reconstruction d’un cas de
jurisprudence de la Colombie-
Britannique, M. Claude Denis
démontre comment le système
judiciaire canadien et les concepts de
justice au pays peuvent submerger les
pratiques distinctes des autochtones
et, par le fait même, entrer en conflit
avec les droits de ces derniers. Pour
sa part, M. David Schneiderman
démontre que les revendications des
Autochtones à leur propre système de
justice et à leur autonomie
gouvernementale ne peuvent être
comprises dans le cadre des théories
de la différence étant donné qu’elles
International Journal of Canadian Studies / Revue internationale d’études canadiennes
14, Fall/Automne 1996

IJCS / RIÉC
Turning to the question of citizenship
and the possibility of a universalist
Canadian citizenship, Richard
Sigurdson explores the implications
of First Peoples’ conceptions of
identity. He draws a parallel between
their demands for a differentiated
notion of citizenship and those of
“New Peoples.” At the same time, he
fears that recognition of group claims
could subvert the idea of civic
community. Nonetheless, based on
their historical survey of identities in
Canada, Gilles Bourque and Jules
Duchastel argue for outright
recognition of the Quebec and
Aboriginal nations. Only through the
construction of a multinational state
can Canada escape the consequences
they perceive in the notion of a
multicultural Canada, such as an
undue stress upon ethnicity and
society’s fragmentation into a
multiplicity of groups. Finally, by
comparing Canada’s conception of
citizenship to that of other countries,
Francisco Colom-González
highlights the distinctiveness of its
focus on multiculturalism. After
tracing the nation-building objectives
that produced multiculturalism, he
argues that the results are
“inconclusive” and notes the
continued growth of identification
with Quebec.
Beyond the recognition (or denial) of
national and cultural differences
within the population, notions of
Canadian citizenship have entailed
the recognition of political and social
rights commonly held by all citizens.
Jane Jenson and Susan Phillips show
how the postwar federal government
elaborated a concept of Canadian
citizenship that emphasized
democratic rights and a commitment
to social justice. The variety of
measures it adopted culminated in the
6
n’équivalent pas aux revendications
des autres groupes subordonnés et
qu’elles ne peuvent non plus être
résolues dans le contexte de la
common law.
Intéressé à la question de la
citoyenneté, et surtout de savoir s’il
peut y avoir une citoyenneté
canadienne universelle, M. Richard
Sigurdson explore les répercussions
du concept de « Premières
nations » en matière d’identité. Il
trace un parallèle entre leur
réclamation d’une notion de
citoyenneté distincte et celle des
« néo-Canadiens ». Par la même
occasion, il s’inquiète du fait que la
reconnaissance des revendications
collectives puisse miner le concept
de communauté civique. Par
ailleurs, à la lumière de leur
enquête historique sur les identités
au Canada, MM. Gilles Bourque et
Jules Duchastel insistent sur la
reconnaissance illico des nations
québécoise et autochtones. C’est
seulement par la construction d’un
État multinational que le Canada
peut échapper aux conséquences
qu’ils attribuent à la notion de
multiculturalisme canadien,
notamment un stress indu sur
l’ethnicité et une fragmentation de
la société en une multiplicité de
groupes. Enfin, en comparant le
concept de citoyenneté du Canada à
celui d’autres pays, M. Francisco
Colom-González illustre à quel
point l’accent canadien sur le
multiculturalisme est distinctif.
Après avoir retracé les objectifs de
développement d’une nation qui
ont mené au multiculturalisme, il
allègue que cette démarche a eu des
résultats « inconcluants » et note la
croissance continue de
l’identification au Québec.

Charter of Rights and Freedoms.
Yet, this “citizenship regime” now
conflicts with the federal
government’s conversion to neoconservatism.
Citizenship can no
longer protect Canadians against
life’s hardships and groups that
once received formal state
support, such as women’s
organizations, are redefined as
“special interests.”
By the same token, Martin Morris
and Nadine Changfoot
demonstrate how the federal
government, in abandoning the
notion of social citizenship, left
federalist forces ill-equipped to
combat sovereignty during the
1995 Quebec referendum. At the
same time, they speculate on the
possible impact of neo-liberalism
upon the PQ government’s
capacity to articulate an attractive
sovereigntist project.
Still, even the expansive notions
of social citizenship were slow to
respond to the claims of one
specific category of
Canadians—the disabled. Fraser
Valentine and Jill Vickers trace
the federal government’s halting
steps in responding to the claims
of the disabled, as citizens, and
explore the likely impact of
current cutbacks in state spending.
Returning to the question of rights,
three articles address a type of
right largely absent from debate in
many countries yet very prominent
in contemporary recent Canadian
politics: language rights. Robert
Vipond shows how Pierre Trudeau
sought to make language rights an
important component of the rights
of Canadian citizens, partly to
strengthen citizenship as a sense
of belonging. Yet, as he
Citizenship and Rights
La citoyenneté et les droits
Au-delà de la reconnaissance (ou du
refus) des différences nationales et
culturelles au sein de la population,
les notions de citoyenneté canadienne
ont nécessité la reconnaissance des
droits politiques et sociaux qu’ont en
commun l’ensemble des citoyens et
des citoyennes. M mes Jane Jenson et
Susan Phillips démontrent comment,
durant les années d’après-guerre, le
gouvernement fédéral a élaboré un
concept de citoyenneté canadienne
qui insistait sur les droits démocratiques
et sur un engagement envers la
justice sociale. Il a adopté tout un
train de mesures, aboutissant à la
Charte des droits et libertés. Pourtant,
ce « régime de la citoyenneté » est
maintenant contredit par le virage
néo-conservateur du gouvernement
fédéral. La citoyenneté ne peut plus
offrir de protection contre les
difficultés de la vie et les groupes qui
bénéficiaient auparavant de l’appui
de l’État, notamment les
organisations féministes, sont
redéfinis comme des « groupes
d’intérêts spéciaux ».
Incidemment, M. Martin Morris et
M me Nadine Changfoot démontrent
comment en abandonnant la notion
de citoyenneté sociale le
gouvernement fédéral a laissé les
forces fédéralistes mal équipées pour
lutter contre la souveraineté durant la
campagne référendaire québécoise de
1995. En même temps, les auteurs
émettent des hypothèses quant aux
répercussions possibles du néolibéralisme
sur la capacité du
gouvernement québécois d’articuler
un projet de souveraineté attrayant.
Cependant, même une notion élargie
de la citoyenneté sociale ne
comprenait pas d’emblée les
revendications d’une catégorie
particulière de la population
canadienne : les personnes
7

IJCS / RIÉC
demonstrates, most Canadians were
not prepared to include language
rights among fundamental individual
rights. Indeed, some Canadians reject
them in the name of individual
rights. In the process, the Trudeau
project to reinforce Canadian
citizenship, both as bearer of rights
and as sense of belonging, was
compromised.
C. Michael MacMillan explores the
debate in Quebec over the regulation
of languages in commercial signs.
He critically analyzes approaches to
the question framed in terms of
collective rights, as well as ones
framed in terms of individual rights.
At the same time, he shows how
Francophone public opinion was
prepared to accept the amendment of
Bill 101’s original, stringent
provisions to accommodate the more
moderate provisions of Bill 86. Still,
he cautions, dispute over language
policy is bound to continue.
Finally, Donald Desserud examines
issues raised by New Brunswick’s
Bill 88, which formally recognized
the province’s two linguistic
communities. He shows how the
measure constitutes recognition of
community rights, potentially
conflicting with individual rights. At
the same time, he argues that this
community right is compromised by
the absence of mechanisms through
which the community might exercise
it.
Supplementing these articles on our
theme of “Rights and Citizenship” is
a new section of the Journal for
articles outside the issue’s theme.
Michael Luztig and Patrick James
explore the calculations that led the
Mulroney government to adopt its
proposal of U.S.-Canada Free Trade.
They show that free trade was part of
a dramatic manoeuvre of political
8
handicapées. M. Fraser Valentine
et M me Jill Vickers retracent les
méthodes étapistes par lesquelles le
gouvernement fédéral a répondu
aux demandes que lui ont adressées
les personnes handicapées, à titre
de citoyennes et de citoyens à part
entière, et étudient les répercussions
possibles de la réduction actuelle
des dépenses de l’État.
De retour à la question des droits,
trois articles abordent un type de
droits qui n’a pas été au cœur du
débat dans de nombreux pays mais
qui a occupé une place prépondérante
sur la scène politique
canadienne contemporaine : les
droits linguistiques. M. Robert
Vipond démontre comment Pierre
E. Trudeau a cherché à faire des
droits linguistiques un volet
important des droits des citoyennes
et citoyens du Canada, en partie
dans le but de consolider la
citoyenneté comme sentiment
d’appartenance. Pourtant, comme
le démontre l’auteur, la plupart des
Canadiennes et Canadiens n’étaient
pas prêts à inclure les droits
linguistiques dans les droits
humains fondamentaux. De fait,
certaines personnes au pays ont
rejeté ces droits au nom des droits
individuels. En cours de route, le
projet de M. Trudeau visant à
consolider la citoyenneté
canadienne, comme garante des
droits et sentiment d’appartenance,
a été compromis.
Pour sa part, M. C. Michael
MacMillan explore le débat au
Québec portant sur la
réglementation de la langue
d’affichage. Il affirme que les deux
pôles dans le débat (les
Francophones et les Anglophones)
ne peuvent être ramenés à un
simple conflit entre les droits

entrepreneurship in which the
Mulroney Conservatives sought to
construct a new electoral
alignment comprising Western
Canada and Quebec. Ultimately,
Western Canadian objections to
the measure designed to secure
Quebec’s loyalty—the ill-fated
Meech Lake Accord—robbed the
Conservatives of the electoral
benefits of free trade.
In the first of three review essays,
Samuel LaSelva draws upon three
recent studies to assess the impact
upon Canadian politics of Pierre
Trudeau’s concerted effort to
strengthen the sense of Canadian
citizenship, most notably through
the Charter of Rights and
Freedoms. He observes that the
resulting intensification of debate
over competing conceptions of
rights worked against Trudeau’s
“nation-building” purpose. Indeed,
LaSelva concludes that Canada’s
survival may well depend on
transcending the liberal paradigm
in which Trudeau’s project was
conceived.
In the next essay, Frank Davey
explores the continuing debate
over multiculturalism by
examining a recently published
anthology of “multicultural
Canadian literature.” All
inclusions in the volume are
presented as falling outside the
dominant “Anglo-Celtic” literary
establishment. (Francophone
writers, one might add, are
apparently not even considered
part of Canadian literature.) He
wonders whether Canada’s
multiculturality can be properly
comprehended in such restrictive
terms. Indeed, he opines that this
may be among the last of such
Citizenship and Rights
La citoyenneté et les droits
collectifs et les droits individuels. Il
démontre du même coup à quel point
l’opinion publique francophone était
prête à appuyer le remplacement de la
disposition initiale et intransigeante de
la Loi 101 par les dispositions plus
modérées de la Loi 86. Il formule
toutefois une mise en garde : le conflit
au sujet des politiques linguistiques est
appelé à se poursuivre.
Enfin, M. Donald A. Desserud
examine les préoccupations que
soulève la Loi 88 du Nouveau-
Brunswick, qui reconnaît
officiellement les deux communautés
linguistiques de cette province. Il
démontre à quel point cette mesure
constitue une reconnaissance des
droits des communautés, avec
l’éventualité de conflits par rapport
aux droits individuels. De plus, il
avance que les droits des
communautés sont compromis par
l’absence de mécanismes qui
permettent aux communautés en
question d’exercer pareils droits.
Pour compléter cette série d’articles
sous le thème « Les droits et la
citoyenneté », la RIÉC offre une
nouvelle section consacrée à des
articles qui ne portent pas sur le
thème du numéro. MM. Michael
Luztig et Patrick James explorent les
démarches calculées qui ont mené le
gouvernement Mulroney à adopter
son projet d’Accord de libre-échange
entre le Canada et les États-Unis
(ALE). Les auteurs démontrent que le
principe de libre-échange s’inscrivait
dans une entreprise politique
particulièrement audacieuse par
laquelle les troupes conservatrices de
M. Mulroney cherchaient à instaurer
une nouvelle orientation électorale
ralliant l’Ouest canadien et le
Québec. En bout de ligne, les
objections des provinces de l’Ouest à
la mesure visant à assurer la loyauté
9

IJCS / RIÉC
“Canadian multicultural
anthologies.”
In the final article, Pierre
L’Hérault explores how Quebec
drama has sought to come to terms
with the immigrant and Aboriginal
populations of Quebec. In the case
of immigrants, 1977 was a crucial
juncture: Bill 101 forced Quebec
writers to confront the increased
integration of immigrants within
the Québécois collectivity. In the
case of Aboriginal Peoples,
Quebec writers have tended to
portray them as distinct from the
Québécois, partly because of their
particular relationship with the
federal government.
In sum, with eleven articles and
three review essays on different
aspects of rights and citizenship,
along with an innovative analysis
of the Mulroney government’s
historic adoption of free trade, this
issue offers an especially rich and
stimulating overview of crucial
debates in contemporary Canada.
Kenneth McRoberts
Editor-in-Chief
10
du Québec, l’infortuné Accord du
lac Meech, ont miné les avantages
électoraux du libre-échange pour
les Conservateurs.
Dans le premier de trois essais
critiques, M. Samuel LaSelva se
base sur trois études récentes pour
évaluer les répercussions sur la
scène politique canadienne des
efforts déployés par Pierre E.
Trudeau pour consolider le
sentiment de citoyenneté
canadienne, en particulier la Charte
des droits et libertés. Il souligne
qu’il en résulta une intensification
de ce débat qui, alimenté par une
concurrence afin de faire prévaloir
divers concepts de droits, a peu
contribué à la réalisation de
l’objectif visé par M. Trudeau,
c’est-à-dire la construction de la
nation. En fait, M. LaSelva conclut
que la survie du Canada pourrait
bien dépendre de la capacité du
pays de transcender le paradigme
libéral qui a donné lieu au projet de
M. Trudeau.
Dans le second essai critique, M.
Frank Davey explore le débat
continuel en matière de
multiculturalisme en examinant une
anthologie publiée récemment et
portant sur la « littérature
canadienne multiculturelle ». En
effet, tous les éléments inclus dans
le volume sont présentés comme ne
faisant pas partie de la culture
littéraire « anglo-celtique »
dominante. (Quant aux écrivains
francophones, pourrait-on ajouter,
ils ne sont apparemment pas
réputés faire partie de la littérature
canadienne.) L’auteur s’interroge à
savoir si le phénomène
multiculturel du Canada peut être
adéquatement envisagé en ces
termes. En fait, il affirme qu’il
pourrait s’agir là de la dernière

Citizenship and Rights
La citoyenneté et les droits
« anthologie multiculturelle
canadienne ».
Dans le troisième et dernier essai
critique, M. Pierre L’Hérault
explore quant à lui comment le
Québec, malgré sa situation
dramatique, a cherché à négocier
une entente avec ses populations
immigrantes et autochtones. Dans
le cas des immigrants, l’année 1977
a constitué une année-charnière : la
Loi 101 a confronté les écrivains
québécois à l’insertion croissante
d’immigrants dans la collectivité
québécoise. Dans le cas des peuples
autochtones, les écrivains
québécois ont eu tendance à les
dépeindre comme une entité
distincte des Québécoises et des
Québécois, en partie à cause des
liens particuliers entre les
autochtones et le gouvernement
fédéral.
En somme, avec onze articles et
trois essais critiques sur divers
aspects des droits et de la
citoyenneté, ainsi qu’une analyse
novatrice de l’adoption historique
de l’Accord de libre-échange par le
gouvernement Mulroney, le présent
numéro offre un survol
particulièrement riche et stimulant
des débats cruciaux qui touchent le
Canada contemporain.
Kenneth McRoberts
Rédacteur en chef
11

Claude Denis
Aboriginal Rights In / And Canadian Society: A
Syewen Case Study 1
Abstract
This paper analyzes the relationship between the Canadian state and
Aboriginal peoples, as evidenced by a little-known British Columbian court
case, and in light of the Nisga’a treaty signed in 1996. A modern court room is
a place where individual situations are redescribed in the discursive context
of occidental justice. When analyzed as a social practice, judicial decisionmaking
can be seen to effect a merging of the individual and the collective,
such that the individual case addresses the social relations of the collectivity.
In the case studied here, Aboriginal discursive practices were overwhelmed
by Canadian judicial / cultural authority, both through the court system and
media coverage. What resulted is a remarkably explicit expression of the still
colonial relationship between Canada and First Nations. Aboriginal rights
are thereby trampled. The paper also shows that for these rights to be
substantially recognized, whitestream society will have to reevaluate some of
its own conceptions of justice.
Résumé
Cet article présente une analyse du rapport entre l’État canadien et les
peuples autochtones, tel qu’il est exprimé par un procès peu connu qui a eu
lieu en Colombie-Britannique, et à la lumière du traité signé en 1996 par la
Nation Nisga’a. Un tribunal moderne est un lieu où des situations
individuelles sont redécrites dans le contexte discursif de la justice
occidentale. Le processus décisionnel judiciaire, lorsque analysé en tant que
pratique sociale, peut être compris comme réalisant une fusion de l’individuel
et du collectif; le cas individuel exprime alors les rapports sociaux de la
collectivité. Dans le cas étudié ici, les pratiques discursives autochtones ont
été submergées par l’autorité culturelle / judiciaire canadienne, tant dans le
processus judiciaire que dans la couverture médiatique; c’est ainsi qu’a été
produite une expression remarquablement explicite du colonialisme toujours
présent dans le rapport entre le Canada et les Premières Nations. Les droits
autochtones, dans un tel contexte, sont bafoués. L’article montre aussi que
ces droits ne seront substantiellement reconnus que si la société (à
dominante) blanche est prête à réévaluer certaines de ses conceptions de la
justice.
Now you try and say what is involved in
seeing something as something. It is not
easy.
Ludwig Wittgenstein 2
International Journal of Canadian Studies / Revue internationale d’études canadiennes
14, Fall/Automne 1996

IJCS / RIÉC
Introducing the “Ordeal” of Joseph Peters
One February day in 1988, on Vancouver Island, Joseph Peters was coming out
of the shower when a group of men burst into the house, grabbed him and drove
him away. Over a period of four days, they put him through what would later be
described as an ordeal. He escaped, hired a lawyer and launched a civil suit for
assault, battery and false imprisonment. No criminal charges were laid. Four
years later, in February 1992, the Supreme Court of British Columbia
(S.C.B.C.) found in his favour, and awarded him $12,000 “for nonpecuniary
damages, including exemplary damages” (139), but not including punitive
damages. 3
What makes this case interesting is that Joseph Peters and the men who grabbed
him are members of the Coast Salish Aboriginal nation, and that the four-day
“ordeal” was an Aboriginal ritual: the initiation into the tradition of “syewen.” 4
Joseph Peters, not having consented to the initiation ritual, decided to sue his
initiators. Before Justice Sherman Hood of the S.C.B.C., the defendants
claimed an Aboriginal right to conduct such initiations, and in any case denied
that they had either assaulted, battered and falsely imprisoned the plaintiff, or
even intended to do such things.
A modern court room is a place where individual situations are redescribed in
the discursive context of whitestream5 justice. When analyzed as a social
practice, judicial decision-making can be seen to effect a merging of the
individual and the collective, such that the individual case addresses the social
relations of the collectivity. In the case studied here, 6 we will see that
Aboriginal discursive practices were overwhelmed by Canadian judicial /
cultural authority, resulting in the remarkably explicit expression of the still
colonial relationship between Canada and First Nations. More specifically, the
presentation of Aboriginal practices in whitestream discourse invents a binary
opposition between “our” civilization and “their” savagery, that contributes not
only to continued whitestream domination but also to the erasure of gender as a
significant pole of power relations.
Peters v. Campbell, a case pitting Aboriginal men against each other and to be
adjudicated by a “white” court, occurred at a time when relations between
Aboriginals and whitestream Canada are at a turning point. Canadians are
increasingly aware that “Indians” are the victims of severe injustice, and that
this should be corrected; constitutional negotiations proposed the recognition
that Aboriginal peoples have an “inherent right to selfgovernment”—although
this proposal eventually unraveled with the failure of
the Charlottetown process of constitutional change. And Canada’s justice
systemfindsitselfanimportanttargetofcriticismandofreform,bigandsmall.
Towards Aboriginal Self-Government?
“For natives, the system shoots first and asks questions later,” writes Ralph
Akiwenzie, 7 chief of an Ojibway band that lives on the Bruce Peninsula
between Georgian Bay and Lake Huron. That bay, incidentally, was named
after the English King George IV; and “Huron” is an archaic French word that
refers to a hirsute hairstyle or to an ill-mannered person, a “ruffian,” and was
14

Aboriginal Rights In / And Canadian Society
used as a nickname by French colonists in reference to members of the
Aboriginal Wendat confederacy. 8 The words of our everyday language still
carry colonial and derogatory content; one might ask in what ways this is
Canadian content. Sometimes, as in the shooting death of Aboriginal leader J.J.
Harper by a Winnipeg police officer, Chief Akiwenzie’s statement is literally
true. More generally, his point is that the treatment of Aboriginals by Canada’s
legal system is deeply unfair. Aboriginal people are still treated as ruffians.
The killing of Harper and the miscarriage of justice in the case of Donald
Marshall led to provincial commissions of inquiry. In the recent past, other
(eventually) well-publicized cases of judicial bias against Aboriginals
included the murder of Helen Betty Osbourne in Manitoba and, more recently,
the abusive charging, conviction and imprisonment of Wilson Nepoose in
Alberta. Cases like these, and the many less publicized cases that result in
Aboriginals being grossly overrepresented in Canada’s jails, prompted
Manitoba’s Aboriginal Justice Inquiry to recommend the development of a
separate Aboriginal justice system. Riding on the support acquired for the
principle of an inherent right to self-government, an Aboriginal justice system
now seems like a distinct possibility. 9
What would such a system look like? Chief Akiwenzie, in his plea in favour of a
separate system, writes that “...tobeequal, native people must be different.”
That is, an Aboriginal administration of justice would function in ways
different from “white” justice. But what kind of difference is involved? In what
ways and to what extent would it reshape the operation and conception of law in
Canadian society? There are already local attempts to accommodate the needs
of Aboriginal people, from hiring more native police officers and prison
guards, to setting up autonomous band police forces, to altering the functioning
of courts and involving elders in sentencing. 10 The experiments, among others,
described by crown attorney Rupert Ross in his book Dancing with a Ghost
show that the changes are liable to go far deeper than mere staff replacements.
But with the possible development of an Aboriginal justice system and of selfgovernment,
this could be just a beginning.
The settlement, in early 1996, of the long-standing Nisga’a land claim provides
answers as to what may be ahead—it is, at the least, expected to serve as the
model for settling dozens of other claims in British Columbia alone. Up until
1991, the B.C. government always refused to negotiate treaties with any native
people. 11 Since the late 19th century, north-western B.C.’s Nisga’a people had
been trying to obtain recognition of their title to roughly 25,000 square
kilometers of land. They had gotten nowhere until 1973, when a court decision
that went against them was written in such a way as to provide a political
victory. 12 The resulting instability prompted the federal government to start
negotiations,whichwereblockedbytheB.C.governmentuntiltheearly1990s.
In the Fall of 1995, the federal and B.C. governments finally proposed a
settlement to the Nisga’a. Treaty negotiations led in February 1996 to an
Agreement-in-Principle13 in which the Nisga’a obtained title to about 8% of
the land in their original claim, logging rights over some further land, financial
compensation, and political autonomy amounting to a form of municipal
government. They also agreed to surrender their exemption from income taxes
15

IJCS / RIÉC
and gave up an important demand to fishing rights in return for a limited sidedeal
with the federal government. Finally, they agreed to be bound by the
Canadian Charter of Rights and Freedoms, and by federal and provincial laws
of general application—all of which had been strongly resisted by the
Assembly of First Nations (A.F.N.) and other native groups during the 1992
Charlottetown constitutional negotiations. 14 The Nisga’a, then, obtained a
very small part of what they (along with many other First Nations) had claimed,
not only in terms of amounts of land, resources and autonomy but also in terms
of the kind of autonomy and right to self-government.
What concrete impact, one may ask, will all of these changes—from the
judicial process to Nisga’a-type treaties—have on Aboriginal peoples in
Canada? Will colonial domination by the Canadian state come to an end,
allowing them to live and grow according to their own cultural priorities? Or
will they remain subordinated to the Canadian way? In either case, what can we
expect for the relationship between whitestream Canadians and Aboriginal
people?
These are the questions that this paper wants to probe through an analysis of
Peters v. Campbell. The first (and main) order of business will be to “unpack”
the cultural-political coordinates of the situation in which the Court found
itself, along with Joseph Peters and his initiators. This will go a long way toward
understanding the extent to which changes such as the Nisga’a treaty are likely
to transform the lives of First Nations and their members. Indeed, we will ask
what would have happened if the conflict between Joseph Peters and his
initiators had taken place under a Nisga’a-type jurisdiction.
The object of my analysis will be principally constituted by two texts emerging
from Joseph Peters’ lawsuit: a newspaper report on the Court’s decision, and
the decision itself. The decision may or may not turn out to be an important one,
except for the parties in that particular case; but it is extremely revealing of how
Canadian courts are wont to think about Aboriginal rights. It also allows,
despite itself, for a glimpse of just how destructive “our” judicial process is of
Aboriginal ways of life and of thinking.
In this paper, I have endeavoured to participate in the process of reading the
relationship between Aboriginal peoples and whitestream Canada, in the
knowledge that I can only do so from an occidental perspective: such a
perspective is vastly different from Aboriginal ways, to a degree rarely
acknowledged or even grasped by people reared in the white stream. Indeed,
these differences are so deeply ingrained as to involve “irreconcilable or
irreducible elements of human relations.” 15 For many years now, this issue of
difference has provided the social sciences and humanities with large amounts
of thinking material, feeding in particular the running feud over relativism
between self-styled modernists and postmodernists. It goes without saying
that, while the debate is germane to this paper, there is no room here to engage it
explicitly. 16
This paper begins by attending to one of whitestream culture’s readings of the
relationship: that of Canadian courts’ take on Aboriginal rights. From there, the
paper aims beyond the courts’ perspective with a view to emulating Michel
16

Aboriginal Rights In / And Canadian Society
Foucault’s yearning to: “penser autrement qu’on ne pense et percevoir
autrement qu’on ne voit.” For Foucault, this is a quest that defines
philosophical practice today: “. ..aulieu de légitimer ce qu’on sait déjà, (la
philosophie aujourd’hui ne consiste-t-elle pas) à entreprendre de savoir
comment et jusqu’où il serait possible de penser autrement?” 17
The Supremacy of English Law
In February 1992, The Globe and Mail reported the decision of the S.C.B.C. in
Peters v. Campbell. It described syewen as follows:
Spirit dancing, which was illegal in Canada from 1880 to 1951, is a
native ritual involving fasting and confinement until an individual
hears “the song of his guardian spirit,” which leads to the initiate
dancing and singing a song. Individuals are grabbed for the ceremony
with or without their consent, the court was told. (Emphasis added)
The issue, beyond the facts of the Peters v. Campbell case, was put thusly by the
defendant’s counsel to Judge Hood, who duly noted it in his decision: “Are the
individual rights of Aboriginal persons subject to the collective rights of the
Aboriginal nation to which he belongs?” (160) The defense answered its own
question, in favour of Aboriginal collective rights, by appealing to section
35(1) of the Constitutional Act 1982, which states: “The existing aboriginal and
treaty rights of the aboriginal peoples of Canada are hereby recognized and
affirmed.”
As we shall see below, this defense was, in essence, a challenge to the rules of
the game that allowed a law suit to proceed between these parties, and that give
Canadian courts the authority to adjudicate it. But Judge Hood missed this basic
point, not seeing that his very jurisdiction was at issue. He did rule on the
defense’s contention that the individual rights of an Aboriginal person are
subject to Aboriginal collective rights. He disagreed:
Assuming that spirit dancing was an Aboriginal right, and that it
existed and was practised prior to the assertion of British sovereignty
over Vancouver Island, and the imposition of English law, in my
opinion those aspects of it which were contrary to English common
law, such as the use of force, assault, battery and wrongful
imprisonment, did not survive the coming into force of that law. . .
(160)
There is no ambiguity in the Court’s decision to affirm “the supremacy of
English law to the exclusion of all others,” and thus the “paramountcy of
common law to the alleged aboriginal right” (160) 18: Judge Hood found for the
plaintiff. In doing so, the Court exercised cultural authority at its most selfassured,
where cultural authority is defined as:
. . . the authority which one culture is seen to possess to create law and
legal language to resolve disputes involving other cultures and the
manner in which it explains (or fails to explain) and sustains its
authority over different peoples. 19
The Globe and Mail paraphrased the ruling in these terms, which are partly a
quote from Judge Hood, himself quoting the defense’s key question: “The
17

IJCS / RIÉC
freedoms and civil rights of an Aboriginal Canadian are not subject to the
collective rights of the Aboriginal nation to which he belongs” (emphasis
added). By referring to the plaintiff as an “Aboriginal Canadian,” the reporter
(unwittingly) caught very well the problematic logic of the ruling. In the
introduction to his decision, Judge Hood had identified the plaintiff, Joseph
Peters, as “an ‘Indian’ within the meaning of the Indian Act, R.S.C. (1985), c. 1-
5, and [. . .] of course, a Canadian citizen” (140, emphasis added). This “of
course” had been a good indication that the court would consider the plaintiff as
a Canadian first and foremost. Aboriginal rights, whatever they may be or
amount to, must function within that framework:
Placing the Aboriginal right at its highest level it does not include civil
immunity for coercion, force, assault, unlawful confinement, or any
other unlawful tortious conduct on the part of the defendants, in
forcing the plaintiff to participate in their tradition. While the plaintiff
may have special rights and status in Canada as an Indian, the
“original” rights and freedoms he enjoys can be no less than those
enjoyed by fellow citizens, Indian and non-Indian alike. He lives in a
free society and his rights are inviolable. [. . .] His freedoms and rights
are not “subject to the collective rights of the Aboriginal nation to
which he belongs.” (162. Emphasis added)
The central conflict narrated in the court’s decision was indeed that between
“Aboriginal rights” and “individual civil rights.” The presence of this polarity
in Peters v. Campbell was made possible by the existence in Canadian law of
dispositions relating to both these rights: on the one hand, the Charter and a
whole body of common law address individual rights; on the other hand,
Canadian law also has much to say about Aboriginals—in sections 25, 35 and
37(2) of the Constitution Act 1982, in treaties and court decisions, and in the
Indian Act. Had there been no mention of Aboriginal rights in at least one area
of Canadian law, no defense in front of a Canadian court challenging the rules
of the game would have been thinkable. The defense would have been reduced
to arguing about facts: Was there assault, battery and false imprisonment? Was
there consent?
If a law suit was to be fought over Joseph Peters’ misadventure, there existed a
whole set of textual-legal resources for it to be fought over the issue of Indian v.
White, Aboriginal right v. civil right, on terms defined and dictated by the
“white” side of the relationship. Within the current Canadian legal framework,
it was easy to bring a suit of civil wrong, it was possible to mount a
constitutional defense based on s. 35, and it was easy for the Court to proclaim
the supremacy of English law—to assert the cultural authority of the occident
over Aboriginal peoples, thereby reaffirming the colonial character of the
relationship. 20 More specifically, it was easy and natural for the Court to
consider (at least certain aspects of) syewen as a tort, and even as a crime
although this was a civil proceeding. Judge Hood is worth quoting at length
here:
I am not satisfied that even an ancient tradition or activity carried on
by the defendants and their ancestors, which involves force, assault,
injury and confinement, all against the will of the initiate, can be said
to be a continuing Aboriginal right. If spirit dancing includes criminal
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Aboriginal Rights In / And Canadian Society
conduct as an integral part of it, it could not be said to be an Aboriginal
right which survived the introduction of English law into the colonies.
In this regard I note that under the Criminal Code both assault and
confinement of a person are criminal offenses in certain
circumstances. [. . .] In my opinion, conduct amounting to civil
wrongs (rights from the point of view of the person wronged) should
stand on the same footing as criminal conduct. If such conduct cannot
be separated from the spirit dancing, and thus is an integral part of it,
then in my opinion spirit dancing is not an Aboriginal right recognized
or protected by the law. (156. Emphasis added)
But for all the Indian v. White legal-textual apparatus that underlies the Peters
v. Campbell suit, we must not stay within this framework if we are to understand
the battle that was waged here. In order to expand our perspective, it will be
useful to look at how the issue of difference between Indian and White is being
constructed in the suit’s narration. With this, I am not trying to dismiss the
Indian v. White framework, nor am I suggesting that some real conflict in this
story lay elsewhere. Rather, I am trying to get at how the conflict is constructed
in discourse as this cultural binary opposition; at what it is that we are given to
understand of the suit by its various storytellers; and at what additional issues
may be embedded in the Indian v. White framework.
A Clash of Cultures?
After outlining the decision’s affirmation of the supremacy of British law, the
Globe and Mail article presents two more narratives. First, a description of the
circumstances that led to the suit, recounting testimony documenting (a) the
initiate’s lack of consent to the initiation and (b) the physical injuries and
humiliations that he sustained:
(a) he was “forcibly taken” to the Long House, “imprisoned,” “forced to
undergo the initiation ceremonies;” he “did not authorize anyone to have
him initiated as a spirit dancer and was not interested in learning about his
people’s culture;”
(b) the initiators “took turns digging their fingers into his stomach area and
biting him on his sides,” causing superficial injuries whose existence was
confirmed by the physician who treated Joseph Peters upon his escape; “...
he was stripped naked, forced to walk backwards into the water and
submerge himself three times, he told the court. He said he was then
beaten with cedar branches;” during these four days, he was given no food
and very little water.
Other features of the initiation’s circumstances could have been identified by
the reporter in his attempt to provide readers of The Globe with an
understanding of the events. But the features he did highlight anchor firmly
Joseph Peters’s claim to have been wronged in one of modernity’s fundamental
tenets, at least as it relates to men: the autonomy of the self.
In whitestream society, it is taken for granted that men are autonomous selves,
with control over the integrity of their body. As such, the fact that Joseph Peters
is a man is certainly not unrelated to this other fact that his forced initiation
became an affair—an event that quickly acquired the public profile of
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IJCS / RIÉC
something outrageous, requiring and receiving both media and judicial
attention. To him, the override of his consent appeared outrageous, as did the
“ordeal”—to quote Judge Hood—he was subjected to. To the court too. And to
The Globe and Mail. Indeed, nobody thought to tell Joseph Peters that his “no”
really meant “yes.” Now, this underscores the fact that the extent to which
women are autonomous selves in whitestream societies remains an issue, and
especially so when it comes to control over the integrity of their body—this, in
fact, is a very important, and obscured, part of the story, to which we will return
below. Thus, any modernist account of these events would have to focus on the
“facts” that Joseph Peters was denied the exercise of his free will, and that the
autonomy and integrity of his body were violated. But women, and Aboriginal
women more than others, see their consent routinely violated as they are
subjected to treatments far worse than what Joseph Peters experienced. And,
routinely also, these other “ordeals” do not make their way to court.
There are some circumstances in which modernity will allow such denials and
violations of the rights of men, such as with convicted criminals (who,
axiomatically, are rightfully imprisoned) and individuals who are deemed
mentally incompetent to make their own decisions. 21 It is a familiar trope of
liberal discourse that modernity has placed a severe restriction on the infliction
of pain and suffering for socially normative purposes. 22 One would not expect
that the authoritative, modern culture would tolerate it coming from the
oppressed culture. 23 As Judge Hood put it, Joseph Peters “did suffer injuries,
both physical and mental” and he “did experience pain and suffering during his
ordeal and for sometime thereafter” (162). Hence the award of compensatory
damages.
In assessing damages, the Court easily came to the conclusion that the
intentions of the defendants were good, that “they honestly and sincerely
believe in the Dancing Tradition, that they were helping the plaintiff. . .” (162).
As a result, they were not assessed punitive damages. But these good intentions
were of no help in getting the suit dismissed. In deciding the case, as far as the
Court was concerned, “the motives of the defendants are irrelevant.” (159)
So far as we can tell from The Globe’s article (and also from the Court decision
itself), Joseph Peters had done nothing to deserve such treatment. But, on this
issue of initiators’ reasons (why did they do this?), the reporter’s account turns
bizarre: almost as an afterthought, he writes that Peters’s then common-law
wife, Pat Michaels, “had requested that he be initiated as a way of dealing with
marital and other problems,” according to the testimony of an elder, who was
also a defendant. The initiation, a four-day ritual involving fasting and injuries,
none of which Joseph Peters consented to, is to be justified on the grounds of
“marital and other problems?!” Could any modern reader of The Globe and
Mail feel anything but solidarity with Joseph Peters? Could any such reader
conclude anything other than that he was assaulted, battered and wrongfully
imprisoned?
There was no inevitability in the writer presenting the story in this way. But it is
not so simple as to call for “the other side” to be heard—for, indeed, “the other
side” is heard in the report, through the (interviewed) voice of the defendant’s
lawyer, Lara Skye. In fact, presenting two sides in this way, constructing binary
20

Aboriginal Rights In / And Canadian Society
oppositions, is part of the difficulty, inasmuch as it is a forceful invitation to
take sides. We will come back to the lawyer’s comments below, but for now the
point is this: in order to provide us with an alternative story, the reporter would
have had not to present the claims of “the two sides” but, rather, to do something
that the Court would not: take seriously the reasons of the initiators. 24
In the story of the initiation of Joseph Peters as told by The Globe and Mail,
there is no doubt where the sympathies of the reader are meant to reside: with
Joseph Peters, against his initiators and, most importantly, against a culture that
would allow a man to be subjected to such an “ordeal.” We will see below that
there were alternatives to this way of telling the story. But, as it is, the
newspaper reader is placed in a position where s-he has to choose sides; and
where the party to be sided with is us, “civilized,” modern society, against a
“primitive,” “barbarian” practice. This is a morality tale, then, which makes us
moderns feel good about ourselves, about our respect for human rights, and
which at the same time undermines our ability to respect Aboriginal cultures.
Most of all, it allows us, when we hear the word “Indian” or “aboriginal” to
displace concerns from our domination of them to their “barbarity.” At work
here is what Dominick LaCapra calls “the scapegoat mechanism—a
mechanism that generates purity for an in-group by projecting all corruption or
pollution onto an out-group.” 25
Such a dramatic slant in a news report would seem to go against the rules of
reporting to which the prestigious Globe and Mail subscribes: balance, readers
are routinely told, is required. Now, how does one obtain “balance?” In 1977,
the Canadian Daily Newspaper Publishers Association adopted a “Statement
of Principles” which requires that the news be presented “comprehensively,
accurately and fairly;” it defines fairness as “a balanced presentation of the
relevant facts in a news report, and of all substantial opinions in a matter of
controversy. It precludes distortion of meaning by over-or under-emphasis, by
placing facts or quotations out of context. . .” 26 The question here is: what
counts as “the news?” Is it the initiation of Joseph Peters? Or the judgement by
the Superior Court of British Columbia? Depending on how one answers “the
relevant facts” and context will change.
The initiators’ motivations, clearly, are part of the context of the initiation of
Joseph Peters; in neglecting them, and thereby presenting the initiation without
an important element of its context, the reporter could be said to have breached
the “Statement of Principles.” But it is very unclear whether the motivations are
part of the context of the judgement: if we believe the judge, they are irrelevant.
The reporter had to report on the news (and its context); the news, here, was the
Court’s decision—not the initiation itself. And the decision was that the
individual rights of Peters were upheld against Aboriginal collective rights; and
that the motivation of the initiators were irrelevant.
To go beyond this, the reporter would have needed to expend extra time and
energy todigformoreinformation; inthebusiness ofdailynewsreporting, time
to dig is rarely forthcoming, such that reporters keep a narrow focus on the
obvious principals of the story. Blaming the individual reporter would be to
miss the forest for a tree: it is how the media generally operate that led the
reporter to construct the story as he did. Thus, contrary to appearances, in
21

IJCS / RIÉC
writing his story on Peters v. Campbell, the Globe and Mail reporter was acting
not as a “Native Affairs Reporter” 27 but rather as a legal affairs reporter: more
than anything else, his story was about how the Canadian state, through the
Court, was arbitrating conflicts of rights. Functioning within these strict limits
is one important mechanism through which the news media contribute mightily
to “the ability of authorities to make convincing claims.” 28 In particular, “news
of law serves as an influential vehicle through which the authority system can
instruct people on what to be as well as what to do.” 29
It is now time to look at the final narrative in the article, consisting of excerpts
from an interview with the defendants’ lawyer, herself an Aboriginal. These
excerpts provide the article with the “balance” that the rules of contemporary
reporting call for, in this case outlining an Aboriginal cultural and political
critique of the judgment. The first excerpt immediately follows the account of
the Court’s decision:
Native leaders on Vancouver Island greeted the judgement with a
great deal of anger, lawyer Lara Skye said yesterday in an interview.
“They see it as a complete denial of their constitutionally protected
rights.”
Canadian judges, who have been indoctrinated in the Western
European tradition of individual rights, have difficulty conceptually
in putting collective Aboriginal rights in the proper perspective, Ms.
Skye said.
This Aboriginal narrative is then interrupted by several paragraphs describing
the contentious syewen initiation. Then, the article concludes with a
comparatively long excerpt from the lawyer’s interview:
Ms. Skye maintained that Mr. Peters’ civil rights against assault,
battery and false imprisonment are subordinate to the collective rights
of the Aboriginal nation, protected by Section 35(1) of the Canadian
Constitution, which confirms Aboriginal and treaty rights.
She said in an interview that most ceremonies involve voluntary
participants because they consider the ritual to be an honour. But
according to tradition, members of a family may request that a relative
beinitiatedinvoluntarilyinordertohelpwithpersonalproblems,such
as drinking, drug abuse or other social illnesses.
The native people do not believe an individual is an island in this
world, she said; an individual is part of a family and the family is
responsible for the welfare of its members.
Contrary to the reporter’s own construction of the suit, which is based on Judge
Hood’s narration of testimony, Lara Skye places herself30 and her people
outside modernity, and finds it cold and unappealing. She first presents it as
oppressive of Aboriginal rights specifically; secondly, she portrays it as
obsessed with the isolated individual and his or her rights, and
uncomprehending of collective rights in general. This broad outline of a
critique of “white” society sounds some familiar complaints about
contemporary occidental societies: there is an excess of individualism, the
family is in crisis. But whereas whitestream critics of our times target excesses
or specific ills of our societies (e.g. individualism is good, but too much of it is
22

Aboriginal Rights In / And Canadian Society
bad), 31 this Aboriginal critique takes aim at the whole “Western European
tradition of individual rights.” 32 On the other hand, Skye presents the syewen
ritual as an honour, and the native family as caring and nurturing. This echoes
the defense’s submission to Judge Hood, which he quoted in his decision: “. . .
the primary reason for a Coast Salish family to request that one of their
members be initiated is to enhance the quality of the life of the initiate and to
honour him.” (158)
Problems of the individual that may warrant intervention by the family, says the
defense lawyer as quoted in The Globe, are such things as “drinking, drug abuse
and other social illnesses”—problems, by the way, which are strongly
associated with the oppression of Aboriginals by “white” society. Two things
are remarkable here: first, whereas the circumstances of the Peters initiation are
narrated specifically (this thing happened to this man), the justification for
initiating without consent is presented as a general statement, which may or
may not apply to this case; second, this statement of justification comes at the
very end of the article, well after reader sympathies have been
established—and, indeed, after many readers will have moved on to some other
article, for few newspaper articles are read to the end. 33
In reporting as it did, even as it followed accepted rules of “balance,” The Globe
and Mail made itself an auxiliary to the Court, and contributed to the
reproduction of the domination of Aboriginal cultures by whitestream
practices. This is best seen in the reporter’s neglect of the initiators’
motivations, in conformity to the court finding them irrelevant. There may be
reasons of law that would lead the court to take this stance, but these are not
binding on newspaper reporting. The notion that the initiation without consent
was justified by vague marital problems was not only surrealist enough to raise
further questions, but it was also undermined by contradictions in testimony
(more on this below). The narration of the two sides, then, was utterly unequal:
readers were presented with those facts of the Peters’ initiation which the Court
judged relevant, and they were to make sense of those facts either on the basis of
the modern cultural context with which they are utterly familiar (as water is
familiar to fish), or of an Aboriginal context which appeared not even as a
cipher but as a void.
Culture, Gender and Justice
The first line of defense for the initiators of Joseph Peters was stated thusly by
Judge Hood: “The defendants deny that they assaulted, battered or falsely
imprisoned the plaintiff.” Three more lines of defense follow: “first, lack of
intention on their part to inflict harm on the plaintiff, second, consent or
acquiescence on the part of the plaintiff, and third, a constitutional defense”
based on their Aboriginal rights (141). Given what we know about the
uncontested facts of the initiation, the first defense can seem incomprehensible.
The same goes for the second defense, about the lack of intent. And both
certainly were quickly dispatched by Judge Hood: “I do not propose to deal at
length with [. . .] the tort issues. [. . .] The plaintiff has proven, beyond any
question, almost continuous assault, battery and wrongful or false
imprisonment during his ordeal” (150).
23

IJCS / RIÉC
But it is crucial to realize that these defenses do not merely assert statements of
facts (no assault occurred, etc.). Rather, they assert an Aboriginal perspective
on the facts: to put it in a nutshell, the dancers did not intend to “assault,”
“batter” and “imprison,” they intended to initiate and help. From their point of
view, which is not idiosyncratic or merely self-exculpatory but rather culturally
constructed, they did not “assault.” They initiated. The point here is that assault
and initiation are not natural facts which are directly grasped as such by
dancers, judges and newspaper readers; they are, rather, particular descriptions
of the world, expressing particular cultures.
In claiming that no assault occurred and that there was no intent to assault, the
defense was saying that even the most basic tools (such as acts defined in law as
assault, battery, etc.) of the Canadian legal system are inadequate for dealing
with the events surrounding the initiation of Joseph Peters. The defense was
inviting the court to declare itself incompetent. But Judge Hood did not quite
grasp this. He did not, that is, understand that in a situation such as the Peters
initiation, the Aboriginal right claimed makes “assault, battery and false
imprisonment” irrelevant descriptions of the world and therefore renders
Canadian courts incompetent. This incomprehension is well indicated by his
puzzlement at why the defendants chose to appeal to s.35(1) of the
Constitution, on Aboriginal rights, rather than to s.25 and common law rights
on freedom of religion (157).
In the end, Judge Hood could afford to not understand because his description
of the world rules over that of the Coast Salish people. It is of no importance to
him that, within this latter description, it is indeed quite possible that nothing
other than a proper initiation occurred, and that it was done for perfectly good
reasons. This fact, that the propriety of the initiation is (necessarily) ruled
irrelevant by a Canadian court exposes its constitutive inability to do justice to
Aboriginal life.
One of the very peculiar features of the Peters v. Campbell decision, as should
be clear by now, is its account of the reasons for the Joseph Peters initiation.
Although it is clear how Judge Hood’s cultural and institutional blinkers would
lead him to think these reasons irrelevant, the marginality of the discussion of
reasons remains startling. It is almost as though the initiation had been a
gratuitous act: in narrating testimony, Judge Hood refers (1) to “marital and
other problems;” (2) to Pat Michaels, whom he quotes as saying that “for us, it
was the right thing to do—I thought it would help our relationship;” and (3) to
an elder who, on being told by Pat Michaels that Joseph Peters was drinking,
replied that they needed “more reason than that” (145-147).
The question becomes: viewed from an Aboriginal perspective, was the
initiation justified? Did Joseph Peters need the “help” of his family and of other
members of the Aboriginal community?
Here we may restate that our attempt to “think otherwise,” while aiming at
approaching an Aboriginal perspective, remains firmly anchored within an
occidental description of the world. Attempts to use whitestream language to
make some sense of Aboriginal ways, may translate some of their cultural
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Aboriginal Rights In / And Canadian Society
language, but it does not produce one single language, one single description of
theworld.Thereremainstwocultures,twodescriptionsoftheworld,notone.
If the issue of cultural translation is not a problem in and of itself, our attempt at
approaching an Aboriginal perspective faces an important impediment: we
must tease out the reasons of the initiators from the hints and silences of the
Court’s decision and of the newspaper account. Thus, the Court tells us that the
initiators had good intentions and that they thought that Joseph Peters needed
help. We remain uncertain as to what actually took place that led to the
initiation, including the specific nature of the “marital and other problems” that
moved Pat Michaels to request a forced initiation. But, as we will see, there is
nothing arbitrary about the way in which the elders decided to do it. Thus, if we
are to take seriously Aboriginal cultures, we should be prepared to respect their
decision-making process and their decisions themselves. (This is, of course,
what Canadian courts are generally not prepared to do.) In other words, we
should be prepared to assume that they would not engage in the gratuitous,
disproportionate or wanton infliction of pain and suffering—the contrary
assumption being nothing short of racist.
We now return to the comments of the defendants’ lawyer in The Globe and
Mail. As typical reasons for a family to request an initiation, she mentioned
“alcohol, drugs and other social illnesses.” And we also have Pat Michaels’
claim that there were “marital problems.” But one elder involved in the
initiation of Joseph Peters thought alcohol to be insufficient. Which leaves us
some other unspecified, but fairly serious one would think, “social illness.” It is
clear, in any case, that (a) Pat Michaels thought that her problems with her
partner were sufficiently serious that she needed the help of the community and
for which he bore enough responsibility that he should be initiated against his
will; and (b) the elders needed what they thought of as good and compelling
reasons to carry out an initiation without the consent of the initiate.
We have noted earlier that, within the whitestream description of the world,
there are circumstances where the suspension of individual rights is deemed
legitimate; and this suspension may extend to the infliction of pain and
suffering. Presumably, this is also the case within the Coast Salish description
for the world. We can expect, then, that initiation ceremonies will be
undertaken without the consent of the initiate only in such cases where there are
good and compelling reasons, and after due consideration of whether or not an
initiation should proceed. Clearly, the two cultures have different ways of
making decisions and of suspending rights. But there obviously are situations
where both cultures identify the same social practice as unacceptable and
subject to some community action upon the individual (think for example, of
something that does not apply in this case: murder).
It could be that if Pat Michaels had chosen to go to the whitestream community
with her claims, she would have obtained “our” version of help; or perhaps not,
depending on the specifics of her story. But she chose to appeal to the Coast
Salish community, and to bring into play Aboriginal cultural practices. The
Coast Salish community responded to her appeal, and was later told by the B.C.
Supreme Court that it had no right to do so in the way it did.
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IJCS / RIÉC
Two more general propositions can be advanced from this attempt to approach
an Aboriginal perspective in understanding Peters v. Campbell . First, this is
not a conflict between valuing individual or collective rights—contrary to the
standard accounts of the cultural difference between the occidental and
Aboriginal worlds, including the comments of lawyer Lara Skye published in
The Globe and Mail. Indeed, some features of syewen make it very clear that a
strong individualist streak exists in Coast Salish culture—as is argued, it turns
out, in the book that the defendants submitted to the court as a “learned treatise”
whose facts should be treated as prima facie true (154). 34 Which is not to say, of
course, that the Coast Salish people see the individual as an island, isolated
from family and community. The relationship between individualism and
collectivism in Coast Salish culture is apparently dialectical: they feed on each
other. Now, this is also the case in whitestream culture—at least as
individualism is constructed in philosophical and ethical systems. This
dialectic of individual, family and community is, for instance, at the heart of
hellenistic individualism. 35 It is also crucial in the genesis of modern
individualism. 36
Some things are thus shared by the Aboriginal and occidental perspectives,
‘meta-cultural’ features perhaps, constructed and expressed in ways specific to
each. Because of this phenomenological depth, the simple “two sides”
structure—us and them, irreconcilably opposed—of the newspaper report, and
of lawyer Lara Skye’s comments, is enormously misleading. More
importantly, it induces readers, the audience, to take the dominant’s side on the
basis of a binary opposition that need not exist, but that covers the weak’s side
with a veil of ignorance. 37
Secondly, attending to gender relations is crucial in making sense of the events
surrounding the initiation of Joseph Peters. The gender nexus in the story is, in
fact, the key that allows us to unlock the riddle of the initiators’ motivations.
But, for this unlocking to happen, it is necessary to respect Pat Michaels as an
autonomous agent just as much as we are clearly prepared to respect Joseph
Peters’ autonomy. In the Court’s decision and in the newspaper report,
however, Pat Michaels gets no such respect—indeed, she was alone among
several reluctant witnesses with failing memories to be targeted for derogatory
comments by Judge Hood: losing patience with her, he portrayed her as an
unintelligent non-entity.
We should never forget or underestimate the fact that, after all, it is Pat Michaels
who set the events in motion. She thought that she and her husband needed help,
and so she went to the elders of the Long House to ask that he be initiated. Two
elders and defendants testified that they required Pat Michaels to “have the
consent of the plaintiff’s family,” and that she may go to either his brother or his
aunt (147). This is odd and interesting: wasn’t Pat Michaels herself a close
family member? Why should someone else’s permission be needed? It seems
that, because they did not know her at the time (according to the testimony of
one elder), the elders dismissed the possibility that she may grant
authorization—a family member known to them, then, had to authorize the
initiation.
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Aboriginal Rights In / And Canadian Society
So, Pat Michaels sought Joanne Pelkey’s authorization. Ms. Pelkey, herself a
member of the Long House, made her authorization conditional on that of
Joseph Peters’ brother, Gary. In doing this, she removed herself from the events
by making her authorization redundant. Pat Michaels did not, apparently,
obtain Gary Peters’s authorization. But she went back to the elders claiming
that she did and they evidently believed her. There is no account in the
judgement of why Michaels did not go to her brother-in-law. In any case: the
elders, after evaluating the case and armed (they thought) with proper
authorization, went ahead with the initiation.
The gender dynamic in this colonial story is striking. To begin with, the coerced
initiation of Joseph Peters was a response to Pat Michaels’s appeal for help.
After this starting point, however, women disappear from the story. First, being
(apparently) unknown to the elders, Michaels was not considered a proper
family member for the purpose of authorizing the initiation; and Joanne Pelkey,
a proper authority, wanted nothing to do with her nephew’s problems—she
would testify in Court that she did not associate much with the family. 38
Secondly, when the initiation was brought to the Superior Court of British
Columbia, where the initiators’ reasons are considered irrelevant, the story
focussed exclusively on the violation of Peters’s rights; and Michaels was the
only witness to be portrayed in an unfavourable light. Third, when the Court’s
take on the conflict was reported in the media, the erasure of women was
repeated—producing a narrative where native culture displays a gross
disrespect for the rights of this man, Joseph Peters.
This male-centered, racist narrative is very much an expression of dominant
Eurocentric practice in which the bodily autonomy of self is strongly genderdependent.
Within the Coast Salish community, a group of men acted on behalf
of Pat Michaels (and, despite himself, of Joseph Peters). Once the conflict is
captured by colonialist discourse, in Court and in the media, however, women
and their concerns are pushed into demeaning irrelevance, leaving visible only
the suspension of a man’s rights.
The imbalance between our concern for Joseph Peters and the invisibility of Pat
Michaels makes the actions of the initiators appear almost unmotivated—a
narrative gap that feeds whitestream notions of savagery among natives, and
that is a shining example of the intertwining of “race” and gender in the colonial
enterprise. That is to say, the positioning of native women in colonial discourse
contributes to the destructuring of the colonized’s culture and society—the
mechanism of oppression in Peters v. Campbell combines race and gender: for
the Court and media to be able to narrate the superiority of Western culture (in
its concern for individual rights), they have to push the concerns of Pat
Michaels outside the frame of narrative relevance. And they are able to dismiss
Pat Michaels because of the pre-established authority of the whitestream over
Aboriginal peoples. Colonialism is reinforced through the erasure of women, at
the same time that gender oppression is bolstered by whitestream cultural
authority.
There is also, perhaps, a lesson in this story about the controversy surrounding
the eventual application to Aboriginal self-government of the Canadian
Charter of Rights and Freedoms, as requested by some Aboriginal women’s
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IJCS / RIÉC
groups: here is a woman who asks for and obtains her Aboriginal community’s
help in her relationship with her partner, only to find that a Canadian court
disallows that help on the grounds of the common law, which is consistent with
the Charter.
The Nisga’a Model and Aboriginal Justice
However one evaluates what happened to Joseph Peters, he was not punished.
In the ritual of initiation to syewen, the override of the individual’s consent
bears an analogy not to the imprisonment of a criminal, but rather to the
“involuntary civil confinement” of a mentally incompetent person (see note 21
above) which, under the best of assumptions, has a therapeutic rationale.
Described in whitestream terms, syewen clearly aims partly at therapy39; it also
has a religious dimension. Its goal, then, is at once religious and therapeutic,
and is far better understood as an attempt to heal a wounded spirit than to punish
a criminal. Further to the point: the theme of healing is central in the accounts
given by Aboriginals of their attempts to overcome the devastation wrought on
their lives by whitestream domination, often expressed itself in alcohol and/or
drug addiction, prostitution, suicide and violence against women—“social
illnesses” several of which are also defined as crimes under current
whitestream laws. It would therefore be a serious and unnecessary
misunderstanding to portray the initiation process as an instance of Aboriginal
“justice,” where the initiation ritual would be a trial, conviction and sentence
rolled into one.
Issues of justice remain, however, central to this story: was it justified for the
initiation to take place without Joseph Peters’ consent? On this issue,
whitestream sensibilities may hasten to claim that due process was denied
Joseph Peters. But what we call due process is a culturally specific practice, and
the circumstances that led to the initiation may be said to represent a Coast
Salish version of due process: the initiation would not be undertaken without
consent, unless the elders in charge of the ritual were satisfied that there were
good reasons to do so, as guaranteed by at least one member of the prospective
initiate’s family. In such a situation, due process is not dependent on a court of
law and the adversarial system, but on the trust that a community puts in certain
men and women, endowing them with the status of elders. Thus, both in
substantive terms and in procedural terms, an initiation without consent is not
an arbitrarily conducted event.
In the case of the initiation of Joseph Peters, his lack of consent may have been
the truly irrelevant issue. Whether or not it was irrelevant is beyond the reach of
this paper. The point is that the eventual irrelevance of Joseph Peters’s lack of
consent could not be established by a Canadian court as currently constituted.
We have seen that such a court is, by definition, incompetent. Assuming a
system of Aboriginal justice, instituted in all likelihood in the context of treaties
with existing governments, only a Coast Salish process could establish whether
or not this initiation had been gratuitous and unjustified according to
Aboriginal criteria of justice.
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Aboriginal Rights In / And Canadian Society
What this Coast Salish process may be remains open to question: negotiations
with governments would do much to shape it. What if the Nisga’a treaty were to
serve as the model? Would Joseph Peters have been able to sue, and
successfully so, in front of the Superior Court of British Columbia? In the
Nisga’a agreement, when non-members of the Nisga’a Nation have dealings
with the judiciary, they are given the option of either going to the Nisga’a or the
B.C. court systems; and a non-citizen who has agreed to the Nisga’a court’s
authority has to further agree if the penalty is other than “those generally
imposed by provincial or superior courts in Canada.” 40 Finally, when anyone’s
potential sentence is prison, that person may also choose the B.C. court. 41
If this treaty does turn out to be an influential model for future self-government
agreements, the claims of the Aboriginal justice system will be highly
dependent on whether the person brought to justice is a First Nation citizen. In
the Nisga’a agreement, a person is entitled to citizenship either through
ancestry or adoption, and may therefore enrol as an official member of the
Nation; this person has to apply for enrolment and, once a member, may resign
his or her membership. 42 In that context, a person who seriously does not want
to be a member of the First Nation would have either not applied for enrolment
or would have resigned his or her membership. But someone who is on the First
Nation’s official enrolment register could not claim in court that s/he does not
belong to the Aboriginal community. On the other hand, someone may have
clear links to the community, as Peters did (being the son of a prominent Coast
Salish family, and being the spouse of a Coast Salish woman who asked the
community that he be initiated), but have chosen to stay off the register. In the
Nisga’a accord, such a person would not be considered a member of the Nisga’a
nation, at least for the purpose of adjudicating conflicts.
Given all this, what kind of help to the Salish community would Nisga’a-type
self-government have been in the case of Peters v. Campbell? First, in order to
be treated as an ordinary Canadian citizen, Peters would have had to stay off the
register in advance of his conflict with his initiators. Had he done so, any action
by his initiators would have been subject to his consent. Had they initiated him
without his consent, he could have sued them in front of the B.C. Superior Court
and won—just as he actually did. On the other hand, had he previously applied
for and obtained citizenship in the Coast Salish nation, things get complicated.
We have first to remember that an initiation is not a punishment. So, the Coast
Salish justice system might have become involved only after the initiation, to
deal with Peters’s complaint against his initiators. But remember that in the
Nisga’a accord, self-government remains subject to provincial and federal
laws, as well as to the Canadian Charter of Rights and Freedoms. So, Peters
could just as well have gone to the B.C. Superior Court and claimed that his
rights under the common law and the Charter had been violated—and he likely
would have won.
Under the Nisga’a regime, then, the integrity of such traditional practices as
syewen remains vulnerable to the consent at any time of the person who is being
“helped,” and who may well be considered deviant by the community. In other
ords, under the Nisga’a regime, the outcome of the Peters initiation could easily
have been the same as what actually happened: a whitestream lawsuit would
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IJCS / RIÉC
have delegitimated syewen as a means of social control, and therefore
destructured the Salish people as a self-governing community.
It follows from this exploration of differences between Aboriginal and
occidental ways, and from our evocation of Aboriginal justice, that we should
not assume that a system of Aboriginal justice would merely mirror the current
system, but with a staff of Aboriginals: that judges, cops, prison guards, etc.
would do basically the same jobs but would be “Indians.” We have seen that
initiations without consent should be seen as dealing with individuals in need of
spiritual healing rather than as dealing with criminality. No judges, cops or
prisons are needed for this; which is not to say that they would completely
disappear. Modernity and Aboriginality, then, have different institutional ways
of exercising social control over deviance. Because of this, if an Aboriginal
justice system is to genuinely function according to Aboriginal criteria, it likely
requires the context of wide-ranging Aboriginal self-government—and that
means a degree of self-government greater than what the Nisga’a have been
able to obtain.
Social control among Aboriginal peoples would be likely to distribute
normality and deviance in ways different from those of modernity: some people
may be labelled deviant in one context but not in the other, and some deviants
whom modernity would allocate to its justice system would, for example, be
subjected to Aboriginal spiritual and/or therapeutic processes. There would
undoubtedly be fewer Aboriginals in jail, among other reasons43 because fewer
would be treated as criminals and more as wounded spirits. The revitalization of
Aboriginal spiritual traditions in the last several years is a sign that many
Aboriginal communities would be equipped to meet the challenge. Chances are
that this would result in more harmony in Aboriginal communities, and
between Aboriginal people and whitestream Canadians. But if Canadian courts
are waiting on the sidelines to trump Aboriginal processes in the name of the
Canadian Charter, statute and common law, the self-control that First Nations
appear to be gaining will be little other than window dressing.
Responding to a statement by the defendants’ counsel to the effect that “the
application of the common law approach to their activity has had a profound
negative affect (sic) on the whole of the Coast Salish Nation,” Judge Hood
found it “questionable whether in fact the common law does necessarily
infringe on the Aboriginal right” (157). In other words, while syewen itself may
be a right, conducting a forced initiation may not be an integral part of that
right—without even having to consider issues of common law. This is clearly
absurd, as it ignores the role that syewen obviously plays (at least in some cases)
as a form of social control. The only option left, then, is to limit the practice of
syewen to its consenting (and most frequent) variant by claiming the
paramountcy of the common law—which is exactly what Judge Hood ends up
doing. Which means that the defense’s claim that the common law approach is
injurious to the whole Coast Salish Nation, stands—as should be obvious
anyway, since the Nation’s own cultural practices are superseded by foreign
ones.
Judge Hood could have found how culturally important the integrity of syewen
is by paying serious attention to Amoss’ Coast Salish Spirit Dancing, which the
30

defense provided him. And he needed not search any further than The Canadian
Encyclopedia to find that syewen is at the core of a religious revival among
Northwest Coast peoples; that its practice is accounted for in “institutional
myths,” one of the three main types of Aboriginal myths in Canada; and that it is
one instance of the Guardian Spirit Quest, which “once occurred throughout
most of the tribal groups in Canada.”44 The fact that this Quest is largely a thing
of the past is the result of exactly the type of cultural authority which Judge
Hood exercised so serenely.
Not seeing that to subject syewen to the common law is destructive of Coast
Salish culture is to display just the kind of arrogant ignorance that has come so
close to destroying Aboriginal cultures. If the Nisga’a treaty is any indication,
the time is not over when the Canadian state bullied Aboriginal peoples into
subordination. What prospect this offers for First Nations’ future development
in Canada is far from encouraging.
Notes
Aboriginal Rights In / And Canadian Society
1. I want to thank Danyèle Lacombe, Barbara Marshall, David Schneiderman, the IJCS
Editorial Board and two anonymous reviewers for helpful comments on various versions of
the work presented in this paper. In writing this, I benefited from a year’s sabbatical leave
from the Faculté Saint-Jean, University of Alberta, and from the hospitality of the
Departments of Sociology at the Université de Montréal and the University of Victoria.
2. Quoted in Ray Monk, Ludwig Wittgenstein. The Duty of Genius, London, Vintage, 1991,
p.514.
3. Although the events reported here are on the public record, the fact remains that the legal
process robbed a number of individuals of their privacy, forcing some of them to speak of
cultural practices which they would have preferred to keep quiet. The cultural practices in
question are in fact not a secret—they have been described in the anthropological
literature—but practitioners of syewen are often offended by these descriptions; as well,
these specific individuals were forced into talking. Dealing ethically with such a situation is
not a simple matter, and no one strategy will satisfy all readers. Legal scholars will be
frustrated by a decision to change all names of persons, while some members of First Nations
may find that too much is being said. I have adopted a strategy consistent with frequent
sociological practice, designed to protect the privacy of the people involved while remaining
sufficiently specific to be instructive on the issues at hand. All names of persons have been
changed, except that of B.C. Superior Court Justice Sherman Hood; I will refer to the case as
Peters v. Campbell. As well, local place names have been changed, while those of the region
(Vancouver Island) and people (Coast Salish) have not. I cannot identify either the
judgement’s coordinates or the newspaper article analyzed here. I do provide page numbers
for quotes from the judgement, for those who already know the case, and for those who
would want to study the case further; the latter can write me to ask for full references,
explaining why they need them, and committing to maintaining the privacy of those
involved. Should someone be tempted to track down the sources on the basis of the fairly
specific information presented in these pages, I can only hope that s-he would also undertake
to respect the participants’ privacy.
4. “Syewen” is generally translated into “spirit dancing,” to the dismay of those who practise
it—they consider it a demeaning mistranslation. I will, consequently, leave it untranslated. I
have, however, simplified its spelling somewhat, removing the diacritical marks used by
anthropologists (see for instance Pamela Amoss, Coast Salish Spirit Dancing: The Survival
of an Ancient Religion, Seattle and London, University of Washington Press, 1978; and
Wayne Suttles, Coast Salish Essays, Vancouver and Seattle, Talon Books and University of
Washington Press, 1987) but retaining—to my ear, anyway—much of the resemblance to
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IJCS / RIÉC
the spoken word as I have heard it from members of the Longhouse, the practitioners of
syewen.
5. By “whitestream” I am referring to the overwhelming majority of Canadians, who identify
primarily with the dominant values of modernity, of liberal democratic societies. Especially
in the context of discussions of their relations with Aboriginals, those Canadians are
typically labelled “white;” and the dominant values of Canadian society are clearly
European in origin, and as such “white.” But there is now a sizeable number of people of
colour in Canada, such that to speak of “white society” is abusive. Hence “whitestream,” a
term which I am adapting somewhat freely from feminist scholarship’s concept of “malestream.”
6. This paper presents elements of an analysis is more fully developed in my forthcoming We
Are Not You. First Nations and Canadian Modernity, Peterborough (On.), Broadview Press,
Series “Terra Incognita”, 1997.
7. Ralph Akiwenzie, “We want to do it our way,” The Globe and Mail (G&M), 6 March 1992.
8. See “Georgian Bay” and “Huron” in The Canadian Encyclopedia, Volume 2, Edmonton,
Hurtig Publishers, 1985; also, “huron” in Le Petit Robert 1, Paris, S.N.L.—Dictionnaire Le
Robert, 1978.
9. It is not, however, a sure thing, and not only because constitutional recognition of “inherent
right” has not been forthcoming: the government of Manitoba rejected the recommendation
of its Aboriginal Justice inquiry, and the then-federal justice minister also rejected a separate
system, describing it as “a copout,” a virtual admission that Aboriginals “are people that
cannot be served by the so-called, hypothetical mainstream system. . .” On the other hand,
the Saskatchewan government, relying on the Manitoba inquiry’s report, promised to
implement a parallel justice system for Aboriginals. See “Separate native justice rejected for
Manitoba,” G&M, 29 January 1992; “Separate native justice system would be ‘copout’”
G&M, 31 January 1992; “Saskatchewan moves toward native justice,” G&M, 1 February
1992.
10. See for instance “Blood tribe puts own mark on justice system” and “New police grads take
posts on reserve,” The Edmonton Journal, 14 March 1992; a report by Holly Doan on CBC’s
Sunday Report, 19 July 1992; and Rupert Ross, Dancing with a Ghost. Exploring Indian
Reality, Markham (On.), Octopus Publishing Group, 1992.
11. There are a few minor exceptions, but approximately one hundred native bands have been
unable to obtain any kind of settlement with the B.C. government for claims that cover a
large majority of the province’s territory. Settlement of the Nisga’a claim is seen as marking
the beginning of the end of this situation. On the history of the Nisga’a claim, see Olive
Patricia Dickason, Canada’s First Nations. A History of Founding Peoples from Earliest
Times, Toronto, McClelland & Stewart, 1992.
12. Indeed, the Supreme Court of Canada’s decision in Calder v. Attorney General led Prime
Minister Pierre Trudeau to agree that “there was a legal case for Aboriginal rights, in spite of
his earlier rejection of the concept. Conceding that Amerindians have more rights than he
had recognized in the White Paper of 1969, he entrenched them without definition in the
Constitution of 1982, despite a determined assault by the provincial premiers to prevent it.”
(Dickason, Canada’s First Nations. . ., 349-50)
13. Government of Canada, Province of British Columbia and Nisga’a Tribal Council, Nisga’a
Treaty Negotiations. Agreement-in-Principle, 15 February, 1996. After this Agreement-in-
Principle is ratified by the three parties, a variety of details will remain to negotiate in order to
produce a Final Agreement. Consequently, the Nisga’a do not as yet have a Treaty; for the
sake of brevity, however, I will refer to the Nisga’a Treaty, herein, to designate the
Agreement-in-Principle which is highly likely to be the core of the future treaty.
14. The A.F.N. model of self-government was itself considered overly moderate by the Alberta
Treaty Chiefs and the Mohawk Nation, among others, who boycotted the Charlottetown
process and referendum.
15. Mary Ellen Turpel, “Aboriginal Peoples and the Canadian Charter: Interpretive
Monopolies, Cultural Differences,” Canadian Human Rights Yearbook 1989-1990, Ottawa,
University of Ottawa Human Rights and Education Centre, 1990, 13.
16. For an important take on the issue of justice and otherness, however, see Drucilla Cornell,
The Philosophy of the Limit, New York and London, Routledge, 1992.
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Aboriginal Rights In / And Canadian Society
17. Michel Foucault, L’usage des plaisirs. Histoire de la sexualité, volume 2, Paris, Gallimard,
1984, 14,15.
18. The reasoning underpinning the decision is less clear. Relying mainly on three historic
decisions (Delgamuukw v. The Queen (1989), 38 B.C.L.R. (2d); Regina v. Sparrow [1990]
70 D.L.R. (4th); Saumur v. City of Quebec [1953] 2 S.C.R.), Judge Hood noted that “just as
rights guaranteed under the Charter are not absolute, those guaranteed under s. 35 are not
absolute;” he then affirmed, contradictorily it seems to me, that the plaintiff “lives in a free
society and his rights are inviolable” (161, 162; emphasis added). My purpose here is not,
however, to evaluate the internal consistency of the court’s legal reasoning; it is, rather, to
situate it in its inter-cultural context.
19. Turpel, “Aboriginal Peoples and the Canadian Charter”, 4.
20. Lest one thinks Judge Hood’s is a rogue, outdated judgement, it should be realized that he
relied on recent precedent (Delgamuukw v. The Queen) which, in articulating the Canadian
legal tradition on such issues, was no less colonial in its reasoning. See Frank Cassidy (Ed.),
Aboriginal Title in British Columbia. Delgamuukw v. The Queen, Lantzville (B.C.) and
Montreal, Oolichan Books and The Institute for Research on Public Policy, 1992.
21. Thus, it is possible under Canadian law for family members to have an individual declared
mentally incompetent and institutionalized without his or her consent; and ‘treatment’—say,
electroshocks—has often included the infliction of pain and suffering (see A. Alan Borovoy,
When Freedoms Collide: The Case for Our Civil Liberties, Toronto, Lester & Orpen
Dennys, 1988; in particular, Ch. 9 on “Involuntary Civil Confinement”). I hope it is clear that
I am not endorsing, here, any such “treatment;” rather, I am outlining some of the
suspensions of rights that are deemed acceptable by the dominant occidental criteria.
22. See Michel Foucault, Surveiller et punir. Naissance de la prison, Paris, Gallimard,
Bibliothèque des Histoires, 1975.
23. On the difficulties of liberal democracy in dealing with Aboriginal rights, see Michael Asch,
Home and Native Land. Aboriginal Rights and the Canadian Constitution, Scarborough
(On.), Nelson Canada, 1988.
24. Not that reasons, motivations or intentions, should provide the final word to any analysis,
especially one informed by poststructuralist theory. The point, rather, is that an action as
drastic as a syewen initiation is not (as we will see) undertaken lightly, spontaneously or
gratuitously: a forced initiation is part of a complex social process in which participants
deliberate as to what constitutes proper conduct. That such deliberations and reasons are
ruled irrelevant by Judge Hood is part of the problem of cultural / judicial authority.
25. Quoted in Arnold Krupat, Ethnocriticism. Ethnography, History,Literature, Berkeley and
Los Angeles, University of California Press, 1992, 19.
26. See Canadian Daily Newspaper Publishers Association, “A Statement of Principles for
Canadian Daily Newspapers,” April 1977; reproduced in Peter Desbarats, Guide to
Canadian News Media, Toronto, Harcourt Brace Jovanovich Canada, 1990, 231-2.
27. This is how his by-line often identified him, but not for that particular article. On this day, he
was merely presented as part of the “British Columbia Bureau.”
28. Richard V. Ericson, Patricia M. Baranek and Janet B.L. Chan, 1991, Representing Order.
Crime, Law, and Justice in the News Media, Toronto, University of Toronto Press, 1991, 8.
29. Ericson, Baranek and Chan, Representing Order. . ., 7.
30. Although of course she, a practicing lawyer in British Columbia, lives very much within
modernity. Or, perhaps more accurately, modernity lives within her—as it does for all those
whose lives it has been shaping. It is hard to imagine that anyone in Canada, as in much of the
world, escapes this fate.
31. In the Canadian context, see for example the quite popular (and conservative) sociological
essay Mosaic Madness. The Poverty and Potential of Life in Canada, by Reginald W. Bibby,
Toronto, Stoddard, 1990.
32. This indictment, only hinted at in The Globe and Mail, is developed much more fully by
Mary Ellen Turpel in her article “Aboriginal Peoples and the Canadian Charter.”
33. This is partly why, as I have learned from some limited personal experience in reporting,
news articles are written following an “inverted pyramid” model: articles should begin from
the most important news elements and end with the least important. Not only does this allow
editors to cut easily by chopping off the end when space is scarce, but it is a model built on the
assumption that readers often do not finish an article. It is significant in this respect that the
33

IJCS / RIÉC
Aboriginal rationale for the initiation comes at the end of an article that begins with news of a
judicial decision.
34. The book is: Pamela Amoss, Coast Salish Spirit Dancing. . . .
35. Michel Foucault, Le souci de soi. Volume 3: Histoire de la sexualité, Paris, Gallimard,
Bibliothèque des Histoires, 1984.
36. Among a multitude of discussions of this issue, see Charles Taylor’s highly readable and
concise The Malaise of Modernity, Concord (On.), Anansi Press, 1991.
37. “Veil of ignorance,” many readers will know, is a key concept in John Rawls’s liberal A
Theory of Justice, Oxford, Oxford University Press, 1972. Need I say that I am twisting the
phrase beyond of all recognition?
38. On this issue, more below.
39. On this issue, see Amoss, Coast Salish Spirit Dancing; and Wolfgang Jilek, Salish Mental
Health and Culture Change, Toronto and Montreal, Holt, Rinehart and Winston of Canada,
1974. Both Amoss and Jilek indicate that the efficacy of this “therapy” is uneven; but the
issue of whether or not it works is irrelevant here. Besides, although Canada’s justice system,
like that of other liberal democracies, claims to try to rehabilitate convicted criminals, its
actual “redeeming” abilities are—to say the least—limited.
40. Government of Canada et al., Nisga’a Treaty Negotiations. Agreement-in-Principle, 88.
41. See Government of Canada et al., Nisga’a Treaty Negotiations. Agreement-in-Principle.In
the Chapter on “Administration of Justice,” paragraphs 32c and 33 limit the Nisga’a Court’s
jurisdiction to Nisga’a citizens except when the person accepts its authority; and paragraph
36 limits the type of penalties the Nisga’a Court may impose on non-citizens to whitestream
practices. Further, paragraph 35 offers any accused person the option of going to the
Provincial Court of British Columbia if the penalty may be imprisonment.
42. See Nisga’a Treaty Negotiations. Agreement-in-Principle, “Eligibility and Enrolment,”
paragraphs 2, 5 and 10.
43. On the Louis Bull reserve in central Alberta, since a fully autonomous Aboriginal police
force was created seven years ago, the crime rate is reported to have dropped by 60%. Asked
to account for this improvement, a local cop suggested that there was now more respect for
the law among band members. CBC’s Sunday Report, 19 July 1992.
44. The Canadian Encyclopedia, Edmonton, Hurtig Publishers, 1985; articles on “Native
People, Northwest Coast” and “Native People, Religion.”
34

David Schneiderman*
Theorists of Difference and the Interpretation of
Aboriginal and Treaty Rights
Abstract
Judicial recognition of constitutional claims to Aboriginal self-government
can be facilitated, it has been argued, by turning to theories of “difference.”
Difference theory suggests that politics can become more democratic and
inclusive if the perspectives of cultural and political groups marginalized by
dominant political discourse are taken into account. This paper examines the
work of two such theorists and their misplaced faith in judicial
reconstruction. By equating Aboriginal claims to justice with other claims of
subordinated groups, or by attempting to reconstruct common law
interpretations based on Eurocentric formulations, these theorists undermine
recognition of the very difference they seek to promote.
Résumé
Selon certains, il est possible de faciliter la reconnaissance juridique des
revendications constitutionnelles au sujet de l’autodétermination des peuples
autochtones en se tournant vers les théories fondées sur la « différence ».
Pareilles théories laissent entendre qu’on peut mettre en place une politique
plus démocratique et plus englobante quand on tient compte des perspectives
des groupes culturels et politiques marginalisés par le discours politique
dominant. Le présent article examine le travail de deux spécialistes de ces
théories ainsi que leur confiance mal placée dans ce projet de reconstruction
juridique. En mettant en parallèle les revendications des peuples autochtones
et celles de groupes subordonnés ou en tentant de réinterpréter la « common
law»àlalumière des formulations eurocentriques, ces théoriciens minent le
processus de reconnaissance de la différence même qu’ils tentent de
promouvoir.
This paper addresses recent attempts by Anglo-Canadian scholars to redirect
the majority society’s discussion of Aboriginal peoples away from its colonial
suppositions. 1 These scholars have realized that the majority’s approach to
Aboriginal peoples is largely based on Eurocentric characterizations derived
from our colonial heritage. 2 Such suppositions, which portray Aboriginal
peoples as “brutes,” “savages,” having no organized political society or legally
recognizable relationship to the land, constitute the contemporary foundations
for Canada’s sovereignty over Aboriginal peoples and underlying title to their
lands. 3 In other words, the historical fact of these Eurocentric suppositions
provide the continuing bases for justifying Canada’s complete sovereignty
over Aboriginal peoples, made manifest in s.91(24) of the Constitution Act,
International Journal of Canadian Studies / Revue internationale d'études canadiennes
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1867. Recognition of the presence of this past requires reflexive scholarly
production.
Some theorists argue that by acting self-consciously and checking the
continuing operation of this heritage in constitutional law, the majority can
work towards achieving justice for Aboriginal peoples in their claims to
cultural recognition and self-government. This aim is pursued in the scholarly
work of those characterized in this paper as “theorists of difference.” Theorists
of difference critique the universalistic premises of liberalism and abstract
individualism. 4 They argue compellingly that these premises portray only a
partial view of society, ideological in its operation and masking relationships of
domination and subordination. The politics of difference attempts to
reconstruct political and legal theory by accounting for the perspectives of
those who have been oppressed by liberal societies’ penchant for difference
blindness. It resists the false unity of America’s e pluribus unum and its
“colour- blind constitution.” 5
The idea of “difference” is invoked in political and legal theory “to cultivate a
sensitivity towards perspectives that derive from membership in or association
with different cultures, religions, genders and other groups.” 6 Reconceiving a
democratic politics which accounts for difference, according to Iris Marion
Young, would “provide mechanisms for the effective representation and
recognition of the distinct voices and perspectives of its constituent groups that
are oppressed or disadvantaged within it.” 7
Applied to Aboriginal-Canadian state relations, the politics of difference calls
for a recognition of Aboriginal identity and a reorientation of the legal/
institutional mechanisms which mediate those relations. Two theorists, whose
work is reviewed here, look to legal institutions and the judiciary, in particular,
as trailblazers in this reconstruction. 8 This paper aims to interrogate the work of
these theorists of difference who view judicial institutions as the vehicle for
recognizing and mediating differences between the dominant society and
Aboriginal peoples. Although sympathetic to the intellectual projects of both
writers, this author suggests that these theorists of difference either: 1) devalue
Aboriginal claims to sovereignty or title as claims to cultural difference or 2)
misread the crucial judicial pronouncements on which they rely. As a
consequence, their reliance on a judicial interpretation of Aboriginal and treaty
rights reinforces the very problems which they seek to resolve: the Eurocentric
suppositions of our colonial heritage which continue to justify Canadian
sovereignty over Aboriginal peoples. 9
In the Courts of the Colonizers
The supposition of colonial sovereignty and its enduring heritage in
Eurocentric Canadian constitutional law can be traced back, at the very least, to
the contractarian fictions of European thought, exemplified by John Locke. 10
For Locke, human productivity was a morally commendable act. Both God and
reason commanded man “to subdue the Earth, i.e. to improve it for the benefit of
Life, and therein lay out something upon it that was his own, his labour.” 11 It
was through productive labour—the appropriation of nature through
work—that property came to be vested in individuals. In the state of nature,
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Theorists of Difference and the Interpretation
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consent of others was not mandated by Locke, for “[i]f such consent as that was
necessary, Man had starved, notwithstanding the Plenty God had given him.” 12
Appropriation in the state of nature was subject to at least one important
proviso: that one appropriate only as much as leaves “enough, and as good left
in common for others.” 13 For the purpose of preserving and protecting property
(in the large sense of their “Lives, Liberties and Estates”), 14 men subsequently
joined together into political societies. 15
Ignoring all evidence to the contrary, 16 Locke characterized the North
American civilizations as living in that pre-political state of nature he described
in his chapter on property: “in the beginning,” he writes, “all the World was
America.” 17 Aboriginal peoples in America, unaware of the value of their
wealth and indifferent to property, 18 eschewed the productive life and the value
which productive labour generated. There was no better evidence of this, Locke
claimed, than the fact that they, “who are rich in land...having [been] furnished
as liberally as any other people with the materials of plenty...yetforwant of
improving it by labour hav[e] not one hundredth part of the Conveniences we
enjoy.” 19 Thus, a “King of a large and fruitful territory there feeds, lodges, and
is clad worse than a day labourer in England.” 20 These “great tracts of
ground”—the “waste” land of America 21—still lay in “common” and were
available to European powers to appropriate through the productive labour of
European agriculture. 22 What about the proviso on appropriation in the state of
nature that “enough and as good” be left in common for others to appropriate,
which, if not satisfied, then requires the consent of others? As Tully shows,
Locke bypasses this requirement by arguing that the introduction of European
methods of productivity would improve the lives of Aboriginal peoples. 23
Seventeenth-century thought, then, was defined only in relation to an “other,”
which was beyond the capacity for thought and reason and incapable of making
use of the riches available. As Peter Fitzpatrick argues, Aboriginal peoples
became “negative exemplars” of European thought, the definitive example of a
“savage” human nature beyond the ordering capacity of the common law. 24
Locke’s exegeses on productivity and property were incorporated expressly
into the common law by William Blackstone in his Commentaries on the Law of
England. 25 It is unnecessary to recount here the influence of Locke on
Blackstone, or his valorization of labour as the source of property rights and the
rationale for political society. Suffice it to note that Blackstone also turned to
America for the state of nature, where “American nations” lived in their
“primaeval simplicity” until “discovered” by the Europeans. 26 It was
ultimately to the benefit of all mankind that the English common law
“universally promoted the grand ends of civil society ...bysteadily pursuing
that wise and orderly maxim, of assigning to every thing capable of ownership a
legal and determinate owner.” 27 The Lockean heritage ruled Aboriginal
peoples incapable, outright, of being legal and determinate owners.
English colonial policy pursued this grand end by requiring the orderly
settlement of America. The Royal Proclamation of 1763 forbade colonists from
purchasing or settling Aboriginal lands to the west without “special leave and
licence” of the Crown. Rob Williams describes how the American colonists,
hostile to the aims of the Royal Proclamation, seized on Locke’s discourse of
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productivity to claim their “natural rights to acquire and labour upon American
land, thereby converting that land into valuable property.” 28
The orderly disposal of “public lands,” according to Lord Durham, was “the
object of the deepest moment to all, and the first business of government” in the
early part of the nineteenth century. 29 Edward Wakefield, together with
Durham, advocated a system of settlement to relieve the stress of population
growth on Britain, and saw in the new colonies “plenty of room” for colonial
settlers and a means of financing further emigration through the sale of “public
lands.” 30 John Stuart Mill in the Principles of Political Economy endorsed
Wakefield’s plan for raising revenue by emigration. But it had other “greater
recommendations”: “It is a beneficial check upon the tendency of a population
of colonists to adopt the tastes and inclinations of savage life . . .” 31
Chief Justice John Marshall assimilated this common law legacy into colonial
state-Aboriginal relations. He was the first to articulate the legal relationship of
Aboriginal peoples residing within the territorial boundaries of the new United
States to the settlers’ new government. In Johnson v. M’Intosh, 32 Marshall
invoked the concept of discovery to impose United States sovereignty and to
disinherit Aboriginal peoples of their lands. In a dispute between two settlers,
one who had inherited title from the Piankeshaw Indians and another who had
purchased a parcel of surrendered land from the United States government, the
Court confirmed that the United States alone had legal authority to authorize
the sale of Indian territory.
The European powers, all in pursuit of lands in the new world, established a
principle “as between themselves”: “This principle was that discovery gave
title to the government by whose subjects, or by whose authority, it was made,
against all other European governments, which title might be consummated by
possession.” 33 This entitled the European nation making the discovery “the
sole right of acquiring the soil from the natives and establishing settlements
upon it.” 34 Marshall proceeded to collapse the doctrine of discovery—a
principle agreed upon between the “great nations of Europe”—into a right of
the Europeans to the title of the lands they discovered. Aboriginal peoples were
“admitted to be the rightful occupants of the soil, with a legal as well as a just
claim to retain possession of it but their rights to complete sovereignty, as
independent nations, were necessarily diminished.” 35 This was because “their
power to dispose of the soil at their own will, to whomsoever they pleased, was
denied by the original fundamental principle that discovery gave exclusive title
to those who made it.” It was universally recognized that the Europeans could
assert “ultimate dominion” over the soil though it was still in possession of its
original inhabitants. 36
Some excuse, “if not justification,” for these principles could be found for
Marshall “in the character and habits of the people whose rights have been
wrested from them.” 37 When the Europeans arrived, the land was inhabited by
“fierce savages.” Leaving the country in their hands was to “leave the country
as a wilderness.” 38 Resistant to the arrival of the settlers, fierce and bloody wars
ensued. The law which regulated relationships between conqueror and
conquered—requiring the assimilation of the latter into the former’s political
and legal society—was “incapable of application to a people under such
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Theorists of Difference and the Interpretation
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circumstances.” Consequently, a “new and different rule” had to be developed
which was “better adapted to the actual state of things.” 39
That rule required that the Indians’ inferior title give way to European-derived
settler states. 40 “Conquest gives title which the courts of the conqueror cannot
deny,” wrote Marshall, the validity of which “has never been questioned by our
courts.” 41 “However extravagant the pretension of converting the discovery of
an inhabited country into conquest may appear ...ifacountry has been
acquired and held under it; if the property of the great mass of the community
originates in it, it becomes the law of the land and cannot be questioned.” 42 Title
was consummated by the United States in accordance with a principle adhered
to by all of the European powers, while Aboriginal title was limited to
“occupancy” by virtue of the same principle.
In the Cherokee cases, Marshall had the opportunity to revisit the question of
Indian title. In the first case of Cherokee Nation v. Georgia, 43 the Cherokee
sought injunctive relief from the federal court from the oppressive “Indian
laws” enacted by the Georgia legislature which extended the application of
state laws to Cherokee territory in contravention of treaty obligations. Suing as
independent foreign nations, Marshall denied the Cherokee relief on the basis
that they were “domestic dependent nations ...their relation to the United
States resembles that of a ward to his guardian.” 44 Even though the treaties and
acts of congress “plainly recognized the Cherokee nation as a state,” they were
not a foreign state for the purposes of the constitution. 45
Cherokee claims against the oppressive laws of Georgia were vindicated one
year later in the case of Worcester v. Georgia. 46 Worcester was convicted
under one of Georgia’s “Indian laws” that required state permission to be on a
reservation. Finding for Worcester, Marshall held that the state laws were
“repugnant to the constitution, laws, and treaties of the United States.” 47 The
constitution allocated the power to “regulate commerce ...with the Indian
tribes.” Thus, “[t]he whole intercourse between the United States and this
nation is, by our constitution and laws, vested in the government of the United
States.” 48 It was beyond the jurisdiction of the state of Georgia, then, to regulate
relations writ large between American settlers and Aboriginal peoples.
A second branch of the judgment revisited Marshall’s earlier characterization
of tribal sovereignty articulated in Johnson. Here, he more carefully
distinguished between the right of discovery, as the operating principle for the
allocation of rights to land in the “new” world, and the rights of the inhabitants
of those lands. 49 The right of discovery, “could not affect the rights of those
already in possession,” rather, discovery only granted an “exclusive right to
purchase” from the original inhabitants. 50 The members of the Cherokee
nation, in agreeing to the protection of the United States through treaty, did not
abandon “their national character” nor did they submit “as subjects to the laws
of a master.” 51 This second branch of Marshall’s judgment is often cited in
support of the continuing inherent rights of Aboriginal communities to selfgovernment.
But it must not be forgotten that Marshall found for the Cherokee
on the basis of an exclusive federal power (being a strong nationalist himself),
confirming the ward-like status he had described in Cherokee Nation.
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The Marshall legacy has influenced the Anglo-Canadian law of Aboriginal and
treaty rights—particularly that part which deprived Aboriginal peoples of
sovereignty and underlying title to their traditional lands. 52 Aboriginal peoples
havebeentreatedassubjecttotheexclusivepowerofthefederalgovernment. 53
Authority to legislate in regard to “Indians and lands reserved for Indians” is
assigned exclusively to the federal government, appearing as an enumerated
head of power in s. 91(24). The threads of colonial continuity can be followed
from the Privy Council’s ruling in St. Catherines Milling 54 to Justice
MacEachern’s trial ruling in Delgamuukw. 55 Lord Watson declared in St.
Catherines Milling, a federal-provincial dispute concerning interest in
surrendered land, that “the Crown has all along had a present proprietary estate
in the land, upon which Indian title was a mere burden.” 56 Chief Justice
MacEachern of the British Columbia Supreme Court (now of the Court of
Appeal) denied the claim of the Gitksan and Wet’suwet’en peoples to the
ownership and possession of and jurisdiction over their territories, a claim
which they conceded would amount to a burden on the Crown’s underlying
title. Characterizing their pre-contact existence as a Hobbesian war of all
against all—“Aboriginal life in the territory was, at best, ‘nasty, brutish and
short’”—MacEachern found only an entitlement to occupancy for use of
certain vacant crown land. 57 The British Columbia Court of Appeal reversed
this ruling and was careful to distance itself from MacEachern’s Eurocentric
discourse. The majority of the Court of Appeal found that the Gitksan and
Wet’suwet’en peoples had an “organized society, and that the use and
occupation of land and certain products of the lands and waters were integral to
that society.” 58 The Court of Appeal was also prepared to find that they had “an
unextinguished non-exclusive right, other than a right of ownership or property
right...ofasui generis nature.” 59 It was not prepared to find, however, that
self-government jurisdiction survived beyond the establishment of either the
colonial government in the mid-nineteenth century or the joining of B.C. in
confederation in 1871. 60
As the plaintiffs in Delgamuukw recognized, the judiciary has resisted
Marshall’s discussion of discovery in Worcester, preferring to maintain the
myth that discovery gave title not only against other European governments but
against the original inhabitants themselves. 61 Nevertheless, some openings
have emerged, beginning with the Supreme Court of Canada’s split decision in
Calder. 62 The Court was divided over whether general legislation had
extinguished the Nisga’a Nation’s right to use and occupy its traditional lands.
Only after this 1970 decision did the nature of Aboriginal title surviving
European contact become a contestable component of Aboriginal rights
litigation. The Court’s 1984 decision in Guerin disrupted dominant judicial
suppositions by finding that the Musqueam Indian Band had an interest in
surrendered lands that was sui generis but subject to the overriding power of the
Canadian state when it acted in its fiduciary (or “trust-like”) capacity. 63 The
language of Justice Hall in Calder, 64 that proof of a “clear and plain intention”
was required to extinguish Aboriginal rights, emerged as the requisite judicial
standard after the recognition and affirmation of Aboriginal and treaty rights in
s.35(1) of the Constitution Act, 1982. 65 Together with the recognition of the
fiduciary or “trust-like” relationship between the state and Aboriginal
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Theorists of Difference and the Interpretation
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peoples, 66 the judicial approach to Aboriginal and treaty rights has taken a
significant turn towards “accommodating” Aboriginal difference.
Yet, the unquestioned validity of the Crown’s underlying title survived even
the constitutional entrenchment of Aboriginal and treaty rights. In Sparrow,
Chief Justice Dickson and Justice La Forest writing for the Supreme Court held
that, from the outset of colonization, there never was “any doubt that
sovereignty and legislative power, and indeed, underlying title, to such
[Aboriginal] lands was vested in the Crown.” 67 Conscripted by the Court in
support of this proposition is Justice Marshall’s ruling in Johnson. As Michael
Asch and Patrick Macklem have shown, this conclusion, founded upon
ethnocentric Lockean roots, rests upon “unacceptable notions about the
inherent superiority of European nations.” 68
Devaluing Aboriginal title to pave the way for the emigration of “productive”
settlers, judicial reasoning has remained largely static on questions of
sovereignty and underlying title, and unceasing in its support of the settler
states’ superior claims. Despite whatever openings Chief Justice Marshall
furnished to Aboriginal sovereignty in Worcester, the Supreme Court of
Canada, in Calder and Guerin, or the Australian Supreme Court, in Mabo—
what have been called “moments of accommodation” 69—the judiciary has not
moved much beyond traditional common law understandings of Aboriginal
title which justified the basis for colonial sovereignty. Despite these failings,
the theorists of difference curiously portray the judiciary—the Courts of the
colonizer—as a vehicle for challenging these dominant understandings.
The False Equation: Aboriginal Claims as Identity Politics
In response to this Eurocentric legacy, some non-Aboriginal scholars have
turned to the oppositional discourse of difference. This discourse is hoped to
yield radically different understandings in judicial interpretation of Aboriginal
rights and in the political responses of post-settler governments to Aboriginal
claims to sovereignty. Avigail Eisenberg argues that this perspective
“celebrates” difference and aims to protect identity-related differences. 70 The
difference perspective may unsettle colonial-derived understandings and even
banish “judicial bias” from the constitutional landscape. 71
Eisenberg offers just this thesis in her paper on identity and group difference in
Canadian jurisprudence. She rejects the dominant characterization of rights
claims—the zero-sum game of pitting individual against collective
rights—arguing that it clashes with recent Canadian jurisprudence. Rather than
disputes between individuals and communities, recent Canadian jurisprudence
reflects the judicial goal of protecting differences closely connected to
individual and group identity. As an example of this reconstruction of rights
claims,Eisenberg lookstotheSupreme CourtofCanada’sdecision in Sparrow.
The difference approach, she claims, is more faithful to the Court’s response to
the Musqueam’s claim of Aboriginal fishing rights.
The Court in Sparrow identified the integral role salmon fishing played in
providing sustenance for the Musqueam people, even before the arrival of
European settlers. The Court then had to decide whether Musqueam fishing
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rights survived their constitutional recognition and affirmation in s.35(1). As
the sovereignty of the Canadian state over Aboriginal peoples was complete
prior to 1982, Aboriginal rights could be extinguished if the Court discerned a
clear and plain intention on the part of the state to do so. Mere “regulation” of
Aboriginal fisheries being insufficient, the Court went on to consider the
impact of s.35(1) on post-1982 limitations on fishing rights. Here, according to
Eisenberg, the Court “sanctioned for the Musqueam band different and more
advantageous fishing rights” than those available to other individuals. 72 This
was because their constitutional recognition and affirmation required that any
conservation measures grant priority to Indian food fishing. Even though this
entailed “discrimination” for those engaged in the commercial and sport
fisheries, they would have to bear the brunt of the province’s conservation
measures. The Musqueam won, writes Eisenberg, because s.35(1) was
interpreted as protecting Aboriginal identity and because the Musqueam
argued convincingly that their “identity was threatened” by B.C.’s fishery
regulations.
Reading the decision as a victory of collective over individual rights would be
“inaccurate” writes Eisenberg. An identity-based reading is more correct
because what the Musqueam won was the protection of Aboriginal identity, not
the vindication of a collective right. Consequently, “only identity-related
difference[s] of sufficient significance” would qualify for constitutional
protection. 73 One should agree with Eisenberg that a proper understanding of
this case is critical to future Aboriginal and treaty rights litigation, as it was the
Court’s first interpretation of the constitutional recognition and affirmation of
Aboriginal and treaty rights in s.35(1). One would be inclined, therefore, to
eagerly welcome Eisenberg’s sympathetic reconstruction of that case.
Unfortunately, her interpretation fails on a number of counts.
First, Eisenberg does not speak of the Supreme Court of Canada’s reading of
s.35(1) which condones the unilateral extinguishment of Aboriginal treaties
and rights prior to 1982 if done with “clear and plain intent.” She does admit that
the decision is by no means “immune from criticism,” but does not distinguish
her analysis of the decision from the criticisms it has generated. 74 In this way,
she accepts, perhaps unwittingly, the continuing colonial justifications for
Canadian state sovereignty over Aboriginal peoples.
Second, she appears to endorse the Supreme Court’s test of justification for
post-1982 limitations on Aboriginal and treaty rights. The Court accepted that
such limitations, even denials, could occur if they met a test of reasonableness
similar to the one the Court has adopted for infringements of Charter rights. 75
The state may limit or extinguish rights where there is a valid legislative
objective, the rights limitation is as consistent as possible with their recognition
and affirmation in the constitution, and rights are infringed as little as possible.
The Court also indicated that further questions could be addressed, “depending
on the circumstances”—for example, whether compensation in the case of
appropriation is fair and whether consultation with the Aboriginal peoples in
question has occurred. Thus, the Court affirmed Canadian sovereignty and
Parliamentary and legislative supremacy over Aboriginal peoples without also
requiring the consent (or even consultation with) Aboriginal peoples. 76
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Theorists of Difference and the Interpretation
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Eisenberg, by celebrating the Court’s analysis, which prioritized Musqueum
food fishing rights over commercial and recreational fishing, also implicitly
affirms the Court’s method of obtaining that result.
Third, and perhaps more significantly, Eisenberg devalues the solemn
agreements and understandings reached between European-derived settler
states and Aboriginal peoples. Although no written treaties have existed (until
recently) in B.C., Aboriginal peoples believe that their traditional rights
survived the establishment of the Canadian state. That is, these express and oral
understandings of Aboriginal-Canadian state relations are not merely
“expressions of difference,” but solemn agreements, tantamount, as the Court
has said elsewhere, to “nation-nation relations.” 77 They are not simply
identity-related differences, but claims founded in the legal text of the treaties
and oral understandings, manifesting the sovereign rights of Aboriginal
peoples. 78
Eisenberg’s failure in this regard is confirmed in a footnote, where she writes
that the Sparrow decision “does not preclude the hypothetical possibility of
other groups securing similar fishing rights in the area if they can make the
same sort of argument that the Musqueam made.” 79 This “logic of
equivalence” between oppressed minorities hardly does justice to Aboriginal
rights claims. 80 Eisenberg conflates Aboriginal claims with those made by
other groups distinguished by their “difference” to the dominant society. This
equivalency undermines the very essence of Aboriginal “difference” and,
hence, the very objective of her analysis.
Lastly, Eisenberg fails to take into account the tainted basis of Canadian
sovereignty over Aboriginal peoples and their lands founded on the
Eurocentric discourse of Lockean productivity. As mentioned above, the Court
expressly states that the Crown’s underlying title is beyond doubt. The abject
legacy of colonialism remains intact. Yet Eisenberg seems unphased by this
admission. The decision, for her, simply represents the virtue of the difference
perspective as a means of preserving Musqueam identity within the Canadian
state. 81
The Misplaced Faith: Aboriginal Claims and the Hidden Constitution
An engaging account of the conflict between settler states and Aboriginal
peoples can be found in James Tully’s Strange Multiplicity. Tully provides a
trenchant critique of what he calls “modern constitutionalism,” rooted in the
contractarian tradition and exemplified by the writings of John Locke. Modern
constitutionalism masquerades as a universal norm when, in fact, it defines
sovereignty according to European standards, thereby dispossessing
Aboriginal peoples of both their sovereignty and their property.
Tully argues that an alternative understanding of constitutionalism, one that
recognizes and accommodates cultural diversity, can be gleaned from the
“hidden [or ancient] constitutions of contemporary societies.” 82 These “hidden
constitutions” can be found in two different sites: (1) “in the writings and
constitutional arrangements of agents of justice who have sought to come to
terms with powerful, non-European cultures, immigrants, women and
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linguistic and national minorities fighting for cultural survival”; and (2) “in the
applications of constitutional law in particular cases, particularly in the
common law, where the language of constitutionalism has been shaped to fit the
reality of cultural diversity.” 83 Hidden constitutions disclose three conventions
which Tully wishes to retrieve: mutual recognition, continuity and consent. For
Tully, one “agent of justice” who confronted the problems posed by the three
conventions was Chief Justice John Marshall, who “classically formulated” the
problem by recognizing Aboriginal peoples as self-governing nations. 84
In Worcester, Tully writes, Marshall delved deep into the sources of common
law constitutionalism, the Royal Proclamation, and the written and oral
Aboriginal accounts of the treaties which, together, reflect the “ancient
constitution” and form part of US constitutional law and commonwealth
common law. 85Tully argues that Marshall rejected Lockean arguments that the
consent of Aboriginal peoples was unnecessary for the Europeans to settle in
North America, or that Aboriginal peoples could simply be treated as
individuals or cultural minorities within sovereign European institutions.86
Drawing on only one of the branches of the Worcester opinion, Tully praises
Marshall’s reformulation of the doctrine of discovery as simply a principle
agreed to among the European powers themselves. The doctrine did not give
the Europeans the right to settle and acquire lands without Aboriginal consent.
Tully concludes that Marshall “repudiat[ed] his earlier judgment in Johnson ...
that the Crown gained title by conquest...[and] states that the wars against the
Indians were defensive and did not convey title.” 87 Marshall’s argument
provides the foundation for the treaty system, which was a vehicle of mutual
consent and recognition, and provides for the continuity of that relationship
between equal and self-governing nations. Rather than being disrupted by
modern notions of discontinuity by conquest, consent or extinguishment, the
convention of continuity carries the ancient constitutions into the modern
world, “thereby rendering the constitutions of contemporary societies different
from constitutional representations of them.” 88
It is correct to argue that one branch of Marshall’s argument narrowed the
doctrine of discovery and recognized the sovereign-to-sovereign relations that
existed between the treaty-making nations. Marshall noted, after all, that the
words “treaty” and “nation” were our words “having a definite and well
understood meaning.” 89 It also is true that Marshall was genuinely sympathetic
to the plight of the Cherokee. 90 But it is incorrect to claim, as does Tully, that
Marshall “repudiated” his earlier judgment in Johnson.
The other branch of Marshall’s opinion, evidently the decisive reason for
finding in favour of Worcester, was the federal government’s exclusive power
to regulate the affairs of Indians in the United States. 91 That federal power
formed the central basis for Marshall’s decision is confirmed by his approving
reference to an 1819 act of Congress which made “provision for the civilization
of the Indian Tribes,” designed to “introduce among them the habits and arts of
civilization.” 92 The Act enabled the regulation of tribes so as to “instruct them
in the mode of agriculture ...teaching their children reading, writing and
arithmetic” with the object, according to Marshall, of “civilizing and
converting them from hunters into agriculturalists.” 93
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Cumulatively, Marshall’s decisions in Johnson, Cherokee Nation and
Worcester, simply left Aboriginal peoples at the mercy of the federal
government which, under the presidency of Andrew Jackson in 1832, had only
two alternatives in mind: either Indians were to be civilized or dispossessed. 94
As Edward White concludes:
The officials of that [federal] government were acknowledged to have
the power to do what Georgia had done: place Indians in the position
of abandoning their cultural heritage—becoming “civilized”—or
being dispossessed of their land and forced to emigrate. 95
While the decision was beneficial for the Cherokee, 96 jurisprudentially, things
remained exactly the same. 97 Marshall virtually acknowledged that justice
could not be obtained by the Cherokee in the “courts of the conqueror.” After
all, the Cherokee were denied standing to sue in federal court against the actions
of the state of Georgia. While Marshall’s treaty-based analysis “qualified many
of the extreme applications of the doctrine of discovery that his earlier opinions
appeared to sanction” writes Rob Williams Jr., “the Marshall Court decisions
failed to establish meaningful legal protections for Indian cultural survival
from the white majority society.” 98 Worcester, according to Jill Norgen, was
both a “lifeline and a hollow hope,” in large part due to the equivocating
language of Justice Marshall.
The Marshall model, with its legacy of qualified Indian title, domesticdependent
nationhood status, guardian-ward analogy and exclusive federal
authority in Indian affairs, continues to be relied upon in U.S. courts as the
defining basis for federal-tribal relations. Indeed, all of the English-derived
settler states, including Canada, have incorporated one or more of these
principles into their own framework of indigenous “rights.” 99 As we have seen
in Sparrow, all that is required for the state to interfere with Aboriginal and
treaty rights is that it satisfy a test of justification.
It is significant, then, that Tully looks to the judicial architect of the subservient
status of Indian tribes in the United States as the model of his “agent of justice.”
Despite the well-meaning intentions of Tully, and other theorists of difference,
their working within the framework of the colonial legal legacy does neither
justice to their objectives nor to the claims of those who have been dispossessed
by that legacy.
Conclusion
These two Anglo-Canadian theorists of difference, then, fail to rise above the
colonial premises they wish to expel from legal and political theory. On the one
hand, Eisenberg creates a false equivalency between Aboriginal claims to
fishing and respect for cultural difference, without distinguishing between
these latter claims and Aboriginal claims to sovereignty and title. Tully, on the
other hand, with a much richer understanding of Aboriginal claims to
sovereignty, misreads the legal opinions which emerge from, and thereby
misplaces his faith in, the courts of the colonizer. Both fail to take fully into
account the unwillingness of courts to invalidate the root assumptions of
colonization that continue to operate in the jurisprudence of Canadian
Aboriginal law. 100
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Relying on a traditional model of judicial review, in which the courts act as a
check on majoritarian excesses, is perhaps the habitual mistake by these
theorists of difference. Scholars seeking to vindicate the claims of subordinate
groups frequently understate the structural constraints which impede the courts
of law from “doing the right thing.” Examining the U.S. experience in this
regard, Girardeau Spann has written that, despite the operational safeguards of
life tenure and salary protection, the judiciary even at its highest levels, is
“better understood as serving the veiled majoritarian function of promoting
popular preferences at the expense of minority interests.” 101 Understood in this
way, there is no “meaningful difference between Supreme Court adjudication
and ordinary politics.” 102
This is not to say that Aboriginal peoples should not be expected to litigate
claims in the courts. Those parts of Marshall’s opinion in Worcester, Hall’s
judgment in Calder, or Lamer’s ruling in Sioui that affirm the qualified
sovereignty of Aboriginal peoples serve to lessen the heaviness of the earlier
Marshall, the Watsons and the MacEacherns. Yet, as Paul Patton writes about
the Australian High Court decision in Mabo, “the hierarchy of cultures and
powers established at colonization remain essentially intact.” 103 Clearly, the
perceived role of an insurgent judiciary as vanguard of Aboriginal rights must
be understood as misplaced, and the role of the Supreme Court of Canada
considered less significant than it has been to date. Instead, Anglo-Canadian
scholars should undertake, with vigour, the dual challenge of both discrediting
and radically reconstructing the constitutional common law of Aboriginal
rights.
Although not entirely in accord with the view taken here, the Report of the
Royal Commission on Aboriginal Peoples suggests the direction of such a
reconstruction. Despite the colonial remnants in contemporary Aboriginal and
treaty rights jurisprudence, the Commission adopted an optimistic view of the
judiciary’s potential to be a partner in that enterprise. After reviewing the role of
the courts in generating an ambiguous legacy of Aboriginal rights
jurisprudence, the Commission asked whether “Canadian courts and the
Canadian government” can “change gears” and abandon the remnants of
colonialism. The Commission indicated “there is reason for optimism” as the
courts “have come a long way” from St. Catherines Milling to Guerin and
Sparrow. 104 The tenor of the five-volume report, however, is directed at
political “reconciliation and regeneration” achievable by federal, provincial
and Aboriginal governments working together rather than via the unsteady
hands of judicial interpretation.
The Royal Commission’s emphasis on political-legal reconciliation
underscores the need to distinguish between Aboriginal peoples fight for
decolonization and other struggles. The Commission directed itself to this
point in its discussion of the elements necessary for the renewal of Aboriginal-
Canadian state relations. One of the requisite elements is the need for
Canadians to come to a “better understanding” of the place of Aboriginal
peoples in Canadian society. According to the final report, “Canadians need to
understand that ...equating Aboriginal peoples with racial and cultural
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Theorists of Difference and the Interpretation
of Aboriginal and Treaty Rights
minorities is a fundamentally flawed conception.” 105 The Commission
observed that it is:
the continuing nation-nation character of the Aboriginal/Canada
relationship that differentiates the status of Aboriginal peoples from
that of other people in Canada. Because of this, Aboriginal peoples are
not cultural minorities in the sense that Canadians have come to
understand theterm. Neither arethey citizens with aslightly expanded
set of rights based on their descent from the original inhabitants.
Aboriginal people have historical rights. They form distinct political
communities, collectives with a continuing political relationship with
the Canadian state. This is the central reality that Canadians must
recognize if we are to reconstruct that relationship. 106
It is particularly ironic that some “theorists of difference” would generate
equivalencies across social movements that negate the very difference they
assert. This move may be justified on the basis of its “strategic” effect: it
presents an appearance of theoretical unity and social solidarity in the face of a
larger hegemonic system of social domination. The move amounts to a form of
“strategic essentialism” familiar to feminist theorists who acknowledge that
gender differences are “contingently formed” yet can be deployed strategically
to “unsettle existing inequities.” 107
Much can be gained politically by searching for common ground between
Aboriginal claims for justice and the demands of other equality-seeking
groups. Coalition-building and joint political action are strategies which no
subordinated group should abandon. But this must be done with an
understanding that the aspirations of Aboriginal peoples are not simply to be
treated as vestiges of cultural differences, but those of nations disinherited by
the unquestioned operation of the colonizer’s constitutional law.
Notes
* Executive Director, Centre for Constitutional Studies, University of Alberta. This paper was
presented as part of the 1996 Richard Frucht Memorial Lecture Series, Association of
Graduate Anthropology Students, University of Alberta. Many thanks to Michael Asch,
Joyce Green and Bruce Ziff for support, to Catherine Bell for last-minute advice, and to
Shirleen Smith for the invitation to present this paper. I am particularly grateful for the
comments of an anonymous reader. All errors remain my own, despite all of their good
advice.
1. I use the term “Aboriginal peoples” to mean First Nations, Métis and Inuit as they are
referred to in s.35 of the Constitution Act, 1982.
2. Eurocentrism, in this account, refers to the sanitizing “Western history while patronizing and
even demonizing the non-West; it thinks of itself in terms of its noblest achievements—
science, progress, humanism—but of the non-West in terms of its deficiencies, real or
imagined.” See Ella Shohat and Robert Stam, Unthinking Eurocentrism: Multiculturalism
and the Media (London: Routledge, 1994), 3.
3. It might be argued that the treaties conferred sovereignty on the Canadian state
(notwithstanding the fact that in a number of provinces and territories, no treaties exist). On
this see James [sákéj] Younglood Henderson, “Empowering Treaty Federalism,”
Saskatchewan Law Review 58 (1994), 241-329.
4. And its Aristotelian conception of equality (“treating like cases alike”).
5. See generally Christine Sypnowich, “Some Disquiet About Difference” in J. Hart and R.
Bauman, eds., Explorations in Difference: Law, Culture and Politics (Toronto: University
of Toronto Press, 1996), 117-134.
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6. Avigail Eisenberg, “The Politics of Individual and Group Difference in Canadian
Jurisprudence,” Canadian Journal of Political Science 27 (1994), 1-21, 9.
7. Such representation implies institutional mechanisms such as ...“having veto power
regarding specific policies that affect a group directly, for example, reproductive rights for
women, or use of reservation lands for Native Americans.” See Iris Marion Young, “Polity
and Group Difference: A Critique of the Ideal of Universal Citizenship,” Ethics 99 (1989),
250-274, 261-262.
8. Although not admittedly the exclusive vehicle.
9. As Patrick Macklem argues, the fact of prior sovereignty provides a normative basis for
Aboriginal claims to distributive justice and equality. See Macklem, “Distributing
Sovereignty: Indian Nations and Equality of Peoples,” Stanford Law Review 45 (1993),
1311-1367.
10. See James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity
(Cambridge: Cambridge University Press, 1995); Tully, “Aboriginal Property and Western
Theory: Recovering a Middle Ground” in Ellen Frankel Paul, Fred D. Miller, Jr., and Jeffrey
Paul, eds., Property Rights (Cambridge: Cambridge University Press, 1994), 153-180;
Tully, “Placing the ‘Two Treatises’” in Nicholas Phillipson and Quentin Skinner, eds.,
Political Discourse in Early Modern Britain (Cambridge: Cambridge University Press,
1993), 253-280. I discuss Locke’s treatment of property and productivity and its reception
into the common law of the constitution in David Schneiderman, “Constitutional
Interpretation in an Age of Anxiety: A Reconsideration of the Local Prohibition Case,”
McGill Law Journal 41 (1996), 411-460.
11. John Locke, Two Treatises of Government, ed. by Peter Laslett (Cambridge University
Press, 1988), §2:26, 286 (all further references are to paragraph and page numbers in this
edition).
12. §2:28, 288.
13. §2:27, 288; §2:33, 291. This has been called the “sufficiency” limitation. The other proviso
was that we take no more property than that which will not spoil or be destroyed—the
“spoilage” limitation (§2:31, 290). Jeremy Waldron argues that the sufficiency limitation is
subsumed (being merely an affect of) the spoilage limitation. See Waldron, The Right to
Private Property (Oxford: Clarendon Press, 1988), 210-211. With the introduction of
money, these limitations are overcome as all that is required to fulfill the sufficiency proviso
is that people be able to work, guaranteeing the satisfaction of, at least, subsistence levels in
the case of wage-labourers. See Ian Shapiro, The Evolution of Rights in Liberal Theory
(Cambridge: Cambridge University Press, 1986), 93.
14. §2:123, 250.
15. §2:124, 350-351.
16. Peter Fitzpatrick, The Mythology of the Modern Law (London and New York: Routledge,
1992), 69.
17. §2:49, 301.
18. Alexis de Tocqueville, Democracy in America, ed. by J.P. Mayer (New York: Harper & Row
Publishers, 1969), 281.
19. §2:41, 296-97.
20. Ibid.
21. §2:45, 299.
22. Tilling, planting, improving and cultivating, for example. See 2:32, 332.
23. §2:37, §2:41. See Tully, Strange Multiplicity, 74-75; Tully, “Aboriginal Property and
Western Theory,” 160-161.
24. Fitzpatrick, The Mythology of Modern Law, 63, 80.
25. Introduction by S.N. Katz (Chicago & London: University of Chicago Press, 1979)
[facsimile of the first edition 1765-1769]. See Schneiderman, “Constitutional Interpretation
in an Age of Anxiety,” 419-421.
26. Bk.II, c.1, 3.
27. Bk.II, c.1, 15.
28. Robert A. Williams, Jr., The American Indian in Western Legal Thought: The Discourses of
Conquest (New York: Oxford University Press, 1990), 247.
29. Lord Durham’s Report, ed. by G.M. Craig (Toronto: McLelland & Stewart, 1963), 110.
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Theorists of Difference and the Interpretation
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30. Edward Gibbon Wakefield, A View of the Art of Colonization (Oxford: Clarendon Press,
1914), 79.
31. John Stuart Mill, Principles of Political Economy, ed. by Donald Winch (London: Penguin
Books, 1970), 339.
32. 21 U.S. (8 Wheat.) 543 (1823).
33. Ibid., 573.
34. Ibid.
35. Ibid., 574.
36. Ibid.
37. Ibid., 589.
38. Ibid., 590.
39. Ibid., 591.
40. See Williams, The American Indian in Western Legal Thought, 312-316.
41. Johnson, 587-588.
42. Ibid., 591.
43. 30 U.S. (5 Pet.) 1 (1831).
44. Ibid., 17.
45. Ibid., 16.
46. 31 U.S. (6 Pet.) 515 (1832).
47. Ibid., 561.
48. Ibid., 561.
49. Ibid., 543-544.
50. Ibid., 544.
51. Ibid., 555.
52. According to Brian Slattery, the “Marshall decisions are as relevant to Canada as they are to
the United States, and have often been cited in Canadian courts.” See “Understanding
Aboriginal Rights,” Canadian Bar Review 66 (1987), 727-789, 739.
53. Aboriginal peoples also are subject to provincial laws of general application. See section 88
of the Indian Act, R.S.C. 1970, c.I-6 and discussion in Slattery, “Understanding Aboriginal
Rights,” 776-780.
54. St. Catherine’s Milling and Lumber Co. v. The Queen, [1888] 14 AC 46.
55. (1991) 79 D.L.R. (4th) 185 (BCSC), reversed (1993), 104 D.L.R. (4th) 470 (BCCA).
56. St. Catherine’s Milling, 58.
57. Delgamuukw, 451.
58. Delgamuukw (1993), 543.
59. Delgamuukw (1993), 547.
60. See Delgamuukw (1993), 519 and the discussion in Bruce Ryder, “Aboriginal Rights and
Delgamuukw v. The Queen” (1995) 5 Constitutional Forum 43-48.
61. See Patrick Macklem, “First Nations Self-Government and the Borders of Canadian Legal
Imagination,” McGill Law Journal 36 (1991), 382-456.
62. Calder et al. v. A.-G. of B.C., [1973] 34 DLR (3d) 145 (SCC).
63. Guerin v. The Queen (1984), 13 D.L.R. (4th) 321 (SCC).
64. Calder, 210.
65. R. v. Sparrow (1990), 70 D.L.R. (4th) 385, 401 (S.C.C.).
66. Guerin.
67. R. v. Sparrow, (1990) 70 D.L.R. (4th) 385, 404 (SCC).
68. Michael Asch and Patrick Macklem, “Aboriginal Rights and Canadian Sovereignty: An
essay on R. v. Sparrow,” Alberta Law Review 29 (1991), 498-517, 510.
69. Macklem, “First Nations Self-Government and the Borders of Canadian Legal
Imagination,” 452.
70. Eisenberg, “The Politics of Individual and Group Difference in Canadian Jurisprudence,”
10.
71. Ibid., 14.
72. Ibid., 15.
73. Ibid., 17.
74. Eisenberg cites Menno Boldt, Surviving as Indians: The Challenge of Self-Government
(Toronto: University of Toronto Press, 1993), 32-38.
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75. See R.v.Gladstone (1996) 137 D.L.R. (4th) 648 and Kent McNeil, “How Can Infringements
of the Constitutional Rights of Aboriginal Peoples Be Justifed?” Constitutional Forum 8
(1997), 33-39.
76. Moreover, the Court built into the constitutional recognition of Aboriginal treaty rights an
implied limitations clause where no such clause existed. Note that such a clause was
included expressly in the Charter of Rights and Freedoms (s.1) and that this is found in a
different part of the Constitution Act, 1982 than s.35(1). See Kent McNeil, “Envisaging
Constitutional Space for Aboriginal Governments,” Queen’s Law Journal 19 (1993), 95-
136, 103, 105.
77. See Quebec (A.G.) v. Sioui (1990), 70 D.L.R. (4th) 427 (SCC).
78. Tully makes this complaint in “Aboriginal Property and Western Theory,” 169.
79. Eisenberg, “The Politics of Individual and Group Difference in Canadian Jurisprudence,”
15, fn.36 (emphasis added).
80. See Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy: Towards a
Radical Democratic Politics (London: Verso, 1985), 182.
81. Eisenberg, “The Politics of Individual and Group Difference in Canadian Jurisprudence,”
16. As Macklem writes, “Indian government involves more than the conferral of special
rights to engage in particular activities.” See Macklem, “Distributing Sovereignty: Indian
Nations and Equality of Peoples,” 1355.
82. Tully, Strange Multiplicity, 99.
83. Ibid., 100.
84. Ibid., 117.
85. Ibid., 119.
86. Ibid., 123.
87. Ibid., 123.
88. Ibid., 127.
89. Worcester, 559.
90. See G. Edward White, The Marshall Court and Cultural Change, 1815-35 (History of the
Supreme Court of the United States. Volumes III-IV) (New York: Macmillan Publishing
Company, 1988), 729 and Albert J. Beveridge, The Life of John Marshall, Bk. IV (Boston
and New York: Houghton Mifflin Company, 1929), 539ff.
91. Worcester, 561.
92. Chapter 85, 3 Stat. 516.
93. Worcester, 557. For Marshall, “[t]his Act furnishes strong additional evidence of a settled
purpose to fix the Indians in their country by giving them security at home” (ibid.). Passage
of the Act was given impetus by the new President James Munroe’s state of the union
address, that provision be made for the Indians’ “improvement in the arts of civilized life”
(quoted in Herman J. Viola, Thomas L. McKenney: Architect of America’s Early Indian
Policy, 1816-1830 (Chicago: The Swallow Press, 1974), 37-38). For discussion of the
civilization program see Francis Paul Prucha, American Indian Policy in the Formative
years (Cambridge: Harvard University Press, 1962), 219-224 and Prucha, The Great
Father: The United States Government and the American Indians, vol.1 (Lincoln:
University of Nebraska Press, 1984), 151-154.
94. White, The Marshall Court and Cultural Change, 1815-35, 704.
95. Ibid., 736.
96. Phillip P. Frickey, “Marshalling Past and Present: Colonialism, Constitutionalism, and
Interpretation in Federal Indian Law,” Harvard Law Review 107 (1993), 381-440, 405.
97. White, The Marshall Court and Cultural Change, 1815-35, 732. After all, the Cherokee
were not even a party to the Worcester suit. As Nell Newton describes it, Worcester “was
really a defense of federal power over state power, not a defense of Indian tribal
sovereignty.” See Nell Jessup Newton, “Federal Power Over Indians: Its Sources, Scope,
and Limitations,” University of Pennsylvania Law Review 132 (1984), 195-288, 202.
98. Robert A. Williams, Jr., “Sovereignty, Racism, Human Rights: Indian Self-Determination
and the Postmodern World Legal System,” Review of Constitutional Studies 2 (1995), 146-
202, 167.
99. Williams, ibid., 168.
100. See Claude Denis, who writes that the Courts are likely to view with hostility any claim to
authority independent of the Canadian state in “Rights and Spirit Dancing: Aboriginal
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Theorists of Difference and the Interpretation
of Aboriginal and Treaty Rights
Peoples Versus the Canadian State” in Hart and Bauman, Explorations in Difference, 199-
226, 222.
101. Girardeau A. Spann, Race Against the Court: The Supreme Court and Minorities in
Contemporary America (New York: New York University Press, 1993), 3.
102. Ibid., 2.
103. Paul Patton, “Sovereignty, Law, and Difference in Australia: After the Mabo Case,”
Alternatives 21 (1996), 149-170, 159.
104. Canada, Royal Commission on Aboriginal Peoples, Report of the Royal Commission on
Aboriginal Peoples, Looking Forward, Looking Back, volume 1 (Ottawa: Minister of
Supply and Services Canada, 1996), 229.
105. Report of the Royal Commission on Aboriginal Peoples, volume 1, 611.
106. Report of the Royal Commission on Aboriginal Peoples, volume 1, 612.
107. Mary Joe Frug, “Progressive Feminist Legal Scholarship,” Harvard Women’s Law Journal
(1992), 37, 52 and “A Postmodern Legal Manifesto (An Unfinished Draft),” Harvard Law
Review 105 (1992), 1045.
51

Richard Sigurdson
First Peoples, New Peoples and
Citizenship in Canada*
Abstract
While French-English dualism and regionalism have long been treated as the
primary political cleavages in Canada, many Canadians regard race,
ethnicity and culture as equally important dividing lines. Especially pressing
are the political issues stemming from the divisions between Aboriginal and
non-Aboriginal Canadians and between ethnic-cultural minority groups and
the cultural majority. This paper examines the issues raised by First Peoples
and New Peoples as they challenge the Canadian political system to make
room for their distinct aspirations and requirements. This exploration leads
to an analysis of two alternative conceptions of citizenship in Canada: the
liberal-individualist notion of universalist citizenship and the culturalpluralist
notion of differentiated citizenship. Unfortunately, neither of these
alternatives provides a satisfactory model for Canadian citizenship. Hence,
there is a need to look for a third option. Sadly, this third option appears to be
elusive at this time, either as a theoretical ideal or as a practical solution to
the country’s problems.
Résumé
Bien que la dualité linguistique et le régionalisme soient perçus depuis
longtemps comme les principaux clivages politiques au Canada, un grand
nombre de Canadiens et de Canadiennes voient dans la race, l’origine
ethnique et la culture des lignes de démarcation tout aussi importantes. Un
dossier particulièrement pressant est celui des questions politiques découlant
des divisions entre les personnes autochtones et les personnes non
autochtones et entre les groupes appartenant à des minorités ethnoculturelles
et la majorité culturelle. Le présent article examine les
revendications des Premières nations et des nouveaux arrivants qui
contestent le régime politique canadien pour faire place à leurs aspirations et
à leurs exigences distinctes. Cette étude mène à une analyse de deux concepts
de rechange en matière de citoyenneté canadienne : la notion individuelle et
libérale de la citoyenneté universelle et la notion pluraliste et culturelle de la
citoyenneté différenciée. Malheureusement, aucune de ces solutions de
rechange ne fournit de modèle satisfaisant en matière de citoyenneté
canadienne. Par conséquent, il faut trouver une troisième solution. Toutefois,
cette troisième solution demeure insaisissable en tant que concept théorique
ou en tant que solution concrète aux problèmes auxquels est confronté le
Canada.
Every day in Canada, we are reminded of the extent to which the facts of
linguistic duality and regional diversity divide this country in politically
International Journal of Canadian Studies / Revue internationale d'études canadiennes
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IJCS / RIÉC
significant ways. Indeed, these two cleavages—duality and
regionalism—have virtually defined Canadian politics since Confederation.
Yet for many Canadians, the most salient political fact stems not from duality or
regionalism, but from the division between the cultural majorities—either
English- or French-speaking—and the minorities whose culture and identity
are “different” than the dominant ones. This category includes both those
whose ancestors were the original inhabitants of the land and those having
arrived recently from distant shores. (It could be extended, as well, to include
other types of difference—such as gender or sexual orientation—but for the
purposes of this paper we will focus only on ethnic and cultural diversity.) The
overriding problem arising from this cleavage is how these minority cultures
can integrate into a comprehensive Canadian (or Québécois) political
nationality without losing their distinct cultural identities.
This question involves complex issues of citizenship, identity and
difference—themes which spark a firestorm of competing interpretations from
a multiplicity of disciplinary viewpoints. There has been an explosion in
citizenship theory lately, 1 partly as a result of the momentous international
events which have toppled nation-states, changed borders, revived nationalism
and globalized economic and political life. Equally important is the rapidly
increased pace of multicultural and multiracial migration and its effect on the
populations of North America and Western Europe. A huge recent literature
has sprung up dealing with all sorts of multiculturalism and diversity issues.
Historians, philosophers, sociologists, political scientists and legal scholars
have all turned their attention to the relationships between citizenship,
pluralism, ethnicity, liberalism, democracy, constitutionalism and so forth. In
Canada, interest in these topics has always been high, largely because of the
long cohabitation of an English-speaking majority and a French-speaking
minority and partly because twentieth-century Canada has been constructed by
successive waves of immigrants from all corners of the globe. As a result,
Canada is among a group of a few countries in the vanguard of creative attempts
to manage ethnic and racial diversity. Canadians are rightfully proud of their
country’s accomplishments in this area, and a common national ambition is to
“show the world how to manage ethnic conflict, so as to avoid the horrors of the
past century.” 2 It is no accident, then, that this country is home to some of the
world’s leading philosophical authorities on how the institutions of liberal
democracy might make room for the recognition of distinctive cultural
traditions. 3
In spite of its reputation for appreciating the aspirations of ethnic and national
minorities and for the recognition of cultural diversity, Canada has hardly
escaped conflict and turmoil. Along with the never-ending problem of settling
jurisdictional battles between Ottawa and Quebec, the country faces the
challenge of sorting out the jurisdictions and entitlements of its other major
subnational forces—the First Peoples who demand a greater degree of selfgovernment
within Canada and the New Peoples (especially New Canadians of
non-European origin) who expect not only the protection of their individual
rights but also some recognition of their distinctive collective rights. The
challenge of finding ways to allow for greater cultural diversity within an
essentially liberal constitutional and institutional framework is proving to be
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just as daunting as the task of finding a means to accommodate Quebec’s
nationalist aspirations within aunited Canada. Indeed, even if the latter solution
is unattainable, even if Quebec separates and the deux nations quickly become
deux états, both societies will still have to come to terms with the challenges of
aboriginality and cultural pluralism.
The debates over the extent of Aboriginal or multicultural entitlements
highlight a larger intellectual and cultural dispute between proponents of a
liberal individualist idea of universal citizenship and those preferring a cultural
particularist notion of differentiated citizenship. Each of these conceptions,
taken to its logical conclusion, undermines the credibility and integrity of
Canadian citizenship. The challenge, therefore, is to find a “third way” between
these two mutually exclusive (and equally unattractive) perspectives. 4 Yet
unfortunately, in Canada today, such a third way appears to be elusive, either as
a theoretical ideal or a practical solution.
Liberal Individualism, Cultural Pluralism, Citizenship
Virtually everyone in the mainstream of Canadian society today recognizes and
applauds Canada’s ethnic diversity and cultural pluralism. Canada, we all
proudly declare, is a land of immigrants, a “mosaic” of different colours and
textures in which the descendants of the founding peoples (the French and the
English), along with newer immigrants from a wide variety of racial and ethnic
backgrounds, peacefully share the good life with the descendants of the land’s
original inhabitants. What is more, we like to say, Canada is a model for
contemporary liberal-democratic polities—a place where freedom, equality
and individual rights are sacred principles, but where difference is tolerated and
even celebrated.
Mind you, it was not until after World War II that these values became
engrained in our ways of life and thought. Historically, government policy
reflected the opinion of the majority that its values and institutions were
superior to all others. At the federal level, government-minority relations were
structured along lines of assimilation and absorption into the British North
American/Anglo-Canadian identity. Indeed, only since 1947, with the passage
of the Citizenship Act, was there such a thing as a Canadian citizen apart from
the British Commonwealth context. Moreover, Canada’s depressing record of
displacement, racial exclusion and forced assimilation of Natives is now well
known, as is the story of the government’s racially-based immigration and
naturalization policies. In addition, the French-speaking minority outside of
Quebec was subject to discrimination and abandonment, while within Quebec
ethnic and religious minorities were excluded from the dominant French
Catholic culture and often faced racism and harassment from traditionalist
French-speaking politicians, priests and community leaders.
It was only in the postwar period that diversity emerged as a meaningful
concept within Canada’s political discourse. A new generation of Aboriginal
leaders successfully attacked the racist assumptions and objectives underlying
the government’s Indian Act and won many positive concessions. Ethnic and
racial minority groups began to make successful demands on the Canadian state
for recognition both of their equality with other Canadian citizens and of their
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need to preserve and promote what makes them different than the majority.
Explicitly assimilationist strategies were slowly replaced by those promoting
racial tolerance, accommodation, equality of opportunity and the flourishing of
ethnic cultures. What was once regarded as a “problem” to be
eliminated—namely, the existence of people who did not fit in and whose
deficiencies had to be dealt with through education and cultural
rehabilitation—was turned into a national resource. Today our multicultural
heritage is a virtue to be flaunted at every international opportunity; and the idea
of a cultural “mosaic” is an invaluable component of our national identity,
especially to the extent that it helps us feel different from (and superior to) the
Americans with their cultural “melting pot.”
But the story does not end there (although some wish it did). In more recent
years, Aboriginal demands for greater recognition coalesced around demands
for differentiated group rights, particularly the right to self-government. Over
the years, a limited degree of differential entitlement was sought and won in the
form of affirmative action programs and public funding to enable Aboriginal
groups to carry out such activities as advocating Aboriginal rights in the courts
or lobbying governments and their departments. Some separate Aboriginal
service agencies have been established, and a certain degree of selfgovernment
has been made possible under a few new agreements (most notably
for the Inuit in Nunuvat and the Nisga’a in British Columbia). Today, action is
furious both within the corridors of established state power—e.g., First Nations
groups negotiate directly with first ministers, while treaty rights and land
claims cases flood the courts—and outside on the streets and in
communities—e.g., radical native protesters set up barricades and Indian bands
openly defy the laws of white society by selling tax-free cigarettes or by
otherwise engaging in acts of community autonomy.
Meanwhile, changing immigration patterns and demographic trends have
altered the nature of the multicultural experience in Canada. There are now far
fewer immigrants of European origin and many more from Asian, African,
Middle Eastern, Central American and South American countries. 5 This has
produced a new, more dynamic social environment—especially in Canada’s
largest urban centres. In an effort to deal with this new situation, governments
have come up with a variety of policy initiatives. Most prominent is the federal
policy, dating from 1971, that officially recognizes multiculturalism within a
bilingual framework. This policy, updated in 1988, recognizes the diverse and
pluralistic character of Canadian society; encourages new Canadians to
preserve various forms of their traditional and ethnic culture, including
heritage languages; and promotes racial and ethnic equality and cultural
diversity, in part through an anti-racism educational strategy. One aspect of this
regime involves state funding for ethno-cultural groups involved in carrying
out the mandate of the multiculturalism policy.
In recent years, though, ethnic groups and their representatives have been
increasingly concerned with the issues of “difference” and “identity.” While
the traditional equality model of citizenship subtly encourages immigrants to
fit into the mainstream, advocates of the new “identity politics” argue that
recognition and acceptance of difference are the crucial requirements of an
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First Peoples, New Peoples and Citizenship in Canada
inclusive citizenship. Hence, equality means more than treating everyone in the
same way, regardless of difference. Indeed, it requires one to treat different
groups differently when circumstances warrant. Not surprisingly, this new
attitude raises confusion and leads to misunderstandings and tensions among
those who believe firmly in the traditional ideal of equality for everyone. To
them, it seems that the accepted rules for dealing with such matters as colour or
religious affiliation were not in need of change. Yet these rules are indeed
changing. For instance, the idea that institutions should be “colour-blind” was
strongly endorsed in the post-war era and considered a vast improvement over
the previous regime of colour-conscious discrimination. Yet today, such a
colour-blind commitment is likely to be condemned as a subtle form of
systemic racism and white privilege. In its place should be a colour-conscious
policy according to which colour-coded differentiation can be an “attribute”
allowing certain individuals to compete more equitably in society. 6
This new politicization of difference raises the stakes in the attempt to manage
diversity. Matters are further complicated by the rise in Canada and throughout
the Western world of a political movement dedicated to the promotion of
individual liberty (this program sometimes goes under the name of “neoconservatism,”
other times “neo-liberalism,” and is also manifest in what has
been dubbed the “new populism”). One of its key tasks is to countervail the
demands of ethnic and racial minorities (as well as those of feminists, gay and
lesbian rights activists and environmentalists). Opposed to “special rights” for
racial or cultural groups, these ideologues tend to position themselves on the
right of the political spectrum and insist upon the priority of the individual. Of
course, not all opponents of differential rights for minority cultures fit this
profile—many are traditional “small-l” liberals and regard themselves as
politically progressive. Still, the ascendency of this brashly ideological
movement has helped focus critical attention on the polarized politics of
multiculturalism and the competing claims about the proper balance between
individual rights and collective entitlements, between liberal individualism
and cultural groupism, and between Kantian universalism and postmodern
particularism.
While it would be an over-simplification to suggest that these are the only
alternatives on offer today, there is nevertheless a significant polarization of
theoretical and practical preferences which can be expressed as two opposing
understandings of citizenship:
1) The Liberal Individualist Notion of Universalist Citizenship. There is a
proud tradition in Canada which proclaims the principles of liberal
individualism and universal citizenship. This view stresses the individual,
including the individual’s ability to transcend group or collective identity.
In this scenario, the individual is free to choose her identity and is not
defined by her station in life, ethnic background, religious affiliation, etc.
This version of citizenship treats everyone equally, regardless of race,
colour or creed. Formal equality of right and equality before the law are
the cornerstones of this approach. Rejected as illiberal and unfair is any
type of preferential treatment based on one’s racial identity or ethnocultural
heritage. Such policies, the argument runs, would “particularize”
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human beings, thus perpetuating exclusion and ghettoization rather than
inclusion and participation. Of course, liberals agree that inequality and
discrimination should be stamped out, but this must be done by means of
an active promotion of the equality of opportunity and not by the
imposition of policies premised upon the equality of results. Thus,
barriers to free and equal participation by minority groups should be torn
down, but in a way that does not involve privileging minority individuals
in societal competition. Finally, the individualist-universalist view of
citizenship in no way denies minority group members the right to freely
express their cultural differences. In fact, such free expression of diversity
is promoted and encouraged. Yet, as an individual, and not a collective
right, this right is qualified by the prohibition against impinging upon the
rights of others (either outside of the group or within it).
2) The Cultural Pluralist Notion of Differentiated Citizenship. An opposing
argument is made by theorists like Iris Marion Young who promote a
“politics of difference” and champion a model of “differentiated
citizenship.” 7 The theoretical underpinning of this viewpoint is a critique
of liberal impartiality, according to which we would all be treated as equal
citizens regardless of sex, race, creed or class. While abstract equality may
appear to be an attractive ideal, cultural pluralists argue that equal
treatment in practice merely perpetuates oppression and the exclusion of
socially or economically disadvantaged groups. True equality therefore
demands some sort of institutionalized group representation. This politics
of difference would replace the liberal priority of the abstract individual
with an emphasis on one’s cultural or ethnic group, for it is the group
which is the source of identity and meaning in an otherwise atomizing
world. Solidarity and group cohesion must be preserved among those
sharing a history, a language, a culture, a set of common aspirations,
goals, or a way of life. In this view, a group’s ability to confer identity
upon those who are members is a primary good. Such a standpoint need
not be regarded as entirely illiberal, however, since it is premised, as
Charles Taylor notes, on the original liberal notion of universal equality
(the “politics of equal dignity”). That is, the politics of difference assumes
that humans are equally worthy of respect and is thus very much “full of
denunciations of discrimination and refusal of second-class citizenship.”
But beyond the mere protection of individual rights must be a respect for
persons as members of identity-conferring groups. Hence, as Taylor puts
it, the “politics of difference grows organically out of the politics of
universal dignity through one of those shifts with which we are all
familiar, where a new understanding of the human social condition
imparts a radically new meaning to an old principle.” 8 Nevertheless, the
new politics of difference, and the cultural pluralist notion of citizenship
which it supports, is in direct conflict with individualistic liberalism.
Unfortunately, each of these alternatives, taken to their logical conclusions,
undermines democratic Canadian citizenship and national unity. Liberal
universalism is dedicated to the interests of the individual and not the collective
whole. Its first loyalty is to the individual as an abstract representation of
universal humanity. Ties of civic or national loyalty cannot be granted special
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moral status according to such a philosophy. 9 And when this liberalism is
coupled with capitalism, then citizenship and political nationality are undercut
even further. Liberal universalism respects no collective identity, even
nationality; capitalism respects no boundaries, including national ones.
Cultural pluralism, on the other hand, poses an equally serious challenge to
citizenship and national identity. To the extent that individuals identify with
their own ethnic or cultural groups, there will be a tendency to withdraw into the
confines of that group. The result is a sort of cultural ghettoization, with each
group retreating into its own territory and tending to its own parochial interests,
without much attention to the cultivation of a larger societal culture. When it
comes to Aboriginal peoples or ethno-cultural minorities, then, the
individualist emphasis of liberalism would deny the importance of the
collective identities through which First Peoples and New Peoples participate
in the larger Canadian society; at the same time, a narrow focus on the group
diminishes the significance of the ways that minority communities are
connected to the Canadian polity. We will have more to say about this dilemma
later in the essay, but for now, suffice it to say that the two major alternatives are
equally problematic. Thus the desire to strive toward a “third way” between
excessive individualism and illiberal groupism.
Aboriginal and Racial-Ethnic Dynamics
Before examining the implications of these alternative conceptions of
citizenship as they relate to First Nations and ethnic minority experiences, we
need to clarify our choice of examples. Indeed, the difference between the
experiences of First Peoples and New Peoples in Canada are so sharp that it may
strike one as odd that they can be treated together. It might make more sense,
under the circumstances, to compare the First Nations with Quebeckers and
contrast both with ethnic minority communities. The key issues would be (1)
that while immigrants freely choose to come to Canada, Aboriginals were here
prior to European settlement and never volunteered to become subject to the
political rule of the non-Aboriginal majority; (2) that the First Nations, like the
Québécois but unlike ethno-cultural minorities, constitute a distinct “people”
or “nation”; and (3) that the demands made on the Canadian state by Aboriginal
activists and Québécois nationalists go well beyond cultural identity matters to
include the control over land and resources, the right to self-government and
jurisdictional autonomy, and the transfer of taxing and spending powers.
Issues such as these are raised by Will Kymlicka, who distinguishes between
“nations” and “ethnic groups” and between “multinational” and “polyethnic”
states. 10 As he explains it, a multinational state is characterized by “the
coexistence within a given state of more than one nation, where ‘nation’ means
a historical community, more or less institutionally complete, occupying a
given territory or homeland, sharing a distinct language and culture.” 11 A
nation, in this sense, is hardly distinguishable from the sociological categories
of a “people” or a “culture.” Polyethnic states, on the other hand, accept large
numbers of individuals and families from other cultures as immigrants and
allow them to retain some of their ethno-cultural particularity. But it is
important, as Kymlicka sees it, “to distinguish this sort of cultural diversity
from that of national minorities. Immigrant groups are not ‘nations,’ and do not
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occupy homelands. Their distinctiveness is manifested primarily in their
family lives and in voluntary associations, and is not inconsistent with their
institutional integration.” 12 Some countries, like Canada, are both
multinational and polyethnic states. That is, they house both national
minorities—e.g., Mohawks and Québécois—as well as numerous immigrant
groups. Behind this set of distinctions, as one reviewer puts it, is the assumption
that “nations deserve more rights than ethnic groups.” 13 Kymlicka’s work
implies that while national minorities can only be dealt with fairly if they are
granted some concrete powers to govern themselves, ethnic minorities can be
satisfied with anti-racism initiatives, government grants, affirmative action
programs and heritage language classes.
A similar argument is advanced by Charles Taylor who, in an effort to
demonstrate that recognition of profound cultural difference is the only
formula on which a united federal Canada can be rebuilt, distinguishes between
two levels of diversity. 14 In what he calls “first-level diversity” there may be
great differences in outlook or background in a population that “nevertheless
shares the same idea of what it means to belong to Canada.” 15 Immigrants to
Canada fall into this category, since “their manner of belonging is uniform,
whatever their differences, and this is felt to be a necessity if the country is to be
held together.” The key for Taylor is that a member of an ethno-cultural
minority feels Canadian as a “bearer of individual rights in a multicultural
mosaic” but her belonging does not “pass through” some other community. The
same is not the case for Francophone Quebeckers or Aboriginal
Canadians—their way of being Canadian cannot be accommodated by firstlevel
diversity but requires a second-level or “deep” diversity, in which “a
plurality of ways of belonging would be acknowledged and accepted.” 16
Such reasoning does not please all commentators. Daiva Stasiulis objects that
Taylor’s portrait of the multicultural experience is contradicted by the
sociological reality of large, institutionally-complete ethnic communities in
Canada’s large urban centres. And the notion that immigrants share a common
sense of belonging with all Canadians cannot take into account, for instance,
the new patterns of ethnic and racial pluralism where new and wealthy
immigrants, many of whom regard themselves mainly as “global citizens,” are
setting their own terms for integration into Canada. Finally, Taylor is taken to
task for resuscitating the exclusionary concept of the “two founding nations”
(albeit revamped to include a third “founding nation”). 17 The major complaint,
then, is that Taylor’s concept of deep diversity relegates all “others”—those of
non-Anglophone, non-French, and non-Aboriginal origin—to the status of
second-class citizens, just as it ranks representation questions for ethnocultural
minorities below those of the “three nations”—Quebec, Canada
outside Quebec, and the First Nations.
Still, it is doubtless the case that the Québécois and Aboriginal peoples can both
be thought of as distinct “nations” in the sociological sense. Much is made of
these similarities, lending credence to recent proposals for a three nations view
of Canada. 18 Yet ways of being nations differ radically. Francophone
Québécois share a single language, culture and set of historical experiences
within a contained territory. As a province within a very decentralized federal
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system, Quebec already enjoys a good deal of autonomous selfgovernance—the
kind of authority that First Nations can only dream about.
And after decades of province-building, the primary institutions and structures
of government are largely in place for Quebec to become a sovereign country
according to the model of the contemporary nation-state. On the other hand, the
First Nations are spread out across the continent in non-contiguous reserve
lands, and many of their members reside off-reserve in towns and cities. Indeed,
many Aboriginal nations have no land base at all. In addition, each Native
community in North America possesses a distinct culture and historical
background. Collective identity for most Aboriginal peoples is associated with
their own particular culture—Git’san, Nisga’a, Mohawk, Cree, Ojibway,
Déné, Métis, Inuit, etc. The very multiplicity of languages, cultures, territories,
values and forms of social and political organization among Canada’s First
Nations makes the idea of a single affiliation impossible.
At the same time, there is a shared sense of identity related to racial affiliation
and membership among North America’s indigenous peoples. This sense of
identity depends largely on being “different” from the cultural majority, and in
this way resembles the feelings of solidarity that may arise among disparate
multiracial collectivities of New Canadians. Aboriginal politics, like
multicultural politics, are largely a politics of difference, a politics of identity.
As one observer explains, “the concern is to ensure that Aboriginal ways of
life—which include ties to a land-based subsistence economy as well as to
languages, spiritualities and cultures—continue to have relevance in the lives
of Aboriginal peoples. This means that Aboriginal politics are cultural
politics.” 19 For both Aboriginal and multicultural politicians, the danger of
assimilation into White North American society is a threat to their peoples’
survival. Assimilation means making unique cultures irrelevant in the lives of
people. There is a very keen awareness of this problem among both Aboriginal
and ethnic/racial minorities. For instance, the expression “apple”—red on the
outside, white on the inside—is used in a derogatory manner by some
Aboriginals to designate someone who accepts the values and practices of the
dominant culture, thus betraying the essential features of one’s cultural
identity. Similar expressions exist among racial immigrant groups—“banana”
in the Asian community, “coconut” among Afro-Canadians. Resistance to
assimilation is thus a common theme within both Aboriginal and multicultural
political discourse.
It is often pointed out that unlike Québécois or Aboriginal nationalism, the
discourse on multiculturalism is not about separation; rather it connotes a
willingness to work within the system in search of a degree of integration.
Multicultural groups seek to maintain the cultural integrity of the group, yet
they accept and take for granted the authority of the larger society. At bottom,
ethno-cultural groups are not nationalist in the sense that they do not aspire to a
separate power base with parallel state institutions. Again, this is a valid
distinction to make. Still, not all types of nationalism involve nation-state
aspirations. As Gerald Alfred points out, there are different forms of nationalist
ideology in the world today—even different forms of ethnic nationalism. 20
One variant, more appropriate in the Quebec case than in Aboriginal
communities, is a state-based ethnic nationalism “oriented towards the
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achievement of political independence and the promotion of cultural
distinctiveness among a group within a state.” Another form, more appropriate
to Native politics, is a community-based ethnic nationalism “which seeks to
achieve self-determination not through the creation of a new state, but through
the achievement of a cultural sovereignty and a political relationship based on
group autonomy reflected in formal self-government arrangements in
cooperation with existing state institutions.” Thus, state-based and community
sovereignty movements have essentially different natures: “Where the statebased
nationalist project is geared towards displacing the existing state in the
creation of a new one, community sovereignty nationalism accepts the state’s
present existence and attempts an accommodation that preserves the integrity
of both the challenging ethnic group and the state itself.” 21 The prevalence of
this integrationist attitude within Canada’s Aboriginal communities appears to
be supported by empirical research demonstrating that the clear preference
among Aboriginal respondents was to develop as Aboriginal peoples while
integrating with, and within, the larger Canadian society. 22 This would parallel
desires among ethno-cultural groups to maintain their cultural distinctiveness
within a multicultural society.
Aboriginals and immigrants are in a minority cultural position vis à vis the
dominant and well-entrenched majority populations in both Canada and
Quebec. What is more, both groups of minorities have suffered oppression,
racism, marginalization and paternalism at the hands of both the English- and
French-speaking charter groups. Native Canadians are descendants of the
original inhabitants of this land yet find themselves subjected, largely
unwillingly, to “foreign” customs, rules and institutions. New Canadians
voluntarily immigrated to Canada, bringing with them widely diverse national,
ethnic, racial and religious ways of life, yet face an often difficult
acclimatization in an unfamiliar and sometimes outright hostile socio-cultural
atmosphere. For Native Canadians, the task is to maintain, or more often to
retrieve, cultural traditions that are contrary to the dominant patterns of White
North America. For many New Canadians, on the other hand, the problem is to
preserve unique sets of habits and customs against the homogenizing influence
of North American popular and political culture. In both cases, problems of
cultural and racial pluralism in Canada indicate a need to push beyond the
traditional Canadian political science emphasis on the French-English and
regional divisions in this country. Race and ethnicity need to be acknowledged
as constitutive features of the Canadian political experience. Such a
recognition helps expand the typical social science notion of Canada as a
“white settler colony.” 23
To conclude this section, let it be clear that to consider diversity and
multiculturalism matters in Canada and Quebec by looking at both the First
Nations and ethnic/racial minority experiences is not in any way to undermine
the specificity of either case. In particular, the First Nations can claim rights as
indigenous peoples that cannot be claimed by any other group. In terms of the
adjudication of the Canadian Constitution or in the eyes of international law,
First Nations enjoy a special legal and moral status as indigenous peoples. Yet
in terms of the cultural aspect of integration by distinct cultural minorities into a
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larger society, we can profit from examining the dynamics of both Aboriginal
and multicultural politics in Canada.
Liberal Individualist/Universal Citizenship
Until recently, as already mentioned, Aboriginal and multicultural policy was
determined by proponents of a liberal individualist world view. This
philosophy is most splendidly personified by former Prime Minister Pierre
Trudeau, who did more than anyone else in the last 50 years to institutionalize
the theoretical principles of liberalism. Among his achievements were the
inauguration of the policy of official multiculturalism and the patriation of the
Canadian Constitution with an entrenched Charter of Rights and Freedoms.
Among his failures was an attempt in 1969 to desegregate Aboriginal peoples
through integration into the Canadian mainstream. In each of these policies, we
can detect the nature and observe the logic of the liberal individualist view of
ethno-cultural diversity.
Multiculturalism first appeared in the context of the hearings for the Royal
Commission on Bilingualism and Biculturalism, which was mandated to
investigate current levels of bilingualism and propose ways of encouraging
recognition of Canada’s basic cultural dualism. Yet to many Canadians,
especially those from non-charter groups (e.g., to Ukrainian-Canadians on the
prairies), the use of the term “biculturalism” to express the Canadian
experience was offensive. So in 1971, the federal government officially
implemented a policy of “multiculturalism within a bilingual framework.” As
Trudeau explained in his address to the House of Commons, “although there are
two official languages, there is no official culture, nor does any ethnic group
take precedence over any other.” 24 A lot has been said about Trudeau and
official multiculturalism, and much of it is negative. 25 In particular, cynicism
abounds concerning the purity of its designer’s intentions. The policy has been
criticized as a sop to the ethnic vote, as an affront to Francophone Quebeckers,
and as an unwarranted government intrusion into the lives of ordinary
Canadians. Nevertheless, official multiculturalism has become, at least for
most English Canadians, a shibboleth. 26 And in spite of its provisions for
government action to aid full participation by ethnic and cultural groups, the
ideology underlying this policy is clearly liberal and individualist. A policy of
multiculturalism, as Trudeau put it in his 1971 Commons speech, “is basically
the conscious support of individual freedom of choice. We are free to be
ourselves. But this cannot be left to chance. It must be fostered and pursued
actively. If freedom of choice is in danger for some ethnic groups, it is in danger
for all. It is the policy of the government to eliminate any such danger and to
‘safeguard’ this freedom.” 27
For Trudeau, moreover, multiculturalism went hand in hand with official
bilingualism. Both policies were intended to promote the rights of individuals,
not groups. In each case, the state legislated protection against the elimination
of individual choice. Behind this was the traditional liberal concern that a
person’s identity should be something that one works out for oneself, reflecting
personal choices as to what is really valuable. 28 Multiculturalism was thus a
“safeguard” against any threats to the liberal freedom to express one’s own
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identity and still participate equally in Canadian society. This would ensure that
the institutions of government and society were truly representative of the full
body of citizens. In spite of what its critics may now say, multiculturalism was
never expected to separate one group of Canadians from another, granting
“special rights” to disadvantaged groups; rather, it was meant to help all
cultural and ethnic groups integrate more successfully into the Canadian
political nationality. 29
While the primary goal of multiculturalism was the promotion of pluralism and
tolerance, its secondary objective was the fostering of a new and inclusive
national Canadian identity appropriate for all Canadian citizens, regardless of
ethnic heritage. A similar goal guided Trudeau’s push to protect individual
rights and freedoms with an entrenched charter. Again, much has been written
about the 1982 Canadian Charter of Rights and Freedoms and its effect on the
Canadian body politic; again, much of this literature is negative. 30 One line of
criticism sees the Charter as an attack on Canada’s conservative tradition of
parliamentary supremacy and a benign judiciary31; another line zeroes in on the
Americanizing effects of the Charter and its entrenchment of individual rather
than collective rights. 32 Either way, the Charter is reviled as a liberal
document, as an institutionalization of Trudeau’s faith in universal rights and
his distrust of collective entitlements. As regards ethnic and cultural minorities,
the key feature in the Charter is the sweeping anti-discrimination provision in
section 15. This section speaks to what Taylor calls the “politics of equal
dignity” and protects individuals from discrimination based on such grounds as
race, national or ethnic origin, colour and religion. There is only a nod towards
the incipient politics of difference in the enigmatic section 27, which dictates
that the Charter be interpreted in such a way as to preserve and enhance the
“multicultural heritage of Canadians.” This section is mainly of symbolic value
and enjoys little attention from litigators.
For Aboriginal peoples, as well as for people of colour in Canada, the Charter’s
anti-discrimination clause was intended as an affirmation of the country’s
commitment to equal rights. Yet the imposition of the Charter, without First
Nations input or consent, is resented by many since the values it reflects are not
always shared by First Nations peoples or implemented in ways that would be
appropriate for Aboriginal communities. For example, as Mary Ellen Turpel
explains, “many First Nations peoples are not comfortable with the Charter’s
adversarial approach of dealing with conflicts in the court system. Others
challenge the Charter’s interpretation of rights as weapons to be used against
governments; we tend to see rights as collective responsibilities instead of
individual rights—or at least see the strong link between the two.” 33 And even
though the Constitution Act, 1982 entrenched, for the first time in Canadian
law, Aboriginal and treaty rights, these rights were left unclarified—even after
a series of First Ministers Conferences (1983-87) convened specifically to
resolve the issue.
Vague though they are, however, the 1982 provisions for Aboriginal and treaty
rights mark a departure from the earlier attempts by the Trudeau government to
desegregate Aboriginal peoples through a policy of assimilation. In the aptly
named “White Paper” of 1969, the Liberal government proposed legislation
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that would terminate the existing relationship between the First Nations and the
federal government, foreclosing future possibilities of a special status for
Aboriginal peoples. The White Paper, as Alan Cairns put it, “was a late
twentieth-century version of the Durham Report of the previous century, with
Indians substituted for the backward, unprogressive Quebec peasantry.” 34 The
Indian Act was to be repealed, the Department of Indian Affairs dismantled,
and the reserve lands divided up and distributed on a per capita basis as personal
private property. Even the abolition of treaty privilege was envisioned as a goal
to be reached as Natives assimilated into the larger society. Under this plan,
Indians would be granted full citizenship rights—no more nor less than other
citizens of Canada. As Trudeau said at the time, “We can go on treating the
Indians as having a special status...adding bricks of discrimination around the
ghetto in which they live....Orwecansayyou’re at a crossroads—the time is
now to decide whether the Indians will be a race apart in Canada or whether
[they] will be Canadians of full status.” 35 Eventually the whole plan was
shelved, due to its hostile reaction from the Aboriginal community; but
Trudeau continued to interpret Aboriginal issues in terms of the desirability of
the absolute equality of citizenship rights.
Instead of this equal citizenship model (or the equally problematical groupdifferentiation
paradigm) there are ways to imagine the role of First Nations as
culturally separate groups who are still tied to the whole. An example is the old
“citizens plus” idea that emerged from the Hawthorn-Trembley Report of
1966. 36 By “citizens plus” it was meant that Aboriginal people would have all
of the normal entitlements of citizenship, plus certain benefits or special status
that would flow from their historical claims and contemporary needs. What
might constitute the contents of the “plus” package would look different now
than it would have in the 1960s, but the basic idea may still be workable as a
middle route between the insistence upon absolute equality of citizenship and
widely differentiated citizenship. Under such a framework of understanding,
Aboriginal peoples could claim the right to be different (the right to
recognition) as well as a right to be the same (the right to equal dignity); they
could be granted special concessions (equality of results) and still enjoy the
equal treatment that befits any citizen (formal equality of right). This model
may even be used to accommodate ethnic and cultural minorities (though their
package of “plus” rights would differ significantly from the package of special
Aboriginal rights).
Yet opposition to any form of “special status” for First Nations or multicultural
groups persists within the larger Canadian community. Mel Smith, a prominent
constitutional expert and former deputy minister in several British Columbia
governments, has recently argued for a new Aboriginal policy based on the two
principles of Native self-reliance and equality under the law. In support of the
latter, Smith writes: “It is contrary to all that Canada stands for to support a
policy that extends special privileges based on race or ethnicity. This is a
principle so fundamental to liberal democratic societies that it should not even
be necessary to state it.” 37 These theoretical issues quickly become practical
problems when Aboriginal rights, based on the notion of the preservation of
distinct cultural practices, collide with non-Aboriginal livelihoods—e.g.,
disputes between Native and non-Native commercial fishers on the West Coast
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and conflicts over energy or mineral resource exploitation. In these cases, the
demand for “special rights” for First Nations groups often meets with a great
deal of hostility from the non-Aboriginal population. For instance, the Reform
Party of Canada (which also opposes official multiculturalism) is consistently
critical of programs which would confer special status to Aboriginal
Canadians. The language used by Reformers is reminiscent of Prime Minister
John Diefenbaker’s famous avowal of “unhyphenated Canadianism” within
what he called “One Canada.” 38 This notion, in Diefenbaker’s words, stood for
“prejudice toward none and freedom for all. There were to be no second-class
citizens.” 39
To summarize: the liberal individualist view rests on the conferral of universal
citizenship with entitlements derived from formal individual rights. For ethnic
and cultural communities, this means protection for their members as
individuals against racial, religious or ethnic discrimination. It may also mean
that the state will take some positive steps to endorse pluralism and tolerance,
ensuring that the ideals of liberalism are approximated in social reality. But the
liberal view sees political community as the servant of individual identity and
not communal identity. Thus, there can be no room for differential group rights,
no matter how distinct the group may be. Yet many members of ethnic or
cultural communities, like Canada’s Aboriginal peoples or members of
multicultural groups, regard themselves not just as isolated, rights-bearing
individuals but as parts of larger communities from which they draw their
inspiration and sense of identity. Hence, there is a bitter resentment of the
liberal tendency to downplay the importance of a person’s connection to a
racial group or ethno-cultural community.
Cultural Pluralist/Differentiated Citizenship
For liberals, democratic progress has always entailed a tendency away from
group privilege and toward an ideal of citizenship in which each individual
counts equally as one. Liberal, progressive and radical thinkers have
traditionally strived to achieve a politics in which people transcend their
localized and particularist concerns and participate freely in the open space of
public life. 40 The politics of group identity and representation, now very much
in vogue among today’s progressive and radical thinkers, conflicts with what
has been the main movement of universalist liberal-democracy. To cultural
pluralists, as we have seen, the accommodation of differences and the
recognition of group-based special needs is a prerequisite for social justice and
national unity.
The challenge of multiculturalism in a country such as Canada is to
accommodate cultural, racial and ethnic differences in an effective and morally
justifiable manner. The way to do this, say the cultural pluralists, is to grant
cultural minorities certain group-specific rights. While this need not entail a
renunciation of liberal ideals of individual freedom and fairness, 41 it does
involve the abandonment of liberal universalism. Will Kymlicka enumerates
three common forms of group-differentiated rights which national or ethnic
minorities might legitimately demand: 42
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First Peoples, New Peoples and Citizenship in Canada
1) Self-government rights. These would involve some form of political
autonomy for the component groups, either within a federal structure or a
loose confederation. Typically this would entail the devolution of power
to a political unit substantially controlled by a national minority and
roughly corresponding to its historical homeland or territory.
2) Polyethnic rights. Here minority groups expect not only freedom from
discrimination but demand that positive steps be taken to allow them to
express their cultural particularity. Measures intended for this purpose
commonly include public funding of ethno-cultural groups, financial
support for their cultural practices, and legal exemptions from rules that
disadvantage members of particular ethnic or religious minorities.
3) Special representation rights. This type of group-differentiated measure
is aimed at alleviating situations of under-representation within positions
of political power and influence of disadvantaged minority groups. Means
such as affirmative action programs or guaranteed seats for ethnic or
national groups within the institutions of the larger state are commonly
advocated.
Given these observations, Aboriginal peoples might legitimately qualify for all
three types of group-differentiated rights. They might receive both special
representation and polyethnic rights due to their disadvantaged circumstances,
aswellasself-governmentrightsduetotheirstatusasa“people”or“nation.”
First, Aboriginal peoples have a good case for winning special representation
rights. As a socially and economically disadvantaged group, Natives would be
entitled under section 15(2) of the Charter to benefit from affirmative action
programs even without the further constitutional support for such differential
treatment provided in the Aboriginal and treaty rights provisions. In fact, many
such programs already exist—they provide for special placements in education
and training courses, or for equity hiring of First Nations applicants. When it
comes to improved institutional access and representation in the political
domain, however, not much has been done, though many ideas have been
circulated. It is sometimes argued that Aboriginal candidates are disadvantaged
in the political process—in part because of the thin distribution of Aboriginal
peoples across the country—and therefore require a means of explicit
representation. This might take the form of separate Aboriginal representation
in the House of Commons or a certain number of guaranteed seats in provincial
legislatures and the Canadian Senate. First Nations representation may also be
mandated for federally-appointed agencies, boards and commissions. And
Aboriginal organizations could be called upon to play an institutionalized role
in the appointment procedure for designated federal positions, such as Supreme
Court Justices.
Second, Aboriginal groups enjoy certain polyethnic rights at present, mainly
under the rubric of multiculturalism and the promotion of Native awareness and
education. Aboriginal organizations receive various forms of funding for their
political and cultural activities. A related set of programs has been funded by
governments to allow Aboriginal communities to take control of certain social
services, such as community health or child protection services. Limited
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experiments with Native-only schools in inner cities and with Aboriginal
heritage classes are now up and running. More controversial are steps to
institutionalize a separate Aboriginal justice system or to exempt Native
persons from laws and regulations that might disadvantage them. Unlike
affirmative action plans, these sorts of group-specific measures are not
intended to be temporary, since the cultural differences they protect are not
something that we seek to eliminate. As a result of their successful
implementation, however, these programs would loosen the ties between
Aboriginal peoples and the traditional federal and provincial governments.
While this has been the stated goal of many Aboriginal activists, the risks
implicit in this strategy are often overlooked. For example, there should be
concern that the “removal of Aboriginal peoples from the ‘we’ group of the
non-Aboriginal Canadian majority will tend to reduce the degree of concern
and civic obligation held by the latter to the former. Simultaneously, it will tend
toweakenthemoralpowertheclaimsoftheformercanmakeonthelatter.” 43
Finally, and most controversially, Aboriginal leaders demand some form of
political or jurisdictional autonomy in order to ensure the full and free
development of their culture and to achieve what is in the best interests of their
people. At the heart of the drive by Canada’s First Nations to regain control of
their lives and destinies is the concept of self-determination, often expressed in
terms of an inherent right to Aboriginal self-government. Unfortunately,
Aboriginal self-government is a notoriously enigmatic concept. No clear
definitions exist, and the attempts at clarification have often raised more
questions than they have answered. In any event, we know that models of selfgovernment
will vary tremendously according to community needs and
resources. Aboriginal peoples will wield a wide-range of jurisdictional
power—from near-provincial status in Nunavut, for instance, to quasimunicipal
roles elsewhere. However, there is every reason to believe that
Aboriginal entitlement will derive from constitutionally entrenched rights,
making it different in kind from other forms of group rights. In this sense, First
Nations peoples will almost certainly exercise significant degrees of
differential citizenship rights within Canada. 44
The story is different for multicultural groups. Members of ethno-cultural
minorities in Canada do not aspire to self-government and, depending upon
how you read the situation, they may be entitled only to polyethnic rights,
especially if the minority group in question is an economically successful one.
But the demands of at least some multiculturalists in Canada would see a
conferral of significant group-specific rights on minority ethnic communities.
These would include provisions for public funding of separate schools for
particular religious or racial/ethnic minorities. In addition, a wide range of
cultural exemptions would have to be recognized. These might pertain to such
things as religious holidays, forms of dress, access to the media and other forms
of communication, restrictions on certain types of public discourse, cultural
censorship of teaching materials, etc. In addition, ethnic and cultural minorities
sometimes make strong claims for affirmative action and equitable
representation policies.
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To be sure, the emergence of new ethno-cultural issues has proved volatile in
several quarters of society, and officials are not unaware of this phenomenon. 45
Immigration policy has been the source of much political controversy, with
vocal interests demanding reductions in the numbers of immigrants and
changes to current immigration procedures. At the extreme, there have been
calls for an end to so-called “non-traditional” immigration (i.e., immigrants of
non-European origin) and the deportation of all immigrants convicted of
criminal behaviour while in Canada (this hot-button issue raises the
controversial link between certain groups of immigrants and increased crime
rates). Of course, the policy of official multiculturalism has long been a target
for heated criticism and debate. Some critics feel that the multiculturalism
policy lacks substance, that it is only about funding ethnic dance troupes or
international food festivals. Others charge that it does little to encourage racial
and ethnic harmony but has the converse effect of hardening racial and ethnic
prejudice by stressing the differences between groups rather than the shared
ideals and values of all Canadians. Multiculturalism, according to this view, is a
regressive policy, that ghettoizes minorities and keeps in their own ethnic
enclaves. These points have been forcefully advanced recently in Neil
Bissoondath’s critical book on the subject. 46
In addition, there is much concern that policies designed to accommodate racial
or ethnic minorities have undermined the traditions and symbols that are unique
to Canada, leaving the nation without a clear identity cemented by unifying
cultural institutions and customs. The decision to allow Sikh RCMP officers to
wear turbans, for instance, led to an often acrimonious national debate, as did
the decree by some branches of the Royal Canadian Legion to forbid entry to
anyone sporting headgear, such as turbans or yarmulkes. Another controversy
arose when some school boards in Quebec banned the wearing of the hijab,a
form of head covering worn by many Muslim women, on the basis that it is a
religious symbol and reflects female oppression and Islamic fanaticism.
Equally controversial are plans for segregated, “black-focused” schools in
Toronto, under the auspices of what is called “empowerment multicultural
education.” Advocates of the proposal see it as a way to reverse the trend among
black students to drop out at rates two or three times higher than other students;
opponents see it as a return to the bad old days of racial segregation and fear it
willleadtoapatchworkofseparateschoolsystemsbasedonraceandethnicity.
These are just a few of the flashpoints in a larger cultural war over the very
meaning of the Canadian political nationality. As we have seen, Canada has
recently fancied itself as a cultural mosaic, in which each ethnic or racial group
preserves its heritage with the help and sympathy of government. The crucial
role played by the state (rather than the ethno-cultural communities
themselves) harmonizes with the general Canadian tradition of positive
government and the use of state power to effect larger public purposes. But
times are changing, including attitudes about the proper depth and scope of
government involvement in social affairs. In a time of fiscal restraint, many
Canadians now feel that their governments, pressured by self-interested
multicultural leaders, have gone too far in their attempts to accommodate
diversity. Many Canadians feel uncomfortable with the social changes
characteristic of a highly multiracial and multicultural society; as a result, they
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would rather see Canada as more of a cultural melting pot—like in the US,
where immigrants are expected to assimilate into the homogenous American
way of life—than as an unwieldy mosaic. 47 Other Canadians are mainly
concerned with their own economic futures, and this sometimes boils over as a
resentment against recent immigrants (predominantly now visible minorities).
To the extent, for instance, that employment equity programs are perceived to
privilege such minorities over the majority in a shrinking job market, populist
reaction can be harsh.
First Peoples, New Peoples and Quebec
Throughout this paper there has been an eery absence of any specific discussion
of Quebec. For the most part, my observations apply to controversies and
debates pertinent to the English half of the duality. This saves a lot of trouble, to
be sure, but also makes some logistical sense. Relations between First Nations
and the Quebec government are in fact minimal. That is, most Aboriginal
peoples in Quebec have few structural ties with the provincial state—the
exceptions being in the health care and social services sectors. 48 Quebec’s
Aboriginal peoples relate mainly to the federal authorities. And in matters of
identity and goal formation, the larger community with which First Nations in
Quebec want to remain affiliated is the broadly-defined Canadian one, and not
the particularist society of French Quebec. If anything, the Quebec government
is viewed by Quebec’s First Nations as a source of conflict and hostility.
Quebec’s Native bands have often rejected the legitimacy of Quebec’s
institutions and exerted their own autonomy. What is more, specific irritants
persist, such as the bad relations between Mohawks and the provincial police
force since the crisis at Oka several years ago.
At the root of much of the tension is language, and this puts Aboriginal groups
in Quebec in the same camp as the province’s Anglophones and allophones.
Québécois nationalism is constructed around the French language and a
distinctive Québécois cultural identity. Most First Nations people in Quebec do
not speak French and few participate actively in Québécois culture. Not
surprisingly, Quebec’s Aboriginal peoples, along with most Anglophones and
allophones, perceive great dangers in the movement toward Quebec
sovereignty, while the majority of Francophone Quebeckers believe that
Quebec’s natural destiny is estrangement from Canada. The competing ethnic
nationalisms of the First Nations and the Québécois complicate matters further
since both rely upon the assumption that “nations” have an inherent right to
self-determination. This leads Quebec’s First Nations to argue either for
outright sovereignty or for the right to stay in Canada if Quebec decides to
separate. Increasingly, Anglophone and allophone Quebeckers, especially in
Montreal, make similar arguments for remaining with Canada, leading to talk
of Quebec’s partition which understandably raises the ire of Francophone
Quebeckers. None of this makes it any easier, at the federal level, to
accommodate either First Peoples or New Peoples when their demands are
resisted by the Quebec government.
In one sense, of course, the cultural position of First Peoples and New Peoples
in Quebec is equivalent to their station in the rest of Canada. That is, they are
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minorities attempting to hang on to their racial or ethno-cultural differences in
the face of a dominant majority culture. Without doubt, however, the politics of
the French-English dualism in Quebec affects minority-majority relations to
the extent that Aboriginal peoples and immigrant ethnic communities in the
province face situations not shared by their counterparts elsewhere in Canada.
In the 1970s and 1980s, for example, Francophone sympathy for Native
peoples in Canada was higher than that of Anglophones; but this pattern
changed significantly in the 1990s. Today, Quebeckers tend to take a harder
line than other Canadians on Aboriginal issues. In addition, studies show that
French-speaking Canadians display a less favourable attitude towards non-
English and non-French ethnic origin groups than English-speakers, and that
they also prefer more strongly than other Canadians an atmosphere of “cultural
uniformity” rather than “cultural diversity.” Quebeckers and Francophones
also score lower than other Canadians on questionnaires measuring relative
levels of comfort with immigrants. Thus, survey research indicates that
Aboriginal and ethno-cultural minorities in Quebec have to define themselves
as Quebec minorities distinct from their counterparts in the rest of the
country. 49
Ideologically, moreover, the circumstances faced by Aboriginal and ethnocultural
minority groups are quite different outside and inside of Quebec.
Outside of Quebec, as we have suggested, the major vision of citizenship is a
liberal-individualistic one which sees political community as instrumental for
the betterment of individual happiness and flourishing. This is the “Pierre
Trudeau” vision of citizenship with its uncompromising appeal to individual
rights and with all of its problems for group identity and representation already
outlined. Inside Quebec, on the other hand, a more communitarian notion of
citizenship holds sway which emphasizes solidarity among a given people
(understood as a linguistic/ethnic category as well as a territorial one) and
which sees political community as instrumental to the elaboration and
promotion of a collective identity. Following Ronald Beiner, we might call this
the “Jacques Parizeau” vision of citizenship with its invocation of “old stock”
Québécois. 50 Yet many Quebeckers base their nationalism on territorial
imperatives and reject adamantly any linkage of nationalism with race or
ethnicity. But whether ethnic-based or territorial, nationalism in Quebec
collides with the aspirations of Quebec’s First Peoples. For the Cree or Inuit,
territorial nationalism is still a threat since it extends the sovereignty of the
Francophone population into what they see as their own territory.
Thus, many questions are raised about how the two types of diversity under
scrutiny in this paper can be accommodated within a nationalist Quebec. Are
allegiances to Quebec’s national interest to come at the cost of suppressing the
more specific identities of individuals and groups within Quebec’s boundaries?
How far is it justifiable to restrict individual liberty in the name of a collective
identity? To what extent may cultural minorities be forced to conform to the
values and ways of life of the national majority? How far may immigration or
education policy be legitimately shaped by the demands of nationality? These
sorts of questions would dominate a more detailed analysis of First Peoples and
New Peoples in Quebec. And they would be as inescapable in an independent
Quebec as they are for Quebec as a Canadian province.
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Conclusion: The Elusive “Third Way”
Our survey of the alternative conceptions of citizenship and their relation to
Aboriginal and multicultural politics leads to the disquieting conclusion that
neither model can offer a satisfactory means of managing diversity. The liberal
model of universal citizenship cannot be attractive to First Peoples or New
Peoples because it emphasizes their members’ individual identities and urges
them to transcend their attachment to the group or collectivity for the purposes
of enjoying full and equal participation rights in the larger society. The pluralist
model is often more attractive, especially to Aboriginal leaders and ethnocultural
group representatives, but it may have adverse consequences both for
the groups themselves and for the larger society to which they wish to remain
affiliated. There is real doubt that a single state could maintain a sense of
nationhood and provide truly multinational rights and/or polyethnic rights to its
subnational communities without inevitably moving in the direction of
separation or disintegration. Moreover, serious theoretical problems exist
within the cultural pluralist framework. In a powerful recent article, Katherine
Fierlbeck questions the claim that cultural identity can confer sufficient
“normative force” upon which to base differentiated political rights for distinct
cultural groups. 51 She also raises the troubling issue of the dangers inherent in
placing so much political value upon cultural identity. For one thing, this can be
used to justify the persecution of individuals on the basis of difference, since the
very emphasis on cultural identity as a force binding people together can be
seen as a force for keeping different peoples apart. Second, the focus on the
distinct rights of cultural groups may “reinforce the marginalization of those
who are already disadvantaged within the group.” 52 Thus, the practice of
establishing group rights on the basis of the value of cultural identity alone may
be philosophically unconvincing and possibly dangerous in practice.
So we are faced with a frustrating theoretical conundrum. On the one hand,
various versions of liberal universalism glorify the ideal of an abstract
individual above any collective or communal identity. Yet this ideology, with
its vision of society as an agglomeration of competing individuals, cannot
tolerate the privileging of an “exclusive and particularist” identity, such as
national citizenship requires. On the other hand, we have the forces of
exclusivity and particularism that affirm group differences, emphasizing that
which distinguishes some people from others. This philosophy also tends to
subvert, from the opposite direction, the idea of civic community. This leaves
us with a dilemma expressed nicely by Ronald Beiner in his reflections on
current citizenship theory:
To opt wholeheartedly for universalism implies deracination—
rootlessness. To opt wholeheartedly for particularism implies
parochialism, exclusivity, and narrow-minded closure of horizons.
Yet it is by no means clear that a viable synthesis of particularist
rootedness and universalistic openness is philosophically or
practically available. In practice, and perhaps in theory, we always
seem to get drawn to one unsatisfactory extreme or the other. This
elusive synthesis of liberal cosmopolitanism and illiberal
particularism, to the extent that it is attainable is what I want to call
“citizenship.” 53
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Under this category of “citizenship,” Beiner has in mind a third possibility that
is neither strictly liberal individualist nor strictly particularist. There would
have to be a requirement that citizens consent to a common political culture, but
this culture would be one in which individuals and groups were attached to a
“civic” identity and not an ethnic one. The ties that would bind, then, would be
political-constitutional, not ethno-cultural. Beiner refers to Jürgen Habermas’s
notion of “constitutional patriotism” as a possible opening. 54 The hope is that
there might be some way to get people to form an allegiance to a political
community that avoids, on the one hand, an uncompromising appeal to
individual rights with an insistence upon absolute equality of citizenship or, on
the other hand, an unbending conformity to a stifling parochialism.
Such a third way is also envisioned by those who draw upon Friedrich
Meinecke’s distinction between “images of the state as a Staatsnation,
focusing on the legal forms and Kulturnation which emphasizes the common
values, heritage and symbols.” 55 According to Thomas Courchene, there is no
shared vision in Canada in Kulturnation terms; but there is a basis (at least in
Canada outside of Quebec) for an understanding of the country in terms of
Staatsnation. He therefore suggests that we forget about trying to base our
notion of citizenship on any kind of shared socio-cultural identity and focus
instead on the construction of a few agreed-upon processes, institutional
arrangements and so on, “through which we can individually and collectively
filter our conceptions of who we are and who we might be.” 56 Presumably, the
basis of this agreement would be a form of what sociologist Anthony Smith
calls “civic-territorial” nationalism as opposed to “ethnic-genealogical”
nationalism. 57 The same idea underlies what Donald Smiley once called the
“Canadian political nationality,” the development of which requires simply
that Canadians “find and commit themselves to a group of common objectives
which they pursue in equal partnership together.” 58 Pointing out that Smiley’s
phrase derives originally from George-Étienne Cartier, Samuel LaSelva
recently argued that we need not invent some new constitutional order to
achieve this goal, but must instead attempt to recover the “moral foundations”
of Canadian federalism, which have always involved the idea that Canada is a
nation in which multiple loyalties and multiple identities may flourish. 59
The problem with this and other recent attempts to “reimagine Canada” (to
borrow Jeremy Webber’s phrase 60) is that even aside from the national identity
issue there appears to be little concrete underpinning for any agreement about
the common rules and objectives of our nation (let alone for a “constitutional
patriotism” of any sort). After the Meech Lake and Charlottetown fiascos, the
prevailing wisdom is to stay away from constitutional reform. Yet since current
constitutional arrangements are profoundly unacceptable to many key players,
these unresolved disputes continue to grind away at the foundations of the
country. In the absence of mutually constructive discourse on the issues, we are
left to muddle through with a hodgepodge of initiatives which satisfy no one.
Frustration and anger mount on all sides as attempts to find means to
accommodate across the cleavage between Canada’s cultural majority and its
Aboriginal and ethno-cultural minorities are left to wait until the problems of
French-English dualism and regionalism are sorted out, which might not be
until the final separation of Quebec from the rest of Canada. In the meantime,
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the polarization widens between proponents of liberal-individualistic
conceptions of Canadian citizenship and advocates of a cultural pluralist
conception of differentiated group rights. As both sides dig in their heels, and
perceive each utterance from the other camp as a threat to their very way of life,
the much-desired third way remains as elusive as ever.
Notes
* An early version of this paper was delivered at the Annual Meeting of the Canadian Political
Science Association, Brock University, St. Catherine’s, Ontario, June 1996. I would like to
thank participants in that session—Alan Cairns, Yasmeen Abu-Laban and Christopher
McKee—as well as the anonymous readers for this journal.
1. E.g., the University of Toronto’s Ronald Beiner edited an important collection of such
essays by leading Anglo-American and continental European political theorists—including
Habermas, Walzer, Taylor, Young and Ignatieff. This book, Theorizing Citizenship
(Albany: SUNY Press, 1995), includes a particularly helpful literature review article by Will
Kymlicka and Wayne Norman, 283-322. Another collection of essays, spanning a wide
spectrum of disciplines and professions, is found in William Kaplan (ed.), Belonging: The
Meaning and Future of Canadian Citizenship (Montreal & Kingston: McGill-Queen’s
University Press, 1993).
2. Hugh Donald Forbes, “Canada: From Bilingualism to Multiculturalism,” Journal of
Democracy 4 (October 1993), 69-84 at 69.
3. E.g., much of the theoretical agenda concerning differential rights claims has been set by
Canadian philosophers Charles Taylor and Will Kymlicka. The Taylor essay, “The Politics
of Recognition,” has been particularly influential. See Amy Gutman (ed.), Multiculturalism:
Examining the Politics of Recognition (Princeton: Princeton University Press, 1994).
Kymlicka, meanwhile, has informed much of the recent literature on the politics of
difference. See his Liberalism, Community, and Culture (Oxford: OUP, 1989) and
Multicultural Citizenship (Oxford: OUP, 1995). Both Taylor and Kymlicka encourage a
sympathetic understanding of the deep sources of identity and the desire for recognition
experienced by minority groups.
4. Here I must acknowledge my debt to Ronald Beiner’s discussions of the problems of
citizenship, especially in his introduction to Theorizing Citizenship, “Why Citizenship
Constitutes a Theoretical Problem in the Last Decades of the Twentieth Century,” 1-28.
Throughout this essay, Beiner lays out variants of the “universalist-particularist” dichotomy
(sometimes portrayed as “nationalism-multiculturalism” and sometimes as “liberalismcommunitarianism”),
pinpoints the shortcomings of each of the alternatives, and then
searches for an elusive middle term which might capture the essence of citizenship.
5. According to the 1991 Canadian Census, only 25 percent of the immigrants who arrived in
Canada between 1981 and 1991 were born in Europe. In contrast, European-born
immigrants represented 90 percent of those who arrived in Canada before 1961. See Jane
Badets, “Canada’s Immigrants: Recent Trends,” Canadian Social Trends (Toronto:
Thompson Educational Publishing, 1994), 27-30 at 29.
6. This example comes from Augie Fleras and Jean Leonard Elliott, Unequal Relations: An
Introduction to Race, Ethnic and Aboriginal Dynamics in Canada, 2nd. Ed. (Scarborough:
Prentice Hall, 1996), 403-4.
7. Justice and the Politics of Difference (Princeton: Princeton University Press, 1990).
8. Taylor, “The Politics of Recognition,” 39.
9. Beiner, “Introduction,” 2.
10. Kymlicka, Multicultural Citizenship, 11-26.
11. Ibid., 11.
12. Ibid., 14.
13. H.D. Forbes, “Affirm or Neglect: Contrasting Views on the Life of Groups,” Books in
Canada (April 1996), 26-29 at 27.
14. Charles Taylor, “Shared and Divergent Values,” in Reconciling the Solitudes: Essays on
Canadian Federalism and Nationalism (Montreal & Kingston: McGill-Queen’s University
Press, 1993), 155-86.
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15. Ibid., 182.
16. Ibid., 183.
17. “‘Deep Diversity’: Race and Ethnicity in Canadian Politics, in Michael S. Whittington and
Glen Williams (eds.), Canadian Politics in the 1990s, 4th ed. (Toronto: Nelson, 1995), 191-
217.
18. For a discussion of this trend, see Alan C. Cairns, “The Fragmentation of Canadian
Citizenship,” in Douglas E. Williams (ed.), Reconfigurations: Canadian Citizenship &
Constitutional Change (Toronto: McClelland & Stewart, 1995), 157-85.
19. Peter Kulchyski, “Aboriginal Peoples and Hegemony in Canada,” Journal of Canadian
Studies 30 (Spring 1995), 60-68 at 61.
20. Gerald R. Alfred, Heeding the Voices of Our Ancestors: Kahnawake Mohawk Politics and
the Rise of Native Nationalism (Toronto: OUP, 1995), 14.
21. Ibid., 15.
22. J.W. Berry and M. Wells, “Attitudes Toward Aboriginal Peoples and Aboriginal Self-
Government in Canada,” in John Hylton (ed.), Aboriginal Self-Government in Canada:
Current Trends and Issues (Saskatoon: Purich Publishing, 1994), 215-34 at 225.
23. Frances Abele and Daiva Stasiulis, “Canada as a ‘White Settler Colony’: What about
Natives and Immigrants?,” in Wallace Clement and Glen Williams (eds.), The New
Canadian Political Economy (Montreal & Kingston: McGill-Queen’s University Press,
1989), 240-77.
24. Trudeau cited in H.D. Forbes, “Trudeau’s Moral Vision,” in Anthony A. Peacock,
Rethinking the Constitution: Perspectives Canadian Constitutional Reform, Interpretation,
and Theory (Toronto: OUP, 1996), 17-39 at 27.
25. For a description and analysis of the main criticisms of multiculturalism, see Yasmeen Abu-
Laban and Daiva Stasiulis, “Ethnic Pluralism Under Siege: Popular and Partisan Opposition
to Multiculturalism,” Canadian Public Policy 18 (1992), 365-86.
26. Harold Fallding, “Multiculturalism: A Great Shibboleth,” in Policy Options (March 1995),
42.
27. Trudeau cited in Forbes, “Trudeau’s Moral Vision,” 28.
28. David Miller, On Nationality (Oxford: OUP, 1995), 43.
29. See, for instance, the booklet released by the Department of Multiculturalism and
Citizenship, Multiculturalism: What is it Really About? (Ottawa: Minister of Supply and
Services, 1991).
30. For an overview of the Charter’s critics, see Richard Sigurdson, “Left- and Right-Wing
Charterphobia in Canada: A Critique of the Critics,” International Journal of Canadian
Studies/Revue internationale d’études canadiennes, 7-8 (Spring/Fall, 1993), 95-115.
31. E.g., Rainer Knopff and F.L. Morton, Charter Politics (Scarborough: Nelson, 1992) or
Christopher P. Manfredi, Judicial Power and the Charter: Canada and the Paradox of
Liberal Constitutionalism (Toronto: McClelland & Stewart, 1993).
32. E.g., Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada
(Toronto: Thompson Educational Publishing, 1994) or Allan C. Hutchinson, Waiting for
Coraf: A Critique of Law and Rights (Toronto: University of Toronto Press, 1995).
33. Ovide Mercredi and Mary Ellen Turpel, In the Rapids: Navigating the Future of First
Nations (Toronto: Viking, 1993), 96-97.
34. “Aboriginal Canadians, Citizenship, and the Constitution,” in Reconfigurations, 238-60 at
244.
35. Trudeau cited in Melvin H. Smith, Our Home or Native Land? What Governments’
Aboriginal Policy is doing to Canada (Victoria: Crown Western, 1995), 1.
36. Cairns, “Aboriginal Canadians,” 242-5.
37. Smith, Our Home or Native Land?, 263.
38. My thanks to François Rocher and Miriam Smith for pointing this out; see their paper “The
New Boundaries of the Canadian Political Culture,” delivered at the Conference organized
by the Centre for Canadian Studies, University of Edinburgh, UK, May 1996, 9.
39. One Canada: Memoirs of the Rt. Hon. John G. Diefenbaker, Vol. 2 (Scarborough:
Macmillan, 1976), 27.
40. Anne Phillips, Democracy and Difference (Philadelphia: Pennsylvania State University
Press, 1993), 92.
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IJCS / RIÉC
41. It is worth mentioning here that Will Kymlicka’s main burden in Liberalism, Community,
and Culture and in Multicultural Citizenship is a sophisticated demonstration that the
granting of collective rights to minority cultures can be consistent with liberal democratic
principles, and that the objections of traditional liberals to such group rights can be countered
from within a liberal paradigm.
42. Kymlicka, Multicultural Citizenship, 26-33.
43. Cairns, “Aboriginal Canadians,” 258.
44. Cairns, “The Fragmentation of Canadian Citizenship,” 172-3.
45. As Abu-Laban and Stasiulis point out, the government’s own Spicer Commission reported a
high degree of concern about the extent to which multiculturalism destabilized and
weakened citizens’ feelings of national unity (371). See the Citizens’ Forum on Canada’s
Future, Report to the People and Government of Canada (Ottawa: Minister of Supply and
Services, 1991).
46. Selling Illusions: The Cult of Multiculturalism in Canada (Toronto: Penguin, 1994).
47. Stasiulis cites a 1993 national survey in which 72 per cent of respondents agreed that “the
long-standing image of Canada as a nation of communities, each ethnic and racial group
preserving its own identity with the help of government policy, must give way to the US style
of cultural absorption” (“Deep Diversity,” 210). See also Reginald W. Bibby, Mosaic
Madness (Toronto: Stoddart, 1990), especially 5-15.
48. Alfred, Heeding the Voices, 17.
49. This overview summarizes research findings presented in Leslie S. Laczco, Pluralism and
Inequality in Quebec (Toronto: University of Toronto Press, 1995), Chapter 8, 159-70.
50. Beiner, “Introduction,” 15.
51. “The Ambivalent Potential of Cultural Identity,” The Canadian Journal of Political Science
29 (March 1996), 3-22.
52. Ibid., 21.
53. Beiner, “Introduction,” 12-13.
54. See Habermas, “Historical Consciousness and the Post-Traditional Identity,” in Habermas,
The New Conservatism, ed., Shierry Weber Nicholson (Cambridge: MIT Press, 1989), 249-
67.
55. C. Michael Lanphier and Anthony H. Richmond, “Multiculturalism and Identity in ‘Canada
outside of Quebec,’” in Kenneth McRoberts (ed.), Beyond Quebec: Taking Stock of Canada
(Montreal & Kingston: McGill-Queen’s University Press, 1995), 313-32 at 313.
56. “Staatsnation vs. Kulturnation: The Future of ROC,” in McRoberts, Beyond Quebec, 388-
99 at 396.
57. National Identity (Reno: University of Nevada Press, 1991), ch. 1.
58. The Canadian Political Nationality (London & Toronto: Methuen, 1967), 129.
59. The Moral Foundations of Canadian Federalism: Paradoxes, Achievements, and Tragedies
of Nationhood (Montreal & Kingston: McGill-Queen’s University Press, 1996).
60. Reimagining Canada (Montreal & Kingston: McGill-Queen’s University Press, 1994).
76

Gilles Bourque et Jules Duchastel
Les identités, la fragmentation de la société
canadienne et la constitutionnalisation des enjeux
politiques
Résumé
Cet article porte sur la production des identités politiques au Canada. Les
auteurs soutiennent que l’expérience canadienne qui se caractérise par une
propension à la constitutionnalisation des débats et des enjeux politiques
constitue une sorte de laboratoire des mutations de l’espace public qui
surviennent dans la plupart des sociétés occidentales. Dans ce contexte, la
réitération des revendications québécoises et autochtones, ainsi que
l’affirmation des intérêts catégoriels caractéristiques de l’État-providence,
ont favorisé une véritable fragmentation de la société. Les auteurs signalent
que le rapatriement de la Constitution en 1982 a consolidé la construction
d’un État multiculturel plutôt que d’un État multinational, ce qui a impliqué
une institutionnalisation juridico-culturelle qui divise la société en une
multiplicité de groupes d’ayants droit aux rapports conflictuels. Les auteurs
concluent qu’un État fondé sur la reconnaissance des droits politiques liés à
l’existence de communautés nationales différentes permettrait une sortie de
la crise du régime politique canadien.
Abstract
This article examines the creation of political identities in Canada. The
authors argue that the Canadian experience, which is characterized by a
propensity to constitutionalize political debates and issues, acts as a breeding
ground involving various transformations of the public space, a phenomenon
which is taking place in most western societies. In this context, the repeated
demands from Québécois and Aboriginals, as well as those from numerous
interest groups, have fostered divisions within society. The authors point out
that the repatriation of the Constitution in 1982 has helped establish a
multicultural state as opposed to a multinational one. This development has
resulted in a legal and cultural institutionalization which has splintered
society in various groups of rights bearer often in conflict with each other.
The authors conclude that a state based on the recognition of political rights
linked to different national communities would allow a way out of the crisis
which is troubling the Canadian political regime.
La montée du multiculturalisme et des revendications catégorielles, ainsi que
l’affirmation d’une citoyenneté particulariste, comptent parmi les traits les plus
frappants de l’évolution récente des démocraties occidentales (Taylor, 1994 ;
Kymlicka, 1995 ; Pal, 1993 ; Jenson, 1996). Ces phénomènes témoignent d’une
crise profonde de l’institutionnalisation politique qui avait caractérisé jusqu’ici
International Journal of Canadian Studies / Revue internationale d'études canadiennes
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IJCS / RIÉC
la reproduction de la société moderne. On peut parler, à ce titre, d’une triple
dérive : une crise d’abord de l’espace public considéré comme le lieu central de
la discussion du pouvoir et de la production des compromis sociaux
(Habermas, 1978) ; une crise ensuite de la régulation politique, c’est-à-dire de
la capacité des institutions de la démocratie représentative de réaliser ces
compromis (Wieviorka et Dubet, 1996); une crise, enfin, de la communauté
politique (Webber, 1994), cette « source de reconnaissance et de confiance
mutuelle » (Kymlicka, 1995 : 105-106), susceptible de produire un horizon
moral commun (Taylor, 1992) auquel pourrait se rallier l’ensemble des
citoyens.
Les ratés de l’institutionnalisation politique sont intimement liés à ce qu’il est
maintenant convenu d’appeler l’érosion de l’État-nation, mis en péril par un
double mouvement qui mine sa capacité de demeurer l’instance principale de la
reproduction des rapports sociaux. À l’externe, d’une part, la mondialisation et
le libre marché tendent à désaisir l’État-nation d’une très large partie de ses
pouvoirs dans le domaine de la régulation économique (Deblock et Brunelle,
1993 ; Sanderson, 1995 ; Boyer et Hollingsworth, à paraître). À l’interne, on
assiste, d’autre part, à une tendance à l’éclatement et à la fragmentation des
communautés politiques nationales qui se manifeste par la formation de trois
fissures qui menacent de s’élargir sous le poids des luttes sociales. Les
revendications nationales, en premier lieu, qu’elles soient québécoise,
autochtone, catalane, irlandaise ou écossaise, remettent en question, dans
plusieurs pays, l’intégrité du régime politique (Keating, 1997). Les
revendications catégorielles (Jenson, 1996), en second lieu, issues des
nouveaux mouvements sociaux, des groupes d’âge ou des communautés
culturelles provoquent une redéfinition d’inspiration particulariste de la
citoyenneté qui interroge l’universalisme jusqu’ici à la source des cultures
politiques modernes. L’impasse enfin de la société salariale, sous l’effet de la
mondialisation, de la révolution technologique et du néolibéralisme, prend
dans la très vaste majorité des pays le visage du chômage, de l’exclusion et de la
dualisation de la société.
En nous centrant sur la question de la production des identités politiques
(nationales et catégorielles) au Canada, nous tenterons de montrer dans cet
article que ce pays peut être considéré comme une sorte de laboratoire des
mutations de l’espace public qui surviennent actuellement au sein de la plupart
des sociétés occidentales1. Les débats politiques au Canada se caractérisent, en
effet, par la conjugaison contradictoire de l’ensemble des phénomènes et des
types de luttes que nous avons évoqués ci-dessus. Mais l’intérêt de l’analyse
réside principalement dans le fait que l’expérience canadienne se distingue par
l’existence d’une propension à la constitutionnalisation des débats et des
enjeux politiques, c’est-à-dire par le fait qu’un très large éventail des
revendications des groupes sociaux ont pris ou prennent, positivement ou
négativement, la Constitution pour cible (Russell, 1993). Ce que nous appelons
la propension à la constitutionnalisation des débats vient ainsi renforcer au
Canada cette tendance à la fragmentation de la communauté politique qui, nous
l’avons souligné, traverse à des degrés divers la plupart des sociétés
démocratiquesdetraditionlibérale(Cairns,1991;CairnsetDouglas,1991).
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Les identités, la fragmentation de la société et la
constitutionnalisation des enjeux politiques
Prolégomènes : La Constitution comme texte fondateur de la
communauté politique
L’importance des débats et des enjeux constitutionnels dans l’histoire politique
canadienne, depuis 1867, impose de nous interroger au moins sommairement
sur le rôle et la place de la Constitution dans la formation et la reproduction de
l’État moderne et de la communauté politique nationale. En tant que texte
fondateur, la Constitution fixe les règles de fonctionnement des institutions de
la démocratie représentative (Parsons, 1969). Bien que la formule ne soit guère
élégante, on peut parler ici d’une institutionnalisation de l’institutionnalisation
ou si l’on préfère d’une régulation de la régulation politique qui caractérise
l’État moderne (Freitag, 1986).
La Constitution fixe, en effet, les règles qui permettent aux acteurs de se
constituer en sujets de droit aptes à l’exercice de la démocratie représentative
(liberté d’expression, droits politiques et juridiques). Elle détermine aussi les
règles de la forme du régime politique, c’est-à-dire de l’organisation et de la
distribution des pouvoirs entre différents paliers de gouvernement. Mais la
fixation de telles règles, loin de se limiter à un exercice purement technique,
implique la construction d’un horizon commun qui contribue à la production
symbolique de la communauté politique elle-même, c’est-à-dire de la nation,
cette communauté de citoyens (Schnapper, 1994 ; Gellner, 1989) au nom de
laquelle s’exercera le pouvoir au sein de l’État de droit.
En somme, toute constitution et tout débat constitutionnel s’appuient sur une
référence identitaire qui permet de définir et de représenter une communauté
politique particulière. Or, cette communauté n’est pas simple addition des
individus-citoyens. Elle s’affirme comme une culture politique nationale ou,
comme l’écrit Will Kymlicka, comme une culture sociétale spécifique : « Le
monde moderne, écrit-il, est divisé entre ce que j’appellerai des «cultures
sociétales» dont les pratiques et les institutions couvrent toutes les facettes de
l’activité humaine relevant aussi bien de la sphère publique que de la sphère
privée. Ces cultures sociétales sont associées de façon typique aux groupes
nationaux » (Kymlicka, 1995 : 75-76, traduction). La communauté nationale se
nourrit ainsi d’une culture politique nationale particulière (culture sociétale au
sens de Kymlicka) qui se forme en chaque pays dans le processus
d’institutionnalisation politique caractéristique de la modernité. Cette culture
est constituée de pratiques et d’institutions qui s’organisent sur la base des
rapports entre les sphères publique et privée. La communauté politique
nationale permet ainsi une discussion du pouvoir susceptible de résoudre les
conflits entre les acteurs et les groupes sociaux. La culture issue du commun
partage d’un seul et même espace public fait apparaître la communauté
politique comme une totalité qui transcende la simple somme des interactions
entre les individus-citoyens. En ce sens, écrit encore Kymlicka, « les
regroupements nationaux fournissent un domaine de liberté et d’égalité, ainsi
qu’une source de reconnaissance et de confiance mutuelle qui peuvent
concilier les différends et les dissensions qui portent sur les conceptions du bien
dans les sociétés modernes » (Kymlicka, 1995 : 105-106, traduction).
Nous entendons le concept de culture politique nationale dans un sens
beaucoup plus large que ne le fait généralement la science politique. Nous
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visons ici le fait que, dans la modernité, cette culture permet de produire la
société comme totalité. C’est précisément la perspective qui conduit Kymlicka
à proposer le concept de culture sociétale. Nous préférons retenir le concept de
culture politique nationale parce qu’il nous permet de faire ressortir que, dans
l’État moderne, la production de la société comme totalité résulte en dernière
analyse d’un procès d’institutionnalisation politique qui organise les rapports
sociaux sur la base de la relation entre deux sphères : la sphère privée et la
sphère publique. Nous qualifions, par ailleurs, celle-ci de culture politique
nationale parce que, dans l’État-nation, comme le souligne ci-dessus
Kymlicka, ces cultures « sont associées de façon typique aux groupes
nationaux » (traduction). Est-il besoin de souligner que nous refusons toute
lecture ethnique ou ethniciste d’un tel concept ? Si, au point de départ, dans le
processus de construction de l’État-nation, la formation d’une culture politique
particulière se réalise à partir de l’univers symbolique de l’une des ethnies
réunies au sein du nouvel État, une telle culture politique vise l’intégration de
l’ensemble des individus de toutes les origines au sein d’une seule et même
citoyenneté nationale. C’est cette tendance à l’affirmation d’une seule culture
politique nationale (ou d’une seule culture sociétale au sens de Kymlicka) qui
rend si difficile l’analyse des conflits nationaux au sein de l’État-nation. Bien
qu’une dérive ethniciste guette toujours les acteurs impliqués dans de tels
conflits, l’enjeu de ces luttes, quand du moins elles respectent les règles de la
démocratie, porte sur la reconnaissance d’une pluralité de cultures politiques
nationales différentes au sein d’un même État (à moins, bien sûr, qu’elles ne se
résolvent par la création d’un nouvel État-nation). Ainsi l’affrontement actuel
entre le Québec et le reste du Canada n’oppose pas les Canadiens anglais et les
Québécois francophones sur une base ethnique (bien que, encore une fois, une
dérive ethniciste soit toujours possible). Nous sommes plutôt face à un conflit
d’intégration de la citoyenneté sur la base de deux cultures politiques nationales
différentes qui devra se résoudre soit à l’intérieur d’un État canadien
transformé, soit par la création d’un État québécois séparé.
Dans la plupart des pays, et même aux États-Unis et en France, la construction
de la communauté nationale est l’objet de luttes qui conduisent à l’affirmation
de contre-nationalismes qui posent l’existence de cultures politiques
nationales différentes au sein de l’État-nation. Dans certains cas, comme la
Suisse et la Belgique, la reconnaissance de la pluralité des cultures politiques
nationales a conduit à la formation d’une communauté politique
multinationale. Dans beaucoup d’autres cas, et particulièrement en cette
période d’érosion de l’État-nation, les revendications nationalitaires se
multiplient. En ce sens, l’exacerbation des luttes nationales au Canada ne fait
pas exception à la règle et ne constitue pas en elle-même la particularité de
l’expérience canadienne. Bien que les questions nationales québécoises et
autochtones jouent un rôle important dans la crise politique actuelle au Canada,
c’est l’éclatement de la communauté politique elle-même, sous l’effet de la
conjugaison de luttes multiformes et de la tendance à la constitutionnalisation
des conflits sociaux, qui constitue ce pays en un laboratoire de la fragmentation
sociétale qui s’affirme en cette fin de siècle.
Nous soutiendrons dans cet article que deux éléments de l’expérience
canadienne, qui se manifestent à long terme (depuis 1867), ont contribué de
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Les identités, la fragmentation de la société et la
constitutionnalisation des enjeux politiques
façon décisive à l’affirmation plus récente (1960-1996) de ce que nous avons
appelé la conjugaison des luttes sociales et la constitutionnalisation des enjeux
politiques. La récurrence de problèmes nationaux non résolus depuis 1867 (les
questions du Québec et des Autochtones) et l’inachèvement de la construction
de l’État national jusqu’en 1982 ont en effet contribué à l’exacerbation d’une
saga constitutionnelle qui met en péril l’État canadien. La réitération des
revendications québécoises et autochtones, dans un contexte où s’impose le
rapatriement d’une Constitution — toujours à Londres jusqu’en 1982 — et où
s’affirment les revendications catégorielles caractéristiques de l’Étatprovidence
a favorisé une véritable constitutionnalisation de la fragmentation
de la société canadienne qui rend problématique l’existence même d’une
culture politique nationale canadienne commune. Nous tenterons de montrer
que l’histoire constitutionnelle récente a ainsi suscité l’émergence d’une
institutionnalisation juridico-culturelle des règles de fonctionnement de la
démocratie représentative qui a été caractérisé par l’affirmation d’une
citoyenneté particulariste et multiculturelle. Ce choix, loin de la résoudre,
favorise l’approfondissement de la crise du régime politique canadien. Seules
des solutions constitutionnelles visant une institutionnalisation juridicopolitique
fondée sur la reconnaissance de la pluralité des cultures politiques
nationales et assurant la promotion d’une citoyenneté universaliste
supranationale, nous paraissent susceptibles de préserver l’unité de l’État
canadien.
De 1867 aux années 1930 : Un État national « inachevé », un problème
national non résolu
La Constitution de 1867, l’Acte de l’Amérique du Nord Britannique,
sanctionne l’existence d’un régime politique fédératif qui apparaît durant cette
deuxième phase de la création des États nationaux au cours de la deuxième
moitié du dix-neuvième siècle. Ces nouveaux pays, ne mentionnons que
l’Allemagne, l’Italie, l’Autriche-Hongrie, l’Argentine et le Canada, durent
faire face à des forces hégémoniques à l’échelle mondiale (l’Angleterre, les
États-Unis, la France), alors même que la construction nationale restait à faire
dans les domaines économique, politique et culturel. Or, les architectes de la
Constitution canadienne de 1867 héritent d’un double problème qu’ils ne
pourront résoudre que fort partiellement et qui marquera décisivement
l’histoire politique canadienne jusqu’en cette fin du vingtième siècle.
La forme du régime politique canadien, le fédéralisme, résulte d’abord d’un
compromis entre les élites des différentes colonies du British North America
(Ryerson, 1972). Ce compromis témoigne déjà de la précarité de ce projet de
construction d’une nouvelle communauté politique à partir de la réunion de
sociétés coloniales qui entretenaient auparavant peu de rapports entre elles (au
point de départ, le Canada-Uni, le Nouveau-Brunswick et la Nouvelle-Écosse)
et au sein desquelles subsistaient des questions nationales non résolues : le
nationalisme canadien-français et les réalités autochtones. À l’encontre du
projet initial d’union législative, les promoteurs du projet de fusion des
colonies britanniques doivent se rallier à la solution de créer un État fédéral qui
favorisera, dans la suite de l’histoire politique canadienne, l’affirmation du
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régionalisme, du nationalisme francophone (canadien-français, puis québécois
et acadien) et, à partir des années 1960, des revendications autochtones.
S’il faudra attendre jusqu’aux années 1960 pour que le régionalisme et les
questions autochtones s’affirment pleinement au cœur des débats
constitutionnels canadiens, la réalité nationale canadienne-française deviendra
dès le début un obstacle à la construction d’une communauté politique
pleinement unifiée. Même si les revendications autonomistes canadiennesfrançaises
ont pesé d’un poids très lourd dans l’adoption d’une union fédérative
qui conduisit à la création de la province de Québec, la Constitution canadienne
ne reconnaît pas l’existence d’une communauté politique distincte, c’est-à-dire
l’existence d’une nation canadienne-française2. Ce problème non résolu
perdurera jusqu’à nos jours au moment où le nationalisme canadien-français
devenu québécois menace l’intégrité de l’État canadien.
La Constitution de 1867 pose en même temps le problème de l’inachèvement
de l’État national qui, tout comme celui de la question du nationalisme
francophone, marquera l’histoire politique canadienne durant tout le vingtième
siècle. L’État canadien de 1867 demeure soumis à l’Empire dans le domaine
des relations internationales. Il apparaît ainsi comme un État national inachevé,
et il faudra attendre 1931 et le Statut de Westminster pour qu’il obtienne
l’autonomie dans le domaine des relations internationales. Jusqu’aux années
trente, le rattachement à l’Empire empêchera l’affirmation d’une identité
politique pleinement canadienne. Mais le Statut de Westminster ne résoudra
pas complètement le problème de l’inachèvement de l’État national canadien.
La Constitution demeurait toujours à Londres et bien que l’on adopta la loi de la
citoyenneté canadienne en 1946 et que l’on cessa de faire appel au Conseil privé
en matière constitutionnelle en 1949, le texte fondateur de la démocratie
canadienne, l’Acte de l’Amérique du Nord Britannique, n’était toujours pas
rapatrié (Rémillard, 1985). Ce fait, qui demeurait un symbole de
l’inachèvement de l’État national canadien, devint alors l’un des plus
importants problèmes politiques au Canada. Les débats constitutionnels furent
désormais hantés par la nécessité, proclamait-on, de rapatrier la Constitution.
Or, cette volonté de rapatriement liée aussi bien au conflit de compétence
impliqué par le passage à l’État-providence qu’aux revendications nationales
québécoise et autochtone contribua à la constitutionnalisation des luttes
politiques évoquées plus haut.
Si l’on s’en tient provisoirement à la période qui va de 1867 aux années 30, la
conjugaison des deux problèmes que nous venons d’évoquer se traduira par
l’affirmation de deux nationalismes ethniques en grande partie antithétiques
qui empêcheront l’éclosion d’une identité politique posant l’existence d’une
communauté politique pan-canadienne. Une identité canado-britannique,
soutenant le rattachement à l’Empire, se développera au Canada anglais et
célébrera l’idée de la race anglo-saxonne et protestante (Breton, 1988 ;
Lacombe, 1993). En milieu francophone s’affirmera à l’opposé un
nationalisme tout aussi ethniciste centré sur la promotion de la race canadiennefrançaise
et catholique. En somme, à la fin des années 1930, bien que l’État
canadien, sauf en matière constitutionnelle, soit devenu pleinement autonome,
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Les identités, la fragmentation de la société et la
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la construction d’une communauté nationale (pan-étatique) n’a pas encore été
réalisée.
De 1940 à 1960 : L’émergence d’une culture politique nationale et
d’une identité canadiennes problématiques
Une série d’événements, les uns témoignant de la transformation de la forme du
régime, les autres de la forme de l’État, favoriseront l’éclosion d’une identité
pleinement canadienne, dans les faits une identité canadienne-anglaise qui
rompt avec la Mère patrie. Ces mutations significatives du régime politique
provoquées par le Statut de Westminster en 1931, la loi sur la citoyenneté
canadienne en 1946 et la cessation des appels au Conseil privé en matière
constitutionnelle en 1949 impulseront, en milieu anglophone, la centration de
l’identité politique dans l’espace canadien. Cependant en nous référant aux
débats constitutionnels et aux luttes politiques qu’ont impliqué le passage à
l’État-providence l’on pourra mieux comprendre la nature de la nouvelle
identité canadienne. La centralisation des pouvoirs rendue nécessaire pour la
mise en œuvre des interventions du gouvernement fédéral dans plusieurs
domaines jusque-là de compétences provinciales a permis à ce dernier de se
poser comme le seul véritable « gouvernement national » au Canada. De même,
la philosophie d’inspiration universaliste du providentialisme a suscité
l’émergence d’une conception pan-canadienne des rapports sociaux.
On assiste ainsi à l’émergence d’un nationalisme civique qui rompt avec
l’ethnicisme lié à l’idée de la race anglo-saxonne et protestante. Centré sur la
notion de citoyen, ce nouveau nationalisme est intimement lié au passage à
l’État-providence. Il promeut, en effet, l’affirmation d’une citoyenneté
universaliste d’inspiration clairement providentialiste. Au nom de l’égalité des
chances, tous les citoyens partout au Canada, soutient-on, doivent avoir accès
aux mêmes services, jouir des mêmes droits et profiter des mêmes politiques
sociales universelles.
Ce nationalisme civique universaliste et providentialiste se présente en même
temps comme un nationalisme institutionnaliste. Se retrouve ici la véritable
particularité de ce nouveau nationalisme canadien qui n’est pas centré sur la
notion de nation. C’est plutôt autour de l’idée du national, de la « norme »
nationale d’inspiration providentialiste, que se construit l’idéologie nationale
de la citoyenneté canadienne. Le gouvernement fédéral devient l’ultime garant
d’un espace national au sein duquel se déploie la socialité providentialiste. On
peut parler à ce titre d’un nationalisme stato-civique qui pose l’existence d’une
communauté de citoyens partageant les mêmes services, au sein des mêmes
institutions politiques nationales.
Le fait que l’idée de nation (de la nation canadienne) qui, bien que présente dans
le discours politique, n’intervienne pas de façon significative dans la
construction de l’idéologie nationale de la citoyenneté est le principal indice du
caractère problématique de ce nouveau nationalisme. Il faut, en effet, constater
que le nationalisme stato-civique canadien se construit dans un interdiscours
qui l’oppose au nationalisme canadien-français. Le gouvernement du Québec
dirigé par Maurice Duplessis s’opposera aussi bien à la centralisation qu’au
passage à l’État-providence en appelant au respect de la division des pouvoirs
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inscrits dans la Constitution de 1867, texte qu’il présente comme un pacte sacré
entre les deux races fondatrices de l’État canadien (Bourque, Duchastel et
Beauchemin, 1994). Le premier ministre québécois continue donc à s’inspirer
du vieux nationalisme ethnique canadien-français. Sa défense de l’autonomie
provinciale s’inscrit ainsi dans le cadre d’une double lutte marquée par le triple
refus du nouveau nationalisme canadien, de la redéfinition des pouvoirs au sein
du fédéralisme et du passage à l’État-providence.
On constate ainsi comment le problème national canadien-français, non résolu
en 1867, bloque l’affirmation d’une identité nationale pan-étatique, en même
temps qu’il favorise la résistance au passage à l’État-providence au Québec. De
même, il faut le souligner, les questions constitutionnelles deviennent l’un des
principaux enjeux de l’histoire politique canadienne à partir de la deuxième
guerre mondiale. Le projet du passage à l’État-providence implique déjà la
multiplication des conférences fédérale-provinciales et le foisonnement des
débats constitutionnels. La cessation des appels au Conseil privé en matière
constitutionnelle en 1949 et la nécessité consécutive de rapatrier la
Constitution, tout en trouvant une formule d’amendement agréable à tous les
gouvernements canadiens, achèveront de créer les conditions qui feront de la
Constitution le lieu central des luttes politiques.
1960-1970 : La Constitution comme ferment de la division
Les années 1960 peuvent être considérées comme des années charnières au
cours desquelles se mettent en place quelques-uns des principaux éléments
d’une dynamique qui débouchera, durant les années 1980, sur un véritable culde-sac.
Il faut d’abord noter l’importance que prendra la question du
rapatriement de la Constitution, à la suite de la cessation des appels au Conseil
privé en 1949. Bien que Londres cessa depuis lors de rendre jugement en
matière constitutionnelle canadienne, la Constitution ne pouvait être rapatriée
(c’était du moins la démarche que toutes les parties considéraient légitime3) sans que l’on adopta une formule d’amendement faisant l’unanimité des
gouvernements canadiens. Durant les années 1960 et au début des années 1970,
deux formules d’amendement furent discutées, la formule Fulton-Favreau et la
Charte de Victoria. Elles furent cependant rejetées à cause du désaccord du
Québec. Il n’en reste pas moins que l’obsession constitutionnelle était plus que
jamais au cœur des débats politiques canadiens.
C’est aussi durant les années 1960 que se manifestent les principaux problèmes
occasionés par l’affirmation du nationalisme stato-civique canadien. Ce
nationalisme qui, nous l’avons vu, se construit sans qu’il ne fasse référence de
façon significative à la notion de nation canadienne, ne reconnaît pas, a fortiori,
l’existence d’autres nations ou d’autres cultures politiques au Canada (du
moins jusqu’en 1982, dans le cas des Autochtones). Il aura pourtant à affronter
l’affirmation des nationalismes québécois et autochtone. Les solutions
adoptées ou rejetées face aux revendications nationalitaires durant les années
1960 marqueront décisivement aussi bien l’évolution ultérieure du
nationalismecanadienlui-mêmequelanaturedesdébatspolitiquesauCanada.
Il faut d’abord noter la transformation du nationalisme canadien-français qui,
du moins au Québec, sera liée à l’affirmation de l’État-providence durant la
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Révolution tranquille, au début des années 1960. Un nationalisme civique qui
rompt avec l’ethnicisme canadien-français s’affirme alors, que l’on peut saisir
comme un nationalisme politico-culturaliste. Le nationalisme québécois se
présente, en effet, comme un nationalisme politique qui se définit dans son
rapport à l’espace Québec et à l’État du Québec. Il s’agit d’autre part d’un
nationalisme culturaliste en ce qu’il vise l’intégration des citoyens du Québec
au sein d’une culture politique francophone commune.
Or, la question du Québec constituera la question centrale des débats
constitutionnels canadiens durant les années 1960. Un choix fondamental pour
l’avenir sera fait durant cette période. Plutôt que de satisfaire aux exigences du
Québec qui réclamait un statut particulier au sein de la fédération canadienne, le
gouvernement fédéral reconnaîtra par voie législative, la Loi des langues
officielles, l’existence de droits linguistiques particuliers aux Canadiens
français et par conséquent aux Canadiens anglais, partout au Canada.
Il importe de prendre ici la pleine mesure d’un tel choix. Plutôt que de
reconnaître au sein de la forme de régime des droits politiques liés à l’existence
d’une minorité nationale, plutôt donc que d’assigner un statut particulier au
Québec au sein du système fédéral canadien, on légifère pour conférer des
droits d’appartenance culturelle aux citoyens de langue française et, par
extension, de langue anglaise au Canada. Contrairement à ce que l’on pourrait
penser spontanément, nous ne sommes pas ici face à une simple opposition
entre la promotion de droits collectifs ou de droits individuels. Certes le rejet
d’un statut particulier signifie le refus de reconnaître l’existence d’une minorité
nationale ou, si l’on préfère, d’une culture politique différente. Mais il faut
constater que par le ciblage des droits linguistiques de certains individuscitoyens,onassisteàlaconstitutiondedeuxgroupesd’ayantsdroitauCanada.
Il s’agit là d’un choix décisif qui marquera l’évolution de la vie politique
canadienne jusqu’en cette fin de siècle. La politique linguistique fédérale,
représentant une réponse indirecte à des débats constitutionnels qui
n’aboutissent pas dans le cadre des conférences fédérale-provinciales, marque
un tournant majeur aussi bien au niveau de l’identité nationale canadienne que
de l’institutionnalisation politique au Canada. Une citoyenneté particulariste
reconnaissant l’existence de groupes de citoyens particuliers s’affirme dès lors
au cœur même d’un nationalisme civique qui s’était constitué, nous l’avons vu,
sur la base de l’universalisme providentialiste. Plusieurs autres groupes se
poseront, à partir de là, comme des postulants aux droits et plusieurs autres
types de revendications viendront s’agglomérer autour d’une solution qui
visait au point de départ une question nationale.
La politique linguistique sera le premier moment, d’autre part, de cette autre
transformation majeure qui consistera en la mutation de l’institutionnalisation
politique au Canada. Durant les années 1940 et 1950, nous l’avons vu, s’était
affirmée une institutionnalisation politique caractérisée par la promotion d’une
citoyenneté universaliste centrée sur la reconnaissance des droits politiques,
juridiques et sociaux de l’ensemble des citoyens. On peut parler ici d’une
institutionnalisation juridico-politique en ce qu’elle reconnaît par voie
législative ou constitutionnelle une citoyenneté d’inspiration universaliste
classique (droits politiques et juridiques) et providentialiste (droits sociaux).
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Le politique devient ainsi le lieu de la défense et de la promotion des droits de la
personne et des droits sociaux qu’incarnent tous et chacun des citoyens.
Or, sans que ne soit complètement rejetée cette perspective, la législation
linguistique y introduit un principe contradictoire qui marque un glissement de
l’universalisme au particularisme, du politique au culturel. La législation
linguistique instaure, en effet, une nouvelle pratique d’institutionnalisation que
l’on saisira comme une institutionnalisation juridico-culturelle. Les citoyens
ne sont plus saisis seulement à titre de sujets politiques universels, égaux en
droit et potentiellement égaux en fait (le thème de l’égalité des chances). De
plus, certains d’entre eux sont identifiés à partir de leur langue (française ou
anglaise) et reçoivent en conséquence des droits d’appartenance culturelle. Il
nous faudra revenir sur ce choix qui manifeste la volonté de construire au
Canada un État multiculturel plutôt qu’un État multinational.
L’analyse des années 1960 permet aussi de repérer les premières traces de ce
que nous avons appelé la tendance à la conjugaison des luttes sociales et à la
constitutionnalisation des enjeux politiques. Les revendications
constitutionnelles du Québec, surdéterminées par la nécessité du rapatriement
de la Constitution, contribueront à transformer en questions constitutionnelles
une multiplicité d’enjeux politiques équivalents ou disparates qui ne
manqueront pas de devenir contradictoires. Les années 1960 susciteront
d’abord la montée des revendications régionalistes, rien n’est plus clair durant
les débats qui se tiennent aux conférences fédérale-provinciales. Plusieurs
premiers ministres provinciaux ne manqueront pas d’y faire remarquer que la
question du Québec ne représente pas le seul problème politique au Canada.
L’aliénation de l’ouest, l’inégalité du développement économique régional
leur paraissent, par exemple, des enjeux tout aussi importants. La question de
l’égalité régionale, qui deviendra bientôt celle de l’égalité des provinces, se
dresse déjà contre celle de l’égalité nationale.
De la même manière, mais cette fois par le biais de l’émergence d’une autre
question nationale, celle des peuples autochtones, les années 1960 préparent la
très nette conflictualisation des luttes sociales. Il s’agit cette fois d’une solution
politique ratée qui vise les Premières nations. Les peuples autochtones,
rappelons-le, obtiennent le droit de vote en 1960 et sont ainsi, pour la première
fois, partiellement intégrés au sein de la citoyenneté canadienne. Dans cette
foulée, le Livre blanc sur les Indiens de 1969 propose d’intégrer pleinement les
citoyens autochtones (Weaver, 1981). Au nom de l’égalité des chances et d’une
lutte à la non-discrimination d’inspiration résolument providentialiste, le Livre
blanc suggère de fondre les réalités autochtones au sein de la citoyenneté
universaliste canadienne. L’Autochtone devient un citoyen pleinement égal
aux autres Canadiens sans que ne soit posée la question de son rapport à sa
propre communauté nationale. En d’autres termes, la pleine intégration des
citoyens amérindiens et inuits serait réalisée au prix de l’oubli ou de la négation
de leurs cultures nationales. Devant le refus des Premières nations et
l’affirmationdunationalismeautochtone,legouvernementfédéraldutreculer.
À la fin des années 1960, on a donc déjà assisté à la montée des régionalismes et
du nationalisme autochtone, sans que la question du Québec ne soit
véritablement résolue. Les principaux ferments de la division sont déjà à
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l’œuvre dans le cadre d’une course multiforme à la constitutionnalisation des
droits.
1970-1982 : La constitutionnalisation d’une société fragmentée
Durant les années 1970-1982 aboutira le processus de transformation de
l’identité canadienne qui s’était affirmé durant les années 1940 et 1950 et qui
fut largement marqué par la non-résolution de ces problèmes constitutifs à la
Confédération canadienne depuis 1867 : la question nationale canadiennefrançaise,
puis québécoise, et l’inachèvement de l’État national. Ces deux
problèmes, cela devient on ne peut plus manifeste, contribuent à la conjugaison
et à la conflictualisation de luttes sociales qui prennent la Constitution comme
la cible de la réalisation (par voie judiciaire) d’une pluralité d’identités
fragmentées.
Dans la voie ouverte par la solution apportée aux revendications nationalitaires
du Québec, c’est-à-dire la loi fédérale sur le bilinguisme, les multiples
communautés culturelles canadiennes exigeront leur part de reconnaissance.
Ainsi, dès le début des années 70, la loi fédérale sur le multiculturalisme
viendra constituer juridiquement une multitude de nouveaux groupes d’ayants
droit qui s’ajouteront aux deux groupes de langue officielle. Les droits
d’appartenanceculturellefoisonnentdorénavantdetoushorizonsauCanada.
Comme partout ailleurs on assistera, d’autre part, à l’affirmation des
revendications des nouveaux mouvements sociaux dans la foulée des
transformations de la société salariale providentialiste. Ainsi qu’il est coutume,
le gouvernement canadien, par l’intermédiaire du Secrétariat d’État, tout en
essayant de les contrôler, soutiendra l’organisation d’une multiplicité de
groupes voués à la protection et à la promotion des droits revendiqués par les
nouveaux mouvements sociaux, comme d’ailleurs par les minorités de langue
officielle et par les communautés culturelles (Pal, 1993). La particularité du
Canada tient au fait que ce type de revendications sera avalé par l’aspirateur
constitutionnel. Les leaders des mouvements sociaux viseront, en effet, la
constitutionnalisation de droits catégoriels tout aussi particularistes que les
droits d’appartenance culturelle déjà fort prolixes. Durant les épisodes qui
conduiront au rapatriement de la Constitution, le gouvernement Trudeau
s’appuiera d’ailleurs sur les nouveaux mouvements sociaux dans sa lutte contre
les législatures provinciales. Il faut prendre garde ici de laisser entendre que le
Secrétariat d’État et le gouvernement Trudeau créent d’eux-mêmes et
manipulent les mouvements sociaux, ni d’ailleurs que les revendications de ces
derniers soient irrecevables. Nous voulons seulement souligner que la
mouvance de l’État-providence canadien, les solutions apportées ou formulées
aux revendications des minorités nationales durant les années 1960 et la
nécessité du rapatriement de la Constitution mèneront, sous l’effet de luttes
sociales multiformes, à la constitutionnalisation d’une citoyenneté
particulariste dans la Loi constitutionnelle de 1982.
La Loi constitutionnelle de 1982 et la Charte des droits qui s’y trouve enchâssée
se présentent, en effet, comme un amalgame de droits potentiellement
contradictoires. On y reconnaît d’abord des droits universalistes classiques
comme la liberté d’expression et les droits politiques et juridiques du citoyen
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(articles 2 à 14), ainsi que des droits universalistes d’inspiration
providentialiste (l’article 34, hors charte, confie aux législatures le devoir de
promouvoir l’égalité des chances au Canada). Ces parties de la Loi
constitutionnelle de 1982 reconduisent l’idéologie nationale de la citoyenneté
universaliste qui s’était construite durant les années 1940 et 1950. Cependant,
la Constitution de 1982 introduit en même temps une conception toute
différente axée sur la promotion et la défense d’une citoyenneté particulariste :
une citoyenneté d’ayants droit culturel, d’une part, visant les groupes de langue
officielle et le multiculturalisme (respectivement les articles 16 à 22 et l’article
27) et une citoyenneté d’ayants droit catégoriels qui reconnaît des droits à la
non-discrimination et à l’égalité et qui cible des groupes spécifiques, comme
par exemple les femmes et les handicapés (articles 28 et 15). Il faut insister ici
sur la nouveauté de cette conception de la citoyenneté. Commençons par
souligner, paradoxalement, que la plupart de ces droits particularistes sont
défendus, par exemple dans le discours des premiers ministres aux conférences
fédérale-provinciales, sur la base de ce thème cher au providentialisme qu’est
l’égalité des chances. Ils naissent donc très clairement dans le giron de l’Étatprovidence.
Il n’en reste pas moins que leur constitutionnalisation
systématique finit par rompre avec l’universalisme caractéristique du
providentialisme. Pour le comprendre, il faut rappeler que les politiques
sociales de l’État-providence rompaient elles-mêmes avec le libéralisme et
l’universalisme classiques. Elles visaient implicitement une partie de la
population, c’est-à-dire la classe ouvrière et les plus démunis. Il n’en reste pas
moins que, dans les faits, ces politiques étaient universelles et ciblaient tous les
citoyens. Elles conservaient ainsi l’horizon commun de la citoyenneté ou, si
l’on préfère, elles posaient la communauté politique comme totalité
symbolique redevable envers chacun de ses membres à travers, par exemple, le
thème de la solidarité sociale. Certes il y avait là transformation de
l’universalisme classique, mais en même temps reformulation d’un horizon
moral commun. Au contraire, la citoyenneté particulariste, dès lors qu’elle
prend la Constitution pour cible, finit par scinder symboliquement la
communauté politique en une multiplicité de groupes d’ayants droit qui n’ont
d’autre univers que celui de la reconnaissance judiciaire de leur particularité et
de leurs droits. Il n’est donc pas étonnant que l’idéologie nationale adopte
depuis lors le visage de la citoyenneté particulariste.
En plus d’adjoindre le particularisme aux universalismes classique et
providentialiste, la Loi constitutionnelle de 1982 s’ouvre enfin à la
reconnaissance des droits nationaux des peuples autochtones (article 25), alors
même qu’elle reconduit le refus d’admettre l’existence de la nation québécoise
comme le réclame le mouvement souverainiste du Québec.
1982-1996 : Une société divisée et une Constitution figée
Le rapatriement de la Constitution et la Loi constitutionnelle de 1982 n’allaient
cependant pas résoudre tous les problèmes. Le gouvernement du Québec refusa
de signer l’accord intervenu entre les autres premiers ministres. De même, la
reconnaissance des peuples autochtones demeurait en très large partie une
pétition de principes, puisque leur inscription dans la forme du régime, en
particulier le droit à l’autonomie gouvernementale, restait à définir dans des
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conférences constitutionnelles ultérieures. Loin de briser cette tendance à la
constitutionnalisation des problèmes et des luttes politiques, le rapatriement
mènera à la conflictualisation des rapports sociaux dans le contexte d’une
judiciarisation des enjeux politiques qui contribuera à bloquer toute réforme
(Lusztig, 1994). Nous visons bien davantage que la complexité technique
d’une formule d’amendement qui, sur certaines questions, exige l’unanimité et,
sur d’autres, l’accord de sept provinces représentant 50 p. 100 de la population
canadienne. Nous soutenons que la nature même de l’institutionnalisation
juridico-culturelle, que la Loi constitutionnelle de 1982 consacre, contribue
dorénavant à la fragmentation d’une société dorénavant construite et
représentée sur la base des rapports judiciarisée entre ses groupes d’ayants
droit.
Même si le rapatriement de la Constitution marque l’achèvement de l’État
national canadien, la Loi constitutionnelle de 1982 n’en contribuera pas moins
à l’approfondissement d’une crise de la forme du régime. Loin de résoudre les
problèmes déjà signalés par la tenue du référendum québécois de 1980 sur la
souveraineté-association, la Constitution de 1982 favorisera le développement
d’un processus de conflictualisation des rapports sociaux marquée par la
défense et la promotion de droits particuliers qui sont posés comme étant
réellement, conjoncturellement ou potentiellement contradictoires (Laforest,
1992). Les différents acteurs et groupes d’acteurs qui s’opposent dans le cours
de ce processus se fondent sur une conception antagonique des droits qui
conduit à les rendre objectivement contradictoires. Les droits des uns finissent
ainsi le plus souvent par s’opposer à ceux des autres au nom de leur primauté, de
leur antériorité ou de la nécessité de leur coréalisation.
Sous le primat de la Loi constitutionnelle de 1982 est ainsi apparue une
multiplicité de conflits des droits que l’on peut distinguer de plusieurs points de
vue. Il nous suffira ici de sérier deux grands types de conflits. L’opposition
entre les droits constitutionnalisés dans la Constitution de 1982 représente déjà
un terreau des plus fertiles. Elle suscitera des conflits issus de l’inégalité de
traitement entre la question du Québec et celle des peuples autochtones (le
gouvernement du Québec rappelle que la nation québécoise n’est pas reconnue
alors que le sont les Premières nations) ou encore liés à l’antériorité ou la
nécessité de la corésolution des questions nationales québécoise et autochtones
(un député amérindien bloquera sur cette base l’Accord de Meech au
Manitoba) 4. L’antagonisme entre les droits particularistes (droits
d’appartenance culturelle et droits sociaux catégoriels) et les droits nationaux
seront eux-mêmes sources de conflit : le mouvement féministe et les
représentants des communautés culturelles s’opposeront, au nom de leurs
droits, à la reconnaissance de la société distincte (ou à une définition extensive
de celle-ci) lors des débats sur l’Accord du Lac Meech et l’entente de
Charlottetown5 ; le mouvement féministe voudra soumettre la reconnaissance
de l’autonomie gouvernementale autochtone à la primauté des droits à la nondiscrimination
et à l’égalité inscrite dans la Charte des droits et libertés (Pal,
1993).
L’obsession constitutionnelle conduira d’autre part à la conflictualisation entre
des droits potentiellement constitutionnalisables. Ainsi la mouvance
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régionaliste dressera le projet du Sénat triple E et le principe de l’égalité des
provinces devant les revendications du Québec, alors que le mouvement des
homosexuels exigera l’égalité et la constitutionnalisation des droits des gays et
lesbiennes.
Cette conflictualisation des revendications sociales qui conduit à la crise du
régime politique est évidemment liée à la judiciarisation des rapports sociaux
provoquée par l’obsession constitutionnelle. La constitutionnalisation des
droits dans la Constitution de 1982 est apparue dans une très large partie comme
une arme contre les législatures provinciales. Elle tend ainsi à privilégier les
institutions judiciaires aux dépens des institutions de la démocratie
représentative y compris le parlement fédéral. Il est inutile de multiplier les
exemples. Ne mentionnons que cette curieuse clause nonobstant, fort ambiguë
à tous égards, qui finit par poser les législatures comme des violatrices
potentielles des droits plutôt que comme des productrices du droit. Soulignons
d’autre part que la Loi constitutionnelle de 1982, comme on a pu le constater
dans la suite des débats, paraît l’inspiratrice sinon l’instigatrice d’un
mouvement de mise en tutelle des législatures. Citons par exemple la
proposition du gouvernement fédéral durant les discussions qui ont mené à
l’entente de Charlottetown de créer « un organisme indépendant chargé de
surveiller et d’évaluer les politiques macroéconomiques des gouvernements
fédéral et provinciaux » (Gouvernement du Canada, 1991).
Les échecs répétés des réformes constitutionnelles depuis 1982 apparaissent
ainsi comme le symptôme d’une crise profonde du politique au Canada. La
non-résolution des questions autochtones malgré les conférences fédéraleprovinciales
tenues de 1983 à 1987, l’échec de l’Accord du Lac Meech en 1990,
le refus de l’entente de Charlottetown de 1992, l’incapacité évidente de
construire un compromis acceptable suite au référendum québécois de 1996,
qui a failli diviser le pays, tout cela témoigne du fait que la négativité paraît
dorénavant le principe qui guide les rapports politiques au Canada.
La société canadienne arrive moins que jamais à se représenter comme une
véritable communauté politique, c’est-à-dire comme une communauté
susceptible de résoudre ses conflits en regard d’un horizon moral commun
permettant une discussion des pouvoirs qui peut déboucher sur des compromis.
Rien n’est plus remarquable à ce propos, comme en témoigne le discours des
premiers ministres dans les débats constitutionnels depuis 1982, que le
fonctionnement de l’idéologie nationale de la citoyenneté particulariste qui
tient lieu dorénavant de doxa au Canada.
Conclusion
Nous avons soutenu, dans cet article, que les transformations politiques qui
surviennent au Canada depuis les années soixante sont largement déterminées
par un double phénomène qui opère en longue durée, depuis 1867 : le
nationalisme canadien-français puis québécois et l’inachèvement de l’État
national canadien. Nous voudrions insister en terminant sur le fait que, au-delà
de ces déterminations et de bien d’autres qui sont reliées aux mutations de
toutes les sociétés démocratiques occidentales durant la seconde moitié du
vingtième siècle, les transformations que nous évoquons résultent d’un choix
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Les identités, la fragmentation de la société et la
constitutionnalisation des enjeux politiques
politique dont il faut mesurer pleinement les conséquences. Ce choix a consisté
à parachever la construction de l’État national canadien par le rapatriement de
la Constitution, tout en continuant à ne pas reconnaître l’existence d’une
culture politique nationale différente au Québec. Cette démarche a poussé à la
construction d’un État multiculturel plutôt que d’un État multinational. Or, ce
choix n’est pas neutre et plus encore ses effets ont des conséquences beaucoup
pluslargesquedansleseuldomainedesrelationsentrelesnationsauCanada.
Ce que nous appelons l’État multiculturel implique en effet une
institutionnalisation juridico-culturelle qui divise la société en une multiplicité
de groupes d’ayants droit aux rapports conflictuels. Mais plus encore, une telle
institutionnalisation oriente l’action politique dans le sens de la réalisation, par
la voie constitutionnelle, de droits qui découlent d’une conception bioculturelle
du lien social. Elle signifie donc, au niveau de la représentation du
monde, une ethnicisation des cultures puisque ces dernières sont conçues
comme simple émanation de chaque communauté culturelle posée comme
groupe ethnique. Elle présuppose aussi une biologisation de la représentation
des groupes sociaux, chacun d’entre eux étant saisi à partir d’un trait biologique
ou comportemental, inné ou constitutif (ne serait-ce que par accident) : les
hommes, les femmes, les handicapés, les jeunes, les personnes âgées, les
homosexuels, etc. L’institutionnalisation juridico-culturelle est enfin
caractérisée par une juridicisation-constitutionnalisation des rapports sociaux
qui, nous l’avons souligné, tend à la mise en veilleuse des institutions de la
démocratie représentative. Elle est ainsi fondée sur cette utopie qui consiste à
vouloir figer une fois pour toute les rapports sociaux dans un texte fondateur qui
assurerait définitivement la réalisation des droits de chaque groupe social. Elle
oppose finalement « l’éternité » du droit aux risques d’une temporalité
politique soumise à la libre discussion du pouvoir dans les instances de la
démocratie représentative. L’État multiculturel fait du temps son ennemi, il
instaure une primauté du judiciaire qui vise à soumettre la temporalité
politique, celle du libre développement de la discussion du pouvoir et des
risques que la posture démocratique suppose nécessairement, à la surveillance
soupçonneuse de la Constitution et du Tribunal. Quand, dans sa lutte aux
promoteurs du Lac Meech, Pierre-Elliott Trudeau écrivit qu’il avait espéré que
la Constitution de 1982 dura mille ans, il faisait bien davantage qu’une boutade.
L’institutionnalisation multiculturelle est hantée par la peur de l’avenir et elle
rompt l’équilibre entre le judiciaire et le législatif, le Droit et le Parlement sur
lequel s’étaient construits et transformés l’État moderne et la démocratie
libérale.
Un autre choix était cependant possible qui aurait permis de résoudre en même
temps les problèmes des questions nationales (québécoise et autochtones) et de
l’inachèvement de l’État national canadien. Un tel choix, encore réalisable,
nécessiterait la construction d’un État multinational et l’instauration d’une
institutionnalisation juridico-politique fondée sur la reconnaissance de la
pluralité des cultures politiques nationales au Canada. Nous entendons par un
État multinational, un État qui reconnaît juridiquement dans sa constitution, et
donc dans les institutions du régime, des droits politiques liés à l’existence de
communautés nationales différentes. Au Canada, un tel projet signifierait sans
doute la transformation du régime fédéral actuel en une union confédérale dont
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les composantes seraient constituées du Québec, du reste du Canada (les neuf
autres provinces) et d’un gouvernement autochtone (comme le proposait
d’ailleurs récemment, dans ce dernier cas, le rapport de la Commission royale
sur les peuples autochtones [1996]). Dans le cadre de cet article, nous ne
pouvons évidemment nous engager dans une description détaillée de la
répartition des compétences qu’impliquerait une souveraineté partagée entre
les gouvernements d’une telle union confédérale. Soulignons seulement que
l’on pourrait s’inspirer ici de l’expérience européenne.
Nous voudrions surtout insister sur le fait qu’un tel régime permettrait enfin à la
communauté canadienne de se reconnaître pour ce qu’elle est : une
communauté politique supranationale. Cette communauté trouverait sa
légitimité pleine et entière dans l’existence d’un Parlement commun élu
directement au suffrage universel par les citoyens de toutes les composantes de
l’Union. Les membres élus de ce Parlement auraient pleins pouvoirs
d’initiative dans le domaine des compétences qui lui seraient confiées dans le
cadre de l’Union confédérale. Cette dernière s’appuierait sur une constitution
qui proclamerait les droits universalistes (politiques, juridiques, économiques
et sociaux) de la personne et du citoyen, droits devant être reconnus aussi bien
au niveau confédéral que par tous les autres gouvernements de l’Union. Quant
aux droits culturels et catégoriels, leur reconnaissance et leur promotion
seraient d’autant plus facilitées qu’ils n’entreraient plus en conflit avec les
revendications nationales québécoise et autochtone d’ores et déjà satisfaites
dans les institutions politiques de l’Union confédérale.
Un tel régime politique permettrait aussi bien la reconnaissance de la pluralité
des cultures politiques nationales que la construction d’une citoyenneté et
d’une communauté politique supranationale. Ainsi le fait d’être Canadien et
Québécois ou Canadien et Autochtone ne serait plus conçu comme une
antinomie ou comme un problème par plusieurs citoyens de ce pays, mais, au
contraire, comme la reconnaissance politique de la complexité des identités qui
partout dans le monde s’affirment en cette fin de siècle. Un tel régime politique
permettrait, croyons-nous, de dépasser au Canada l’âge des contrenationalismes
canadien, québécois et autochtone.
Notes
1. Dans un livre intitulé L’Identité fragmentée (1996), nous avons analysé la production des
références identitaires dans les débats constitutionnels canadiens de 1941 à 1992. Le lecteur
pourra consulter cet ouvrage s’il s’intéresse à la démonstration empirique de bon nombre des
thèses que nous développons dans le présent article.
2. John A. Macdonald, l’un des « pères » de la Confédération canadienne écrivit à ce propos :
« Je n’ai jamais hésité à dire que si la chose était praticable, une union législative eût été
préférable. [. . .] Si nous pouvions avoir un gouvernement et un parlement pour toutes les
provinces, nous aurions eu le gouvernement le meilleur, le moins dispendieux, le plus
vigoureux et le plus fort. [. . .] J’ai trouvé que ce système était impraticable. Et, d’abord, il ne
saurait rencontrer l’assentiment du peuple du Bas-Canada, qui sent que, dans la position
particulière où il se trouve comme minorité, parlant un langage différent, et professant une
foi différente de la majorité du peuple sous la confédération, ses institutions, ses lois, ses
associations nationales, qu’il estime hautement, pourraient avoir à en souffrir. C’est
pourquoi il a été compris que toute proposition qui impliquerait l’absorption de
l’individualité du Bas-Canada, ne serait pas reçue avec faveur par le peuple de cette section.
Nous avons trouvé, en outre, que quoique le peuple des provinces inférieures parle la même
92

langue que celui du Haut-Canada et soit régit par la même loi — loi basée sur le droit anglais
— il n’y avait, de la part de ces provinces, aucun désir de perdre leur individualité comme
nation, et qu’elles partageaient à cet égard, les mêmes dispositions que le Bas-Canada »
(Canada, Assemblée législative, 1865).
3. Le gouvernement Trudeau passa finalement outre au début des années 1980 et la
Constitution fut rapatriée sans l’accord de toutes les parties. La Cour Suprême du Canada
avait pourtant émis l’avis quelques temps plus tôt que la démarche était légale à défaut d’être
légitime.
4. En 1986, Gil Rémillard, ministre de la Justice du gouvernement Bourassa, énonça cinq
conditions « minimales » pour que le Québec s’insère « avec honneur et dignité » dans le
nouvel ordre constitutionnel : (1) la reconnaissance explicite du caractère distinct du
Québec, (2) des pouvoirs élargis en matière d’immigration, (3) une limitation au pouvoir de
dépenser d’Ottawa, (4) un droit de veto sur les amendements constitutionnels et (5) la
participation du Québec à la nomination des juges de la Cour suprême. Dans une conférence
tenue au Lac Meech, le 30 avril 1987, tous les premiers ministres se montrèrent favorables
aux demandes du Québec et signèrent un document conjoint. Cet accord devait être entériné
par tous les gouvernements canadiens dans un délai de trois ans. L’aspect le plus important
de « l’Accord du Lac Meech » était la « clause de la société distincte », un énoncé dont
l’objectif était d’imposer aux tribunaux, pour interpréter la Constitution, de tenir compte du
rôle particulier du Québec dans la protection et la promotion de la langue et de la culture
françaises. Cette clause suscita beaucoup de réticences au Canada anglais, car l’on
considérait qu’elle pouvait mettre en cause le principe de l’égalité des provinces au sein de la
Confédération. En outre, plusieurs groupes d’intérêt (dont les féministes) exprimèrent leurs
craintes concernant une éventuelle prédominance des droits collectifs sur les droits
individuels au Québec, alors que les Premières nations s’opposèrent fermement à cette
entente dont elles se sentaient complètement exclues. Lorsque, en 1990, vint le moment de
faire ratifier l’Accord du Lac Meech par les parlements provinciaux, Elijah Harper, un
député autochtone à l’Assemblée législative du Manitoba, vota contre le traitement accéléré
de l’amendement constitutionnel (il fallait le consentement unanime pour suspendre les
procédures normales de l’Assemblée pour la tenue de débats et d’audiences publiques), ce
qui eut pour effet d’empêcher la ratification de l’accord avant l’expiration du terme de trois
ans. L’Accord du Lac Meech n’a donc pu être inscrit dans la Constitution.
5. Après l’échec de l’Accord du Lac Meech, le gouvernement québécois exigea à nouveau une
réponse du reste du Canada à ses demandes constitutionnelles, faute de quoi un référendum
sur la souveraineté du Québec serait tenu, au plus tard, en octobre 1992. Les premiers
ministres, cette fois accompagnés des représentants des peuples autochtones, s’affairèrent à
élaborer une nouvelle proposition de réforme constitutionnelle. Le 28 août 1992 fut adoptée
« l’entente de Charlottetown ». Elle refléta la grande diversité des positions et des enjeux qui
traversaient le débat politique canadien depuis l’échec de l’Accord du Lac Meech. Entre
autres, l’entente cherchait à concilier les « conditions minimales » posées par le Québec, le
droit à l’autonomie gouvernementale des Autochtones, la réforme du Sénat exigée par les
provinces de l’Ouest, une Charte de droits sociaux et certaines mesures souhaitées par
Ottawa qui visaient le renforcement de l’union économique du Canada. Chaque groupe
d’intérêts tâcha d’inscrire ses revendications à l’ordre du jour, donnant ainsi lieu à une sorte
de « patchwork » sans cohérence véritable. Ratifiée par tous les premiers ministres
canadiens, l’entente de Charlottetown fut néanmoins rejetée lors du seul référendum à avoir
été tenu sur la question constitutionnelle dans l’ensemble du Canada. Le référendum (qui
était en fait un plébiscite consultatif) fut tenu le 26 octobre 1992. 54 p. 100 de la population
canadienne vota contre la proposition.
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94

Francisco Colom-González
Dimensions of Citizenship: Canada in
Comparative Perspective
Abstract
Civil, political and social rights have usually been considered distinct
dimensions of citizenship. Because of its particular history, Canada was one
of the first countries to include cultural rights in its constitutional and nationbuilding
agenda. Whereas multicultural policies are a type of social rights,
the linguistic rights of national minorities reflect a commitment to the basic
identities that comprise the polity. Depending on the particular junction of
ethnic and political elements, four patterns of citizenship are distinguished:
republican, liberal, ethnocultural and multicultural. Canadian citizenship is
considered from this perspective. It is concluded that the future evolution of
Canadian citizenship mainly depends on its skill in balancing the opposing
social cleavages within it.
Résumé
Dans l’ensemble, les droits civils, politiques et sociaux ont été perçus
jusqu’ici comme des aspects distincts de la citoyenneté. Étant donné ses
antécédents historiques particuliers, le Canada a été l’un des premiers États
à inclure les droits culturels dans son programme constitutionnel et son projet
de développement d’un pays. Bien que les politiques multiculturelles soient
une forme de droits sociaux, les droits linguistiques des minorités au pays
témoignent d’un engagement à l’égard des diverses entités fondamentales de
la constitution politique. Selon l’agencement particulier des éléments
ethniques et politiques, quatre modèles de citoyenneté se démarquent : le
modèle républicain, le modèle libéral, le modèle ethnoculturel et le modèle
multiculturel. C’est selon cette perspective que le présent article envisage la
citoyenneté canadienne. L’auteur conclut que son évolution dépendra
principalement de son habileté à équilibrer les forces sociales qui s’affrontent
en son sein.
Citizenship Rights: Civil, Political and Social
Citizenship is an egalitarian and multidimensional condition enjoyed by full
members of a political community. On one hand, it is both a legal and an
emotional concept that defines the rights, obligations and allegiances of the
individuals to a nation (Morton 1993). Citizenship also has a historical
dimension, since the rights and duties borne by the citizens of a country result
from particular political experiences and social interactions. T. H. Marshall’s
classic account of modern citizenship was based on this view. According to
him, citizenship rights can be conceptually divided into three different groups
(civil, political and social rights) all of which are embedded in the institutions of
International Journal of Canadian Studies / Revue internationale d'études canadiennes
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the present liberal state. Civil citizenship mainly embodies the rights that
secure individual freedom, that is, “liberty of the person, freedom of speech,
thought and faith, the right to own property, to conclude valid contracts and the
right to justice” (Marshall 1950: 10). On a different level, political rights and
social entitlements channel citizen participation in the exercise of power and
allow the state to grant a modicum of welfare and economic security. In
Marshall’s view, each of these dimensions of citizenship emerged during a
process of national integration and mobilization that stirred a “sense of
community membership and common heritage” among the citizens of modern
states.
Several years after Marshall, Stein Rokkan, a leading theorist of the
functionalist school in sociology, depicted social citizenship as the last step in
the process of nation-building. The advance of formal democracy in the West
could be therefore described as:
a process of institutional innovation leading to the imposition of
formally equal obligations and the granting of formally equal rights to
all adults independently of differences in their established influence
through roles in the kinship system, the local community or other
corporate bodies. Direct taxation, military conscription and
compulsory education would be major examples of formally
universalized obligations to the nation-state, while equality before the
courts, social security provisions and universal suffrage would be the
principal examples of national citizen rights (Rokkan 1970: 27).
Marshall’s account of citizenship drew heavily on British history. However, its
conclusions were too specific and value-ridden to apply as a general model. In
each country, the pursuit of political freedom and social equality has taken
different routes. In Canada, the term citizenship did not appear in the 1867
Constitution. The decline of the British Empire after the Second World War and
the specific political needs of the Commonwealth states led to an array of
different national citizenships within it. Canadian citizenship was thus
formally created in 1946 through the Citizenship Act. Nevertheless, its
evolution both as a legal status and a political idea must be understood within
the wider context of Canadian nation-building. Together with the institution of
the Supreme Court as Canada’s final court of appeal in 1949 and with the
adoption of a national flag and anthem in 1965 and 1975, the Citizenship Act is
undoubtedly one of the main symbolic landmarks of that process.
At best, a comparative approach renders Marshall’s sketch of rights as a
political narrative providing a time reference and normative criteria for
analyzing citizenship rights, rather than an actual account of their historical
development. The political and intellectual roots of citizenship differ
significantly in each country. For instance, the idea of citizenship as
membership in a legal and political community was entirely alien to British
thinking and history (Brubaker 1989: 10). Only recently has Britain attempted
to define itself as a nation-state, since the idea of “imperial subjecthood” had
long pervaded both its own and its colonies’ self-definition (Bothwell 1993). In
fact, British national citizenship did not exist until 1981, although its normative
core developed through an inclusive process involving the consecutive
recognition of different sets of rights, starting with civil rights in the eighteenth
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Dimensions of Citizenship
century and continuing with full political rights and social entitlements in this
century.
Citizenship rights in France, Germany and the United States have a very
different history altogether. Suffrage was extended in each country at a
different pace. French and American political rights were the product of
revolution and, like civil rights in Britain, were originally linked to property.
Marshall’s imagined sequence of rights was also inverted by the German
experience, since social rights were granted under Bismarck’s rule as a means
to block democratic reforms. As for Canada, only after status Indians and Inuit
were allowed to vote in 1960 could it be said to have had a universal franchise
(Ungerleider 1992). Unlike France, with its Proclamation of the Rights of Man
and Citizen in 1789, no revolutionary moment inaugurated Canadian
citizenship rights. Their constitutional entrenchment actually clashed with the
longstanding British tradition of parliamentary supremacy. Nevertheless,
citizenship rights have developed a particular legal and political culture in
Canada since Prime Ministers John Diefenbaker had his Bill of Rights passed in
1960 and since Pierre E. Trudeau’s Charter of Rights and Freedoms was
included in the constitutional package of 1982 (Williams 1985). Although
clearly a product of Canada’s particular ethno-political cleavage, the inclusion
of cultural rights in the agenda of citizenship must be considered a valuable and
specific Canadian contribution to modern constitutionalism.
Cultural Rights and the Idea of Canadian Citizenship
The idea of citizenship draws its normative core from ancient Greece, the
Roman Republic and the city-states of northern Italy during the Middle Ages.
Originally, this term referred to those possessing all the rights and duties
enjoyed under the constitution of a jural society (Kaplan 1993: 247). Citizens
were reciprocally bound by their right to participate in governing their city and
by their obligation to defend it against alien enemies (Baron 1988). Citizenship
in modern states has inherited some of the moral gist of its classical counterpart:
it should be egalitarian, democratic and unique in order to induce the citizens to
make any necessary sacrifices for the state. Nation-states emerging since the
nineteenth century, however, imposed a further condition on state
membership: it should be based on a community of language and culture.
According to John Stuart Mill’s classical statement, representative government
could only take root with a “sufficient amount of mutual sympathy among the
populations” based on affinity of “race, language, religion and, above all, of
political institutions, as conducing most to a feeling of identity of political
interest” (Mill 1991). Whenever possible, nation-building was carried out
under the dictates of cultural assimilation, viewed as the only way a nation-state
could fulfil the romantic dictum and become a nation’s state (Brubaker 1989:
4).
Canada obviously deviates from this pattern. State-making and nation-building
have not merged to produce a homogeneous nation-state. Canada is neither the
product of the “national principle” nor of a political revolution, but of the
particular fate of the British Empire in North America: the eventual union of the
possessions of the British Crown which did not revolt in 1776 (Srebnik 1992).
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Assimilationist attempts following the classic nation-building model, as
encouraged by Lord Durham, ostensibly failed when confronting la
survivance, the determination of French-Canadians to preserve their distinct
culture. The development of the Canadian state since the British North America
Act of 1867 has therefore followed a cultural pattern whose inner hierarchy has
had to adjust to the surmounting political demands of different minorities.
Because it lacked an ethnocultural cohesion and a foundational political myth
from the beginning, Canadian citizenship has traditionally coexisted with
multiple loyalties: to the British Empire, to what many French-Canadians and
Aboriginals consider their own nations, to the provinces and to old homelands
in the case of the immigrants. All of these cultural cleavages have made their
way into the Canadian political language, which granted them a specific
terminology: Founding Peoples, First Nations, Quebeckers, New Canadians.
The absence of a common sense of nationhood and the recurrent metaphor of
the “two solitudes” have also become an inevitable topic whenever Canadian
identity and political unity are discussed. Defining Canadianness has become a
favoured issue in post-modern political approaches, which describe Canadian
citizenship as “fragmented,” “layered” or “non-centered” (Fulford 1993,
Cairns 1993, Lanphier and Richmond 1995).
Taking into account Canada’s social complexity, the recognition of citizenship
rights, and of cultural rights in particular, has played a major role in its
contemporary attempts at nation-building (Breton 1986). This is particularly
obvious if we regard the Charter proposals during the period of constitutional
reform as an attempt to locate the citizen at the centre of the governmental
process. The constitutional entrenchment of citizen rights aimed to curtail the
strength of both provincialism and Quebec nationalism (Cairns 1992: 4,
Williams 1985: 112, Colom 1996). Judicially enforceable rights were to help
erode the dominant role of executive federalism in the policy-making process,
whereas the constitutional status of official language educational rights was
expected to reduce the political appeal of Quebec nationalism. The ideology of
multiculturalism appeared later in this context as an alternative to the twonation
approach to Canadian identity. As Prime Minister Pierre Elliott Trudeau
stressed in his address on multiculturalism to the House of Commons in 1971,
Canada had two languages, albeit no official culture (House of Commons
Debates, 8545-46). Politically and ideologically, cultural rights can be said to
constitute an essential element of the Canadian idea of citizenship.
With the appointment of the Royal Commission on Bilingualism and
Biculturalism in 1963, language rights took the lead in the politics of
citizenship. In 1969, English and French were given the status of official
languages at the federal level, but linguistic rights were soon to open the way for
the recognition of a wider set of cultural rights. Two years later, Canada became
the first country in the world to adopt multiculturalism as a public policy, and in
1982, Section 27 of the Charter of Rights and Freedoms further guaranteed
Canada’s multiculturalism by proclaiming a constitutional commitment to
preserve the cultural heritage of its citizens. Under this clause, the promotion of
cultural rights eventually extended to recognize the equal standing of all
religions and to allow public funding for heritage language schools. Having
started as “a conscious support of individual freedom of choice” concerning
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Dimensions of Citizenship
cultural allegiance, multiculturalism would become “a policy to preserve and
enhance the multicultural heritage of Canadians” and “a fundamental
characteristic of the Canadian heritage and identity.” The Multiculturalism Act
of 1988 reasserted the federal will to preserve cultural diversity as the new core
of the official discourse on Canadian identity. By establishing a nationwide
code of linguistic rights, the Charter provided the framework for a nonterritorial
approach to language issues in Canada and a platform for Trudeau’s
dream of reshaping Canadian identity along citizenship lines.
The position of cultural rights in a developmental theory of citizenship like the
one sketched by Marshall is rather ambiguous. Unlike civil and political
liberties, cultural rights are not rights in the traditional liberal sense. The good
they protect is not individual autonomy against state power, but ways of
belonging to a given cultural and political community. Cultural rights like those
granted by Canadian multicultural agencies can be viewed as a special
immigration-focused kind of right among a wider array of social rights
provided to all citizens under welfare state schemes. In this perspective,
multiculturalism appears as a particular sort of integration policy. The case of
linguistic rights for national minorities is significantly different. Their official
status in the Charter reflects the basic collective identities which comprise the
Canadian political community. In other words, “they represent a cultural
compromise designed to enable two linguistic communities to coexist in one
federal country” (Greene 1989: 186).
Canada has made a remarkable attempt to integrate both sorts of rights in
forging a common identity out of an ethno-racially complex society. However,
the political results of this agenda since its launch by the Royal Commission on
Bilingualism and Biculturalism have been at least ambiguous. Though the
language and educational rights included in the Charter proposals during the
1960s were mainly intended to address the English/French cleavage, they soon
penetrated the political rhetoric of other cultural groups. Multiculturalism
eventually consolidated as a state-sponsored ideology, and evolved from
folkloric celebration of diversity into a set of anti-discriminatory and race
relations policies (Fleras and Elliot 1992).
However, the agenda of multiculturalism as a federal policy has not proceeded
without problems. A persisting fear exists in Canada that it slides dangerously
close to interest-group politics and that the language of cultural rights is used to
dress up political demands. Multiculturalism, therefore, has at best been
perceived as a civic philosophy offering new legitimacy to the Canadian state
and, at worst, as an Anglophone strategy to either outdo the French minority or
control the other ethnic groups (Paquet 1994: 67, Fleras and Elliot 1992: 67,
Helly 1996). Supporters of a strong pan-Canadian identity have traditionally
criticized it as a dispensable source of social division. Meanwhile, some voices
among ethnic minorities have recently joined the choir of critics denouncing
multiculturalpoliciesasineffectiveorevenasstigmatizingfortheirmembers.
Multicultural policies did not run smoothly among Francophone political and
intellectual circles either. In the beginning, they were warily perceived as an
attempt to reduce the French factor in Canada to the condition of other
immigrant ethno-cultural minorities. When multiculturalism was inaugurated
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as a federal policy in 1971, Quebec sovereignists clearly rejected it. However,
the necessity of confronting the demographic and linguistic pressures of
immigration in a predominantly Anglophone environment finally enticed the
Quebec government to develop its own policy for managing cultural pluralism
in1981. Themuchdebated Loi101 notonlyinaugurated anaggressive policyto
ensure the dominant status of French language in Quebec, but also marked a
significant departure from the ethnic self-definition of French-Canadian
identity. Interculturalisme became the brand for a new scheme of provincial
cultural policies, meaning that the French language and culture would
thereafter be differentiated so that immigrants could be included in the
Francophone political community. This policy was inspired by the perception
of an intrinsic contradiction between the bilingualism and multiculturalism
policies. Quebec’s interculturalisme openly recognizes the existence of a
hierarchy of cultures and an asymmetry favouring the French language as an
instrument for integration (Paquet 1994). However, since federal multicultural
policies have never questioned the integrative role of English language in the
rest of Canada, its difference with Quebec’s interculturalisme is probably more
practical than theoretical. It has been noticed, for instance, that Quebec’s
government is more inclined to finance multi-ethnic associations than monoethnical
ones (Helly 1996), thus enhancing the role of Quebec’s official
language and institutions as means for cultural communication.
Regardless of the difficulties inherent in its implementation as a public policy,
the ideological core of multiculturalism has gained importance as the Canadian
unity crisis has worsened. Immigration and multiculturalism have indeed been
crucial elements in Canadian nation-building (Breton 1986, Tepper 1994). As
in the case of the United States or Australia, immigration has played a major
role in shaping the Canadian experience and historical narrative. Although
national narratives are undoubtedly fictitious to a great extent, they play a
crucial role in providing the symbols, cultural meanings and political values
that inspire collective identities. The immigration epics implied in the
“American dream,” for instance, have no equivalent in Europe, where national
identities are deeply rooted in history and the need to redefine them to
accommodate the immigrant communities is rarely perceived.
In Canada, the Anglo-French cleavage and enduring ties with the British
Empire prevented the emergence of a unified historical narrative. In fact, no
English-Canadian equivalent to la survivance exists. In this context
multiculturalism policies have not only assisted in managing social diversity,
but have also provided the symbolic discourse for accommodating it and
offered a self-image of Canada as being a “mosaic” as opposed to its “meltingpot”
neighbour to the south. The social and cultural rights comprised in the
Charter were part of a wider nation-building agenda intended to produce a
Canadian identity and civic culture distinct from the individualist and
assimilationist features that predominate in its American counterpart. The
crisis of the welfare state and the uncertain future of Quebec in the federation
have placed this project on a rather shaky footing.
It is now obvious that the constitutional entrenchment of linguistic rights has
not eroded support for Quebec nationalism, whose roots are more complex than
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Dimensions of Citizenship
just language. It also seems clear that multiculturalism is unsuited to
reconciling Canada’s ethno-territorial cleavage by offering a renewed basis of
citizenship. In the long term, multicultural policies can only serve to dignify the
immigrants’ identities and therefore to facilitate their social integration.
However, the political narrative of Canadian multiculturalism is quite unique:
while clearly a political response to the demands of inclusion by immigrant
communities, it also constitutes the ideological platform of a liberal state
committed to the tenet of cultural pluralism based on individual rights
(Kymlicka 1995b: paper 4). In this respect, Taylor has distinguished two kinds
of liberalism: one that advocates the cultural and religious neutrality of the state
and is strictly devoted to protecting individual rights; and another that, allows
for a state dedicated to the promotion of a particular cultural, religious or
national project (Taylor 1994). The first typically corresponds to the self-image
bolstered by the United States as a society of immigrants with no significant
ethno-territorial identities. On the contrary, societies with strong collective
goals, such as Quebec, clearly fit into the second category.
American-style liberalism allows little space for state-run cultural matters.
Inescapable cultural choices, like the language of instruction or bureaucracy,
are presented as simply instrumental. Allegiance to the constitution is viewed
as the primary source of collective identity. Although not devoid of cultural or
religious projects, this model belongs to civil society and the cultural market
place. State institutions are thought and designed to protect the individual’s
autonomy, not to achieve communal goals. Provided that fundamental liberties
and respect for diversity are granted, Taylor sustains that liberal societies can
also be organized around a certain definition of the “good life.” Shared
definitions of the good life are nevertheless difficult in modern, complex
societies: political self-government, and not only cultural survival, are the
declared goals of Quebec nationalism, and views on how to define and relate
both differ. In any event, as far as cultural pluralism is concerned, Quebec’s
policy clearly subordinates the demands for cultural recognition made by its
minorities to the affirmation of its own national project.
Canada’s federal multicultural policy probably accommodates both kinds of
liberalism. Unlike the United States, the Canadian commitment to citizenship
rights is particularly sensitive to the cultural background of individual
identities as a condition for proper social integration. Cultural policies are
therefore publicly funded and constitutionally recognized. On the other hand,
the Canadian state does not endorse, like Quebec, a strong cultural narrative as
the core for the organization of political life. Rather, its confessed aim is to
manage cultural diversity within a politically recognizable framework of
solidarity. Ethno-territorial groups competing for autonomy within the same
state boundaries can hardly be reconciled to this sort of arrangement. The
difficulty here lies in the institutions that articulate the exercise of this
autonomy: they are mainly expressed as political and territorial demands for
self-government, not just for cultural autonomy. Liberal theory was
constructed around the limits of state power in relation to the citizens, their
rights and duties, but it gives no clue about their cultural identity. Citizens and
nations were to be created so that liberal democracy could work.
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Patterns of Belonging: Culture, Nationhood and Citizenship
The regulation of national membership is one of the last realms of sovereignty
of the nation-state. The status of citizenship not only regulates physical access
to the state territory, but also allows access to its social services, political
liberties and legal duties. Citizenship is hence a group-specific concept as much
as a closure device (Brubaker 1992: 22). From this perspective, the link
between social rights and nation-building as described by Marshall and Rokkan
has proved true, if not as an historical sequence, certainly as the political
framework that has made those rights possible. Whereas the principles of
distributive justice embodied in welfare state schemes do not respond to freemarket
standards, they cannot necessarily be universally applied. Indeed, they
are sustainable only on a membership basis: a distinction between those who
belong to a common social framework and those who do not. Sheer utilitarian
strategies alone cannot explain how welfare states have been possible (Baldwin
1990). Welfare policies must be rooted in a general expectation of mutual
advantage and in a reasonable commitment to reciprocal sacrifice. Such
expectations are more likely to grow out of a sense of common belonging. So
far, this particular sense of belonging has been mainly understood in terms of
national membership. The attendant sense of belonging has been described by
functionalist sociology as the diffuse enduring solidarity that pervades a
societal community:
The social community presumes a relatively definable population of
membership which at this level we ordinarily call citizens for the
modern case. [It] presumes as well that the collective organization of
reference is politically organized on a territorial basis and...atsome
level it is characterized by a common cultural tradition (Parsons 1975:
59).
Solidarity in this sense does not suggest a moral virtue possessed by all
members of a community. According to Parsons, diffuse solidarity relies less
on individual attitudes than on a “cultural structure” entailing a common
language, a cultural history and the perception of a shared future (Parsons 1975:
60). However, the political relevance of ethnocultural identity as we currently
know it is a specific product of modern history. Unlike feudalism, modern
territorially-centered political models involve a significant degree of state
intervention in society. The present pressure for cultural homogeneity arises
from the bureaucratic, legal and military instruments required by the modern
state and from the long-reaching effects of a market economy based on labour
mobility, communication networks and technological change (Gellner 1983).
As is known, the historical relation between state-making and nation-building
is a debated one (Connor 1972). The crucial issue is whether the first process
requires the latter, particularly when it means creating a unified territorial
nation out of the multiple existing ethnies and their homelands. This is precisely
the thesis of Anthony D. Smith, an outspoken defender of the ethnic origin of
modern nations:
If political leaders wish to create states and form nations under the
appropriate social and technological conditions, they can only do so if
the ethnic conditions are similarly favourable; and the more
appropriate those ethnic conditions are, the more likely are they to
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Dimensions of Citizenship
succeed in creating both states and nations. Conversely, the absence
of such conditions creates a serious barrier to state-and-nationformation.
Not only does it remove the basis of cohesion for political
unities, it also creates visual bases for alternative unities and the
chances of breakdowns of ethnically divided polities (Smith 1986:
244-45).
Following this assumption, three state schemes can be brought into
consideration. In the first place, we have what Smith has labelled the immigrant
state model (Smith 1986: 258). This is the case of immigration countries built
upon a weak ethnic core. Their basic cultural patterns were originally defined
by the oldest ethnic group in the country, since it held political control of the
territory at the moment of independence. Examples include the United States,
Australia, Brazil or Argentina. The British conquest of Nouvelle France
probably prevented the French settlers in North America from creating a
similar state of their own. What Smith calls the autonomist state model offers a
different response to ethnic complexity. This model seeks to create a dual
regional- national identity within a unitary sovereign state by granting a limited
degree of institutional autonomy to ethnic groups that demand it. Spain would
fit well into this model, since its political decentralization during the
democratic transition was mainly a reaction to Basque and Catalan
nationalism. Finally, the granting of territorial and cultural autonomy is sought
by the federal- national state in a more radical way. This model confers explicit
constitutional and political recognition of nationhood on the different ethnoterritorial
groups comprised in its domain. Stability here, however, seems to be
a difficult goal to achieve. Ironically, Smith considered Yugoslavia as a
“promising model” for the resolution of national conflicts when he wrote his
book. Belgium and the former Soviet Union, with their tortuous though
radically different experiences, seem to be making headway toward this model.
Canada, insofar as the issue of asymmetric federalism and Quebec’s “distinct
society” status are unresolved, can be considered to sway unstably between the
second and the third alternatives.
This sketch by no means pretends to exhaust the variety of possible political
responses to ethnic complexity. Instead, it offers an overview of the different
ways in which cultural and political identities can be assembled into a common
polity. Citizenship, both as a status and as the set of rights attached to it, is one of
the main principles regulating ethnic affiliation and state membership in every
country. It is probably true that citizenship has lost part of its former value as
social and civil rights have been extended to immigrant populations in many
Western states (Schuck 1989, Hammar 1990). The more extended a social good
is, the more difficult it seems to legitimize the exclusion of a part of the people
from it. The Canadian Charter of Rights, for instance, deliberately left as
citizens’ privileges the right to vote, to receive diplomatic protection abroad
and to choose the linguistic-educational model for their children.
This circumstance has led some authors to announce the emergence of a new
post-national pattern of state membership in which individual rights are
legitimized on the basis of personhood, not of citizenship (Soysal 1994). Even
if it is true that legal residence has partially displaced the role of citizenship in
regulating social membership and that state sovereignty has been notably
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eroded, the nation-state still rules over admission to the country, the granting of
permanent residence and the naturalization procedures. Unless dual citizenship
is permitted, immigrants usually have to prove somewhat stronger allegiance to
their new country than to their country of origin. Under these conditions
naturalization is not always an easy decision:
Changing citizenship is the final stage in the migration process. It
means giving up plans or dreams to return to the country of origin. It
involves abandoning the loyalties of one’s formative years and
showing that one’s loyalties lie with the new country (Layton-Henry
1991: 117).
Integration models are an increasingly politicized issue in Western societies.
Whereas in former periods, one-directional assimilation was expected of
immigrants, demands for multiculturalism or for pluralistic integration are now
growing stronger. These demands are often censured as evidence of their
disaffection for their host country. Hence, the fate of multicultural policies
largely depends on the political ability of the immigrant groups to defend their
specific interests. Exclusively concerned at the beginning with housing and
working conditions, their demands have gradually adopted the language of
identity politics. However, identity claims here need not be simply understood
in culturalistic terms. They are often a way of expressing their specific social
needs and a means to enter the political sphere of their host countries. The
integration of immigrants partially reverses once more Marshall’s imagined
sequence: civil rights were in this case the first to be granted; economic and
social rights were generally conferred to immigrants and citizens at the same
time; and although political rights are still an open question, some European
countries already allow immigrants to vote in local elections.
The immigrant condition and the circumstances surrounding the acquisition of
citizenship may help to illuminate the different incorporation strategies and
organizational designs deployed by the states in order to regulate societal life.
Multicultural policies in particular make sense only if the host state is clearly
willing to incorporate immigrants as permanent members of the polity. As long
as they continue to be regarded as “guest workers,” integration policies are out
of the question. Ethnicity plays a different role in the way every country
understands the meaning of its own citizenship. In fact, cultural and political
elements can probably combine in as many models of citizenship as there are
states. Considering that relationship in abstract terms, as “ideal types” in the
sense of Max Weber, we can distinguish at least four patterns of citizenship.
French citizenship has been traditionally presented as a paradigm of cultural
assimilation. It corresponds to a pattern that we could call republican
citizenship, since the French patriots stressed the egalitarian, universalist and
unitary character of citizenship during the revolution mainly for political
reasons. They strove to build a homogeneous and solidary community of
citizens around the myth of a general will, not to promote a particular ethnic
affiliation. Since French statehood was a consolidated reality at the moment of
revolution, the proclamation of national sovereignty as unitary and indivisible
could be interpreted at once as a political feat and as the basis of French national
identity. Hence, the cultural dimension of this identity reflected a common
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Dimensions of Citizenship
political commitment toward the future. Local dialects and regional diversity
subsisted under the republican surface. Cultural assimilation only took place
during the Third Republic, due to the wave of nationalism prompted by the
defeat in the Franco-Prussian war. Army conscription and public schooling
worked hand in hand as a formidable social agency that set out to transform both
the peasantry and the children of immigrants into Frenchmen (Weber 1976).
American statehood and citizenship are unfamiliar with the myth of a unitary
and indivisible national sovereignty. Its constitutional structure is built upon
the opposite principle: the dispersal of political power. American civic culture
is also considered to rely on the values of individualism, egalitarianism,
democracy, nationalism and tolerance for diversity (Karst 1989: 31). Its idea of
citizenship can be best defined as a liberal one. These views are largely a
product of the American revolution. In the aftermath of the War of
Independence, American patriots opted for a voluntary, conditional and
institutional concept of citizenship. American national ideology included,
however, other values that are nowadays unacceptable, like Protestant
domination and white supremacy. For instance, the Dred Scott judicial decision
in 1857 stated that freed slaves did not qualify for citizenship, while Black
segregation has traditionally coexisted with official discourse on the
universalist character of American identity. The self-image of American
citizenship was nonetheless built upon the idea that it exclusively consists of an
act of political allegiance:
To be or become an American [at the time of Independence], a person
did not have to be of any particular national, linguistic, religious, or
ethnic background. All he had to do was to commit himself to the
political ideology centered on the abstract ideals of liberty, equality,
and republicanism (Gleason 1982: 62).
American national citizenship did not consolidate until the Fourteenth
Amendment was issued after the War of Secession. Since then, American
society has had to develop an internal differentiation between the diverging
characteristics of its political institutions and its civic organizations. American
civil society is a collection of interest-groups, many of them defined by
ethnocultural patterns. On the contrary, the American state is a neutral
institution for the protection of the citizens individual rights (Walzer 1992).
Given that the state institutions are universalist by constitutional mandate, they
cannot assume the ethnic or cultural character of any of these groups. Ethnic
and religious affiliations in the United States belong to the private sphere or to
the civil society, not to the state.
Ethnocultural citizenship presents altogether a different case. Ethnic affiliation
and state membership are here one and the same thing. The German idea of
citizenship fits well into this category. German national consciousness was first
imagined in a romantic sense, as Volksgeist, by a literary elite. Politically it
emerged as a reaction against Napoleonic expansionism at the beginning of the
nineteenth century. Unlike French or American national identities, German
identity did not dispose of the state instruments required to assemble its
political and cultural dimensions into a single national citizenship. German
national union, as proposed by the German Assembly at the Paulskirche in
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Frankfurt in 1848, was compelled to choose between the Austrian and the
Prussian alternatives, both of which were incomplete. Either some German
territories were left out of the German nation-state (the Kleindeutsche option)
or foreign peoples had to be included in it (the Grossdeutsche option). The idea
of a German citizenship therefore had to undergo a difficult process of change
during which it assumed a clear ethnocultural affiliation.
The first code of German state membership dates back from 1842 (Brubaker
1992). This was rather a regulation of Prussian subjecthood, not of German
citizenship. The latter would be the result of Prussia’s efforts to become a
nation-state. Jus sanguinis only consolidated as the chief principle of German
citizenship law in 1913, under the influence of the pan-germanic nationalism
pervading the Reich. This idea of citizenship was intended to protect the
Auslandsdeutsche in Eastern Europe and in the Baltic region and to seclude
German identity within the Reich against the Volksfremde, Jewish and Polish
immigrants mainly. As a result, German citizenship and nationhood have
merged ever since in an ethnocultural pattern which constructs the German
nation as a community of descent. This view is also common to Jewish identity,
particularly since the state of Israel was created (Kraines 1976), and embodies
the kind of political narrative that has traditionally appealed to the imagination
of the “stateless nations.”
The attempt to reconcile the ideas of cultural autonomy and political
community into a single membership status introduces a new variety of
citizenship that, for our purpose, we can call multicultural (Kymlicka 1995a).
This sort of citizenship tries to detach itself from any single ethnocultural
affiliation while promoting the individual’s freedom to choose his/her own
cultural allegiances. The Canadian notion of citizenship, though unstable and
subject to constant revision, can be said to reflect some of these features.
Canada is not the only country to have embraced the multicultural ideology as
an official doctrine and policy. Australia, and to a lesser extent, New Zealand
and Sweden, have done the same (Hawkins 1982, Foster and Stockley 1984,
Castles 1988, Alund and Schierup 1991). Multiculturalism here does not imply
an accomplished social and political reality, but a public discourse and a moral
commitment with cultural autonomy as a legitimate goal for integration
policies:
Multiculturalism is now an integral part of contemporary...politics.
In some places it has become the legitimate official political ideology,
acknowledging the cultural heritage and permanence of ethnic
groups. Elsewhere multiculturalism has become an oppositional
position claiming the immigrants’ and ethnic minorities’ rights to
cultural autonomy (Alund and Schierup 1991: 1).
The doctrine of cultural pluralism, as vindicated by Horace Kallen for America,
“postulates the parity of the different and their free and friendly communication
with one another as both co-operators and competitors; it postulates that every
individual, every society, thus realizes its own being more freely and
abundantly than it can by segregation and isolation and struggle to go it alone”
(Kallen 1956: 98). Of course, this postulation must not be naively assumed. The
effect of any multicultural ideology in a given society depends on its power
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Dimensions of Citizenship
structure and on the terms of exchange between the different social groupings.
Whereas cultural heterogeneity as such in a free-market, liberal society can
develop a “vertical mosaic” (Porter 1968), i.e., an ethnocultural hierarchy in the
social division of labour, state management of ethnocultural categories can
confine immigrant cultures to the status of preserved and controlled
reservations. An unavoidable by-product of multicultural policies is the
culturalization of political language. Strategies of domination and conflicts of
interest can be worded in ethnic terms and can displace or disguise more general
social cleavages.
Conclusion
All of the citizenship patterns considered are compatible with the democratic
ideal. Each has its own basis of legitimacy and reflects a different historical
experience. Though exhibiting a distinctive relationship between their ethnic
and political dimensions, their inner stability depends mainly on their skill in
balancing the opposing social forces around them. Because of its particular
history, Canada was one of the first democratic countries to include cultural
rights in its constitutional and nation-building agenda. As is now obvious, its
results have been inconclusive. The last thirty years have witnessed the
evolution of the old French-Canadian identity into a new territorial Québécois
identity that threatens to break the political community. On the other hand, the
so-called “English Canada” seems trapped in an existential identity crisis that
may last as long as the Quebec issue remains unresolved.
Obviously, the future of Canadian citizenship depends on the outcome of this
crisis. The ethnocultural cleavage that once prompted the emergence of
multicultural policies will most probably work against them if this cleavage
finally breaks. It is disputable that multicultural citizenship would survive the
splitting up of the country. An independent Quebec would most probably adopt
a decidedly ethnolinguistic approach to its new citizenship. While Angloconformity
might be difficult to restore in the rest of Canada, a temptation
might arise to switch to an American-inspired form of liberal citizenship. After
all, surveys show that immigrant ethnic identity usually dissolves in the third
generation (Helly 1996). What certainly seems to be fading is the dream of
using multicultural citizenship as a lever for reshaping Canada into a culturally
plural nation-state endowed with symmetric federal structures. The reason is
not only to be found in the challenge of Quebec’s national ambitions to a pan-
Canadian multicultural citizenship, but in the growing disaffection facing
multiculturalism itself in the rest of Canada. Not only are the major Canadian
parties reviewing their attitude toward this issue, but popular platforms like the
Citizens’ Forum have also expressed their concern for the effect of
multiculturalism on Canadian social unity. Last but not least, it is significant
that the Charlottetown agreement did not even mention the multicultural issue
(Helly 1996).
Some authors have suggested that Canada’s reformulation as a multi-nation
federal state is a possible way out of the present stalemate (Kymlicka 1995b:
paper 5). This would imply introducing some sort of asymmetry into the federal
and constitutional designs. The concept of political equality should be detached
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then from the idea of a multicultural, pan-Canadian citizenship and of a
procedural constitution neutral to the issue of national identities. In order to
make this alternative feasible, English-speaking Canadians should be
convinced of their common interests as a linguistic community and that some
sort of asymmetry would more fairly accommodate those interests. Not an easy
task to fulfil, since the absence of a real threat to their cultural survival has
prevented Anglophone Canadians from viewing language as a reference for
their political identity. In any event, the multi-nation option would bring
Canada to a new stage in the tortuous process of soul-searching to define the
nature of its citizenship: multicultural citizenship should be probably replaced
by some sort of multi-nation federal citizenship and cultural rights readjusted to
a more territorially-centered scheme.
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Connor, W., 1972. “Nation-building or Nation-destroying?” World Politics 24 (April): 319-355.
Fleras, A. and Elliott, J.L., 1992. Multiculturalism in Canada. Scarborough, Nelson Canada.
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Clevendon, Multilingual Matters.
Fulford, R., 1993. “A Post-Modern Dominion: The Changing Nature of Canadian Citizenship,” in
W.K. Kaplan Belonging: The Meaning and Future of Canadian Citizenship: 104-122.
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Greene, I., 1989. The Charter of Rights. Toronto, Lorimer & Co.
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Hawkins, F., 1982. “Multiculturalism in Two Countries: The Canadian and Australian
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1990,” in J.W. Berry and J.A. Laponce (eds.) Ethnicity and Culture in Canada. Toronto,
University of Toronto Press: 81-123.
———, 1996. “Le multiculturalisme canadien: 1971-1995,” in Hommes et Migrations, 1200
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Kallen, H., 1956. Cultural Pluralism and the American Idea. Philadelphia, University of
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Kallen, E., 1982. “Multiculturalism: Ideology, Policy and Reality.” Journal of Canadian Studies
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Kaplan, W.K. (ed.), 1993. Belonging: The Meaning and Future of Canadian Citizenship.
Montreal-Kingston, McGill-Queen’s University Press.
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———. Accommodating Ethnocultural Diversity in Canada. Forthcoming.
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Kingston, McGill-Queen’s University Press: 313-332.
Layton-Henry, Z., 1991. “Citizenship and Migrant Workers in Western Europe,” in U. Vogel and
M. Moran (eds.) The Frontier of Citizenship. New York, St. Martin’s Press: 107-124.
Marshall, T.H., 1950. Citizenship and Social Class. Cambridge, Cambridge University Press.
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109

Jane Jenson and Susan D. Phillips
Regime Shift: New Citizenship
Practices in Canada*
Abstract
As Canada restructures its economy and redefines the relationships between
state and market, it is also restructuring citizens’ relationship with the state.
This paper analyses the transformation of the citizenship regime, with
particular attention to changes in access to and representation within the
state. It begins by outlining the principles that underpinned the postwar
citizenship regime and how they were constructed. It then examines the major
manifestations of the regime shift, including: institutional changes that have
removed advocates for certain categories of citizens, especially women, from
within the state; the diminished capacity and credibility of public interest
groups in gaining access to the state; and the definition of government
through service delivery partnerships.
Résumé
Au moment même où le Canada réorganise son économie et redéfinit les
relations entre l’État et le marché, il revoit du même coup les liens entre les
citoyens et le gouvernement fédéral. Le présent article analyse la
transformation que subit le régime de citoyenneté, particulièrement les
modifications touchant l’accès aux programmes fédéraux et la représentation
au sein de ces programmes. Les auteures y résument d’abord les principes de
base du régime de citoyenneté né après la guerre et la façon dont ces
principes ont été établis. Elles examinent ensuite les principales
manifestations de la transformation du régime, à savoir : les changements au
sein des établissements qui ont éliminé de la fonction publique les porteparole
de certaines catégories de citoyens (en particulier les femmes); la
diminution de la capacité et de la crédibilité des groupes d’intérêt public au
chapitre de l’accès à l’État; et la nouvelle définition du gouvernement par
l’intermédiaire de partenariats de prestation des services.
[T]here are times in the progress of a people when
fundamental challenges must be faced, fundamental
choices made—a new course charted.
For Canada, this is one of those times. 1
So began the 1995 budget speech by Canada’s Minister of Finance who
promised that his budget would achieve “the very redefinition of government
itself.” 2 While such rhetoric is not uncommon among politicians, the Liberal
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IJCS / RIÉC
government—following the course charted by its Conservative predecessors
and aided by other forces in Canadian society—may achieve more fundamental
reform than even the Minister of Finance envisaged in his speech. A series of
major changes have already been initiated. Institutions, including cabinet, have
been restructured and reduced in size. Parapublic bodies that once provided
external advice or represented the concerns of vitally important categories of
citizens have been eliminated. Government’s relationship with the third sector
has been rethought and interest group funding reduced substantially. While all
of these measures could be understood in the context of fiscal restraint as
independentattemptsatcost-cutting,suchanexplanationwouldbetoosimple.
These recent reform measures are neither isolated events nor merely budget
reduction exercises. Rather, they form a pattern that marks a major effort by the
state to reconfigure Canada’s postwar citizenship regime. As Canada
restructures its economy as well as the basic relationships between the state and
the market, between the national and the international, and among parts of the
state, it is also restructuring citizenship. In essence, the relationship between
the state and civil society, and in particular, the forms of legitimate
representation, are being reformulated.
By the mid-1970s Canada’s postwar citizenship regime had evolved to include
both country-wide institutions which addressed citizens as individuals and
programmatic acknowledgement of intermediary groups which recognized
and represented particular categories of citizens. This regime recognized both
individual and collective rights of citizenship. It accepted the legitimacy of
participation by the intermediary associations of civil society in the
representation of interests. The construction of this regime was a long-term
project, beginning in the war years and reaching its most elaborate form in the
Charter of Rights and Freedoms which was embedded in the Constitution
during the 1982 round of reforms. 3 The regime was institutionalized in a variety
of ways, most obviously in the Constitution and attendant documents such as
the Citizenship Act. But the state bureaucracy, parapublic advisory bodies,
federalism and institutions of representation, especially the federal party
system, all made important discursive and practical contributions to this
regime.
In the 1990s, this old regime is being dismantled piece by piece and the
scaffolding of what might replace it gradually emerges, although its eventual
form is not yet completely identifiable. What is evident is that forms of access to
and representation of interests within the state are changing fundamentally.
Who qualifies and is recognized as a model citizen is under challenge. The
legitimacy of group action and the desire for social justice are losing ground to
the notion that citizens and interests can compete equally in the political
marketplace of ideas. In the process, a new, individualized identity for citizens
is emerging. Support for this emerging identity exists within civil society as
well as the state, although, of course, the social forces to which it appeals differ
from those which still support the terms of the postwar regime.
This paper examines the transformation of the citizenship regime, with
particular attention to the shifts in thinking about social justice which
underpinned the postwar social and economic rights of citizenship, and about
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Regime Shift: New Citizenship Practices in Canada
access to the state, which has always been a fundamental manifestation of
political rights to representation.
Citizenship Regimes: Construction and Dismantling
The work of historical sociologists, from Marshall’s writings at the end of
World War II to the recent “explosion of interest” described by Kymlicka and
Norman (1994: p. 352), teaches that citizenship is a social construction. As
such, it varies across not only in space but also time. New rights are won, new
groups gain access and definitions of community alter over time. Organizing
and legitimizing principles can break with one model and give rise to a quite
different conceptualization. 4 The question remains why and when does
citizenship change.
This paper argues that citizenship regimes exist as the concretization in a
particular place of a general model of citizenship. Each regime is forged out of
the political circumstances of a national state. 5 Being a regime, citizenship does
not alter quickly or even easily. Nonetheless, it does change at moments of
economic and political turbulence. In such moments of fundamental
restructuring of the role of the state, the division of labour between state and
market, between public and “private,” and between civil society and the state
are re-opened for discussion. Citizenship regimes also come under pressure at
such times precisely because they are a crucial component of the model of
development which, prior to the turbulent moment, had ordered social
relations. When the model of development enters crisis, so does the citizenship
regime embedded within it. 6
A stable regime is one in which the status proffered matches the status
anticipated, so that the representation of citizens by the state accommodates
citizens’ representations of themselves. In the post-1945 regimes of much of
Western Europe, for example, such a match existed. The model of development
was “social democratized.” Representation was organized around and by classbased
and class-identified actors. The politics of production ordered the
meaning and practices of the social democratic Nordic countries as well as the
corporatist countries of continental Europe. Social rights accrued to the model
citizen who was in most countries the waged male worker, and the rights of
other categories existed as a declension of the primary form. Thus, for example,
pensions were for “old” workers; unemployment benefits went to the “out of
work;” education and training was directed to “young and potential workers.”
Activities unrelated to paid labour (childbearing and rearing, for example)
were either dealt with in a separate—and inferior—program or treated as
benefits for “families of workers.” This regime reached a crisis when it could no
longer accommodate all of the contradictions which arose as it became
increasingly difficult to defend the waged male worker as a citizenship norm.
Both economic restructuring and the claims of new groups for recognition
contributed to the appearance of a mismatch between representations to the
state and representations by the state. The citizenship regime was caught up in
the fundamental restructuring of the last two decades, and, in turn, has been
fundamentally altered.
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The outcome of these struggles for new rights, identities and access are never
given in advance, of course. 7 Only the cumulation of case study material can
inform us about the solidification of likely general patterns. As a contribution to
this enterprise, this paper presents an analysis of the Canadian experience in
deconstructing postwar routes of representation. The result is not only new
forms of access but also new forms of recognition of citizens.
Recognizing Citizens
At its most general, citizenship establishes a system of inclusion and exclusion.
It defines boundaries, recognizing the citizenship status of the included and
denying the same to the excluded. This notion of inside/outside leads directly to
a further specification of two dimensions of the concept: citizenship as the
conferring of rights and citizenship as grounding for feelings of identification
with a particular community (Kymlicka and Norman, 1994: 352). Some studies
of citizenship have made inclusion and exclusion correspond to the political
border of nationality (the citizen of a country). 8 But boundaries have never been
confined to national frontiers; internal borders have always separated the full
citizen—the person entitled to full rights—from the national with limited
rights—a sort of “second-class citizen.” 9 Attention to internal distinctions
clearly shows that schemas of recognition of citizens are important.
Much analysis of the identity dimension of citizenship proceeds from the
relatively unproblematized assumption that citizenship practice generates a
sense of community loyalty among those grateful to be included. Indeed, since
the 19th century many have assumed that an extension of the political
rights—and even more so the social rights—of citizenship would calm the
revolutionary fervour of the working class. In this conceptualization we see that
the arrow of causality points from rights to identity: having access to rights will
create a feeling of belonging. 10
Such a formulation fails to address the content of citizens’ identity. How does
one recognize a citizen? What does a model citizen look like under each
citizenship regime? What is the model relationship between citizens and the
state? The silence around such questions undoubtedly results from three
tendencies: to see citizenship as part of nation-building, and therefore to
assume that a “national” identity results from the extension of rights; to take the
“universalist” claims of citizenship discourse for reality, without realizing that
“second-class” citizens may exist; and to have a “society-centric” theory of the
state, which does not attribute an “interest of state” to particular representations
of citizens’ identities. 11 Once we realize that citizenship involves a lot more
than the boundary between nationals and non-nationals, that distinctions
among citizens may exist, and that state institutions engage in the politics of
recognition, then we must begin to ask when the state will alter its
representation of its citizens and when citizens’ claims-making will change.
This paper proceeds from this perspective. It demonstrates that state
institutions consciously as well as inadvertently engage in politics of
recognition which contribute to stabilizing or altering the citizenship regime.
Some roots of these politics can be found within the state by assessing its
discourses and practices related to citizens’ rights and access. As it defines
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rights or grants access, the state simultaneously engages in representing
citizens to themselves.
State institutions never have the power to establish these identities, however.
Claims for recognition arise within civil society, often in the form of demands
to change power relations. The state may choose to recognize some claims, and
thereby to shore up some identities, but the identity remains the property of the
claimant, a creation of collective action. 12
In Canada, and in many other countries, the citizenship regime is in crisis, being
restructured under pressure, as state and non-state actors seek to make sense of
the world conditions now confronting them, far removed from T.H. Marshall’s
world of the completion of the tryptic of rights or from the world of social
movement politics seeking differentiated citizenship. More than a decade of
politics driven by a neo-conservative agenda has resulted in new definitions of
marketized and individualized citizenship.
Canada’s Postwar Citizenship Regime
The Canadian postwar citizenship regime was an integral part of the postwar
model of development. Like those of many other industrialized countries,
Canada’s model was unusually permeable and open to the effects of the
international economy, and less social-democratized than many European
citizenship regimes (Jenson, 1989). Its form was owed to a shift in power
relations between the federal and provincial governments. The fiscal crises
which struck the provinces in the 1930s as well as the needs of wartime
mobilization enabled the federal level to accumulate much more authority to
direct the Canadian economy and society than it had previously. This
governmenmt shaped Canada’s welfare state, extending the citizenship regime
and incorporating new social rights in two waves: one at its beginnings in the
1940s and the other in the 1960s. 13
The legal concept of Canadian citizenship established in the 1946 Citizenship
Act coincided with the first years of the postwar model of development. In all
countries, the economic, political and social elements of this general model of
evelopment often began to emerge and certainly to solidify during World War
II. As Charles Tilly (1992) has documented, state-building and war have
historically gone hand-in-hand. Canada in the 1940s was no exception. The
turbulence of wartime political and economic conditions gave impetus to the
creation of a citizenship discourse which would inform the citizenship regime
for the next four decades (Bourque and Duchastel, 1996, Chapter 1).
Wartime fears about the loyalty of immigrants from combattant countries as
well as the need to mobilize support for the war effort among those not in the
armed forces laid the groundwork for the state institution that became the
citizenship branch. This branch was housed in various departments, but came
eventually to reside in Secretary of State. In 1944, the new citizenship branch
was given a grab-bag of responsibilities, including the promotion of women’s
participation in the war effort and “fitness programs, incorporating folk
dancing.” The keystone, however, was a citizenship training program (Pal,
1993: 75-76).
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In the postwar years, concerns about identity replaced concerns about loyalty.
In introducing the Citizenship Act, the Secretary of State said that the bill would
“provide an underlying community of status for all our people in this country
that will bind them together as Canadians” (Pal, 1993: 79). But the state did not
have exclusive responsibility for fostering this identity or even organizing
training for citizenship. It was to be shared, indeed, “contracted out.” As early
as 1951, the branch was providing funds to voluntary organizations for
programs in the area of citizenship (Pal, 1993: 85).
Such sharing of responsibility was a logical outcome of the branch’s vision of
society. Pal’s (1993: 85-86) description is noteworthy:
The [Citizenship] branch repeatedly made it clear that its concept of
citizenship hinged on a pan-Canadianism that treasured some
common “Canadian” history, had expunged any lingering prejudices,
and was soberly aware of its responsibilities. ...thebranch in fact
operated with a quaintly organic view of society: its mission was to
help groups weld together individuals in a common community
cognizantofitsdutytosupportresponsible,democraticgovernment.
Thus, the principles underpinning the postwar citizenship regime were not
simply liberal, although liberalism was clearly important. Accompanying
Canada’s liberalism was a notion of collective responsibility, and the state was
the expression and guarantor of this collectivity. 14 The citizen identity being
nurtured was also clearly a national one, and accordingly matched that fostered
by other institutions. Indeed, the societal vision of citizenship informed many
more state institutions than simply one branch. A pan-Canadian party system
was being created for the first time (Smith, 1988). The notion of a “national”
culture, distinguished from that of the imperial centre(s) and defensible in its
own right, was identified in the Massey Commission on the Arts in the early
1950s. Economic institutions were creating a country-wide labour market and
consumer society. And, the state was extending pan-Canadian social and
economic rights of citizenship, several of which established a direct link
between individuals and the federal government.
That government entered into a relationship with each Canadian via several
important new social programs. Cheques came from the federal government
for family allowances and pensions. Unemployment Insurance was a countrywide
program; the unemployed picked up their benefits at a federal office,
whether they stayed home in the Maritimes or “went down the road” to
Ontario. 15 Thus, for the first time, the vision of individual Canadians linked by
a set of national institutions made everyday sense. 16 Pan-Canadianism also
underpinned the equalization payments instituted in the 1950s as
intergovernmental transfers. They set national standards for the provinces’ per
capita incomes. 17 The notion grew that all Canadians should have basic
services, whether they lived in wealthy Toronto or poverty-stricken
Newfoundland.
The 1960s brought a second-wave of social program expansion. While
Canada’s welfare state was never very generous and remained firmly in
Esping-Andersen’s (1990) liberal category, the social benefits of Canadian
citizens became even more distinct from those available in the USA in these
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Regime Shift: New Citizenship Practices in Canada
years (Noël et al., 1993: pp. 185-86). Equity and social justice discourse
influenced proposals for everything from party financing reform to health care
(Maioni, 1994).
A wide variety of institutions also shared a conceptualization of how citizens
should gain access to the state. Individuals were not the primary actors in this
vision; organizations were. In the 1940s and again in the 1960s, trade unions
grew in size and gained collective bargaining rights to represent their members
in dealings with bosses and the state. Parties changed shape, developing more
elaborate internal machinery for selecting leaders and discussing policy.
Indeed, the New Democratic Party was created in the 1960s partly to represent
workers’ organizations as well as individuals, an undertaking its predecessor
had never managed. The Québécois nationalist movement spawned parties and
associations beginning in the early 1960s and was soon joined by organizations
of the English-Canadian nationalist movement and then the Aboriginal
nationalist movement, all designed to represent a political position to the state.
Women in Quebec established a large umbrella federation in 1964 and both
Anglophone and Francophone women founded the Voice of Women early in
the 1960s to work for peace and oppose nuclear weapons.
Concerns about “Canadian” identity flowered. In part, but only in part, this was
because Québécois nationalists challenged the rest of Canada to decide what
difference the presence of two language groups made to the country’s
definition of self. Obviously, one effect of this challenge was to produce both
the Official Languages Act (1969) and the multiculturalism policy (1971), and
to breathe new life into the citizenship branch of Secretary of State, which
gained responsibility for multicultural programs and for official language
minority groups.
The challenge extended beyond language, however. The strategy of Quebec
nationalists was to use the state to achieve their development project, in
particular to build a sophisticated, secular and above all activist state with the
capacity to catapult Québécois society into modernity. A central element of this
construction was to withdraw responsibility for health and education from
religious institutions and to develop an array of social programs with which
French-speaking Québécois could identify. Thus, the completion of the
Canadian welfare state became both a response to the initiatives coming from
Quebec and a reflection of strengthened social justice discourse overlaid with
nation-building motives. Matters of equity were now also matters of national
identity.
A similar blending of themes of fairness and national identity characterized the
English-Canadian nationalist movement which arose in the 1960s. Warnings
came from both left and right that Canada risked losing its sovereignty and its
identity because of the growing influence of the US in the country’s economic
and cultural affairs (Grant, 1963; Taylor, 1970). Only a state actively pursuing
an economic strategy to promote Canadian culture, Canadian ownership and
Canadian distinctiveness, including its social programs could fend off the
threat to its cultural, economic and political autonomy.
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Nationalist movements promoted these themes in civil society. But this
discourse also permeated the state. One entry point was the various
commissions studying Canada’s future. Here the Royal Commission on
Bilingualism and Biculturalism was an important source of new ideas not only
about relations between English and French, but also multiculturalism. The
Watkins Report in the 1960s—a founding document for economic nationalists
—was the direct heir of the Royal Commission headed by Walter Gordon
which, in the mid-1950s, had sounded the alarm about foreign investment. The
revival of social democracy in the founding of the NDP in 1961 pushed the
Liberals to think about their political flank. The progressive discourse of social
justice and social engineering gained a foothold in the Liberal party.
This discourse of social justice accompanied a boom in state support for
intermediary organizations which might represent citizens to and in the state.
Reform of the electoral system and party financing was prompted by the goal of
assuring equitable treatment of parties by the media and by the recognition that
resources were not evenly distributed among social groups. Therefore, the
electoral law of 1974 recognized political parties, then proceeded to regulate
their access to the media, limit their campaign expenditures to prevent the
richest parties and candidates from overwhelming the less well-endowed, and
provide public funding for their campaigns (Paltiel, 1970). From 1969 to 1985,
a succession of parliamentarians from both sides of the House of Commons
presented private members bills designed to regulate the conduct of
professional lobbyists, ultimately succeeding in the enactment of the
Registration of Lobbyists Act in 1987 (Pross and Stewart, 1993: 112-14).
The practice of supplying public funding to advocacy groups was common
among federal government departments, providing recognition to groups
which the state deemed worthy. Indeed, this may comprise one of the
distinctive characteristics of Canada’s citizenship regime (Phillips, 1991: pp.
196-97). The activities of the citizenship branch of the Secretary of State
provide one example here. That agency amplified its activities in the early years
of the 1970s. It extended its funding of associations which organized groups
whose identity the state sought to affirm, particularly multicultural groups and
official language minorities. But the Department also provided support in the
form of both core and project funding to groups representing the socially
disadvantaged, with women and Aboriginal groups, as well as certain social
action groups, being prime examples. As Bernard Ostry, a former Assistant
Under Secretary in charge of citizenship said, the goal of the branch was to
“develop and strengthen a sense of Canadian citizenship, chiefly through
programs that would aid participation and assuage feelings of social injustice”
(quoted in Pal, 1993: p. 109).
To summarize the postwar citizenship regime, we could say the following.
Democracy and the realization of the political rights of citizenship seemed to
require both the regulation of and state support for basic institutions that were
supposed to provide citizens with access to elites. Some efforts aimed to foster
more equitable access to political power and the state via public funding for
electoral and lobbying activity, and some limits were set on the political power
of those most endowed with political resources. Achieving social justice and
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equity were legitimate goals, and therefore groups which made claims, and
programs which responded to such claims, were in the political mainstream.
The regime’s discourse linked the solidification of Canada’s national identity
to the realization of equitable treatment of the disadvantaged. As a result, it
gave advocacy groups, whose goal was the achievement of social justice for
women, the disabled, Aboriginal peoples, and minorities of all sorts the
discursive space to make their claims for “categorical equity” (Jenson, 1991).
To say that the citizenship regime gave legitimacy to such claims and claimants
does not mean that everyone had equal or even fair access. What it does mean is
that claims for access and claims on behalf of groups to redress past wrongs
could be heard. Recognition of the particular needs of disadvantaged groups for
accesstothestateprovidedaprotectedinstitutionalspaceforclaims-making.
The culmination of this regime was the Charter of Rights and Freedoms. On the
one hand, the Charter endows citizens with pan-Canadian rights, thereby again
affirming that provincial differences must be minimized. The federal
government had tried to do as much in 1960 with a Bill of Rights, but had failed
to overcome provincial opposition (Cairns, 1995: p. 189; 198). It took until
1982 to negotiate the constitutionalization of pan-Canadian citizenship rights,
and then only at the cost of excluding Quebec. At the same time, the Charter
entrenched collective rights and their protection, recognizing both the
multinational composition of Canada, and the responsibility of the state for
overcoming past inequities. In all this, the Charter gave constitutional
recognition to many of the same groups that had already been recognized via
government funding in previous decades.
The Charter was simultaneously the culmination of the postwar citizenship
regime and the beginning of its destabilization. The constitutionalization of the
regime was occurring just as the policy-makers were realizing that the postwar
model of development had reached its limits and as the neo-conservative
agenda began to take hold in government and business circles.
One obvious mismatch was the state’s continued funding of equity-seekers
despite its lost enthusiasm for attempts to foster social and economic equity. As
the state started to cut back social programs, it encountered government-funded
groups critical of its intentions to cut pensions, to renege on promised childcare
programs and to reduce funding to women’s centres. When it moved from
cutbacks to redefining the basic principles of social and economic citizenship
via social policy reform, it also encountered opposition from advocacy groups
of all sorts. 18
By the 1990s, the state had begun to reconsider the wisdom of funding its
critics. Nonetheless, the cutbacks in support for intermediary institutions
cannot be explained only as a consequence of the state “coming to its senses,” or
as an effort to rid itself of irritating criticisms. A much larger change was going
on. The citizenship regime was being reconstructed. Citizen recognition would
no longer occur through intermediary institutions. Individualization of
responsibility for life’s hardships, from which Canadians had previously been
protected by the economic and social rights of citizenship, was the new model.
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The discourse on access changed similarly, bringing marketization of
representation.
Shifting the Relationship between State and Society
How is “the redefinition of government itself,” promised by the Minister of
Finance in his 1995 Budget Speech, linked to shifts in the citizenship regime?
An answer to that question begins with an appreciation of the economic crisis
which struck all advanced industrial countries in the mid-1970s, and the
specific responses it generated in Canada. As both a highly industrialized
economy and resource producer, the economic effects of the oil shock and
shifts in patterns of trade affected Canada differently than countries whose
economies relied more exclusively on industrial production. In particular,
recognition of the seriousness of crisis and the mobilization of a political
strategy in response was delayed until well into the 1980s (Noël et al., 1993).
Moreover, because the political regulation of the postwar model had implicated
the institutions of federalism more than partisan politics, the crisis was
manifested politically as a constitutional crisis (Jenson, 1989a). Constitutional
politics was the terrain where much actual debate on economic restructuring
occurred. As a result, implementing change was often difficult because it
involved moving eleven governments and because constitutional reform is a
cumbersome route to economic and social policy change. Not surprisingly, to
the extent that changes were made, those affecting individuals were often done
“by stealth,” involving arcane and poorly understood technical changes to
programs, such as de-indexing and clawbacks in the tax system (Gray, 1990;
Rice and Prince, 1993). Those affecting federalism often involved changes
imposed on the provinces by the federal government. Thus, concerns about the
restructured economic future were expressed not only in economic terms;
demands for democracy and openness also began to resonate. 19
Demands to be heard in the matter of restructuring rose in a loud chorus from
groups in civil society who interpreted the two crucial events of the 1980s—the
Meech Lake Accord on the constitution and the Free Trade Agreement with the
USA—as two signs that the state refused to listen to citizens. 20 One result of
such demands has been an increase in public “consultation” mechanisms as a
standard part of the policy process and new forms of “partnerships” in program
delivery (Phillips, 1991). While both of these might be seen as efforts to allow
more room for democratic citizenship, it is important to place them in context.
That is, they were accompanied by activities of the state, parties and other
institutions which both delegitimated the representational role of organized
interests and made it more difficult for them to engage in advocacy. 21
The withdrawal of support has come in a number of ways as part of a reconfiguration
of the relationship between state and society. First, many
institutions have been reorganized to lower the visibility of certain categories of
citizens and to remove their means of advocacy from within the state. The most
obvious of these attempts is the swift dismantling of the “Women’s State” in
1995. 22 Secondly, the credibility of advocacy groups is under attack and their
capacity to represent citizens to the state is being diminished. In the process, the
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nature of public consultation is shifting direction. Thirdly, modes of service
delivery are being recast under a rubric of partnerships.
Removing Advocates from Within the State
Institutional change within the federal government has reduced the internal
recognition of many group interests and has shed centres promoting potentially
critical policy perspectives. One step was simply to dismantle the government
department which had been most visibly involved in promoting citizenship
through social development. In a major reorganization after Kim Campbell
became Prime Minister in 1993, the Secretary of State Department closed down
and its programs were either cancelled or placed in a variety of other
departments. Such reassignments and the breaking of bureaucratic linkages
would obviously have effects on civil servants’ capacity to continue to deliver
programs according to the long-standing philosophical principles. In addition,
political representation of many societal interests at the cabinet table was
eliminated. In implementing the rhetoric of the campaign to reduce waste
within government, the size of the cabinet was reduced to 25 under Campbell
and 23 under the Liberal government of Jean Chrétien from a peak of 40 under
Mulroney, which at various times had included representatives for youth,
seniors and small business, among other interests (Swimmer et al., 1994: 192-
93). 23
Restructuring was also designed to eliminate parapublic bodies which had
stood at the interface of civil society and the state, providing access for ideas via
policy research. In 1992, both the Economic Council of Canada and the Science
Council, bodies that had been created to advise the government by bringing the
expertise of non-governmental sources “into the loop,” were eliminated. The
rationale given was that private-sector research institutes were more
appropriate sources of advice as well as recipients of state monies for specific
programs. 24 In 1995, the Canadian Advisory Council on the Status of Women
(CACSW) was also quietly wound down, apparently to avoid duplication with
the activities of Status of Women Canada and thus improve services to the
public. As we will see below, however, this justification is less convincing than
it might appear.
Women were one category of citizens that attained significant recognition in
the postwar regime, and one whose state institutions of representation have
been extensively altered in the 1990s. The Women’s State was created in the
1970s in response to women’s claims that they were variously disadvantaged
and that some of their citizenship rights were more formal than real. In different
ways, the three institutions collectively called the Women’s State—the
Women’s Program, CACSW and Status of Women—became advocates for
women within the state and were therefore important routes to representation
and for making citizenship claims.
In 1974, the Women’s Program was created as a separate branch within the
Department of Secretary of State. Its goal was to foster the capacity for political
action and organization among women by providing core and project funding
to support women’s advocacy groups. 25 As the Secretary of State’s own
evaluation of the Program (1985, p. 19) said, “The philosophy behind the
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Women’s Program is not one of compensation to individuals. Rather it
assumed that weak and disadvantaged segments of a population can only begin
to overcome their position through organizing and through collective action.”
From the beginning, the feminists who ran the Program defined their job as
being advocates for women within the state and accountable to the women’s
movement. They developed close ties with women’s groups and sought ways to
use state resources to support the development of the movement (Findlay,
1987: pp. 39-40).
The second major state institution representing women, the CACSW, was
created in 1973 as an independent advisory council reporting to the Minister
Responsible for the Status of Women, and mandated to conduct research and
advise government on matters pertaining to women. Its structure consisted of a
politically appointed board and a full-time professional staff. The Council’s
greatest strength was its independent research capacity, although it operated on
a shoe-string budget (Burt, 1995: p. 375). From the early 1980s, however, the
Council was often seen as little more than an advocate for the women’s
movement by those within the state, especially among the movement’s
detractors or those who considered the CACSW a thorn in their side. Nor did it
have the full support of the movement, which saw the Council engaged in selfcensorship,
reluctant to develop close ties with national women’s groups and
extremely limited in its access to political decision-makers (Findlay, 1988: 90;
Burt, 1995). 26
The third part of the Women’s State was the tiny (its 1994-95 budget was only
$4.7 million) transversal department assigned to coordinate and provide liaison
on women’s issues and to develop and monitor policy initiatives. Status of
Women Canada reports to the Minister Responsible for the Status of Women,
who has usually also headed a major line department. Of the three parts of the
Women’s State, Status of Women came under the most direct control of a
Minister. Through the 1980s, observers recount that it increasingly became the
instrument of the Minister, who closely followed the party’s agenda. 27 In
addition, the Department’s influence has been limited by its inability to
perform the research required to develop policy initiatives. Nor is there any
mechanism to make the line departments accountable to Status for their
programs. It can only exercise vigilance and exert moral suasion.
The Women’s State was dismantled with little publicity in two quick actions in
1995. First, the Budget amalgamated the Women’s Program (which since 1993
had resided in the Human Resources Development Department) with Status of
Women. Two weeks later, CACSW was eliminated completely, reducing from
three to one the institutionalized points of access for women to the federal
government. The government explained these decisions in a variety of ways. A
primary justification from the Department of Finance concerned an efficiency
argument: “the ‘single window’ approach will result in a streamlining of
resources and costs, the elimination of duplication, and an improvement of
service to the public.” 28 This logic is less convincing than it might appear
because there was, in fact, very little duplication of functions, other than the fact
that all three agencies had “women” in their title .29 Not much money was going
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to be saved by all this reorganization, nor in the larger scheme of things did they
spend much to begin with.
Sheila Finestone, the Secretary of State for the Status of Women, provided a
different—and seemingly contrary—justification. “Our goal is to ensure that
women become full and equal partners in society and this initiative will focus
our efforts more effectively.” 30 The amalgamation was intended to “provide
the government with a critical mass of expertise on women’s issues, enhance its
capacity to identify and target key policy issues for actions, and increase the
focus and effectiveness of the government’s effort to promote women’s
equality in collaboration with the voluntary and other sectors of society.” 31
These statements give no clear indication, however, of how women are to
become equal partners and or the envisaged relationship between women and
the state. While such statements might be interpreted to mean that the Minister
is still interested in hearing from women, initial signs point to another process.
The new structure is designed to allow women to hear from the state.
The Minister was reported to be particularly keen on acquiring control over two
structures of the Women’s State. The first is the regional offices which the
Women’s Program had developed. These were used by the Program as an “ear
to the ground,” moving information upward as well as providing support and
funds directly to communities. It appears that Status of Women intends to use
the offices as a way of “informing” citizens about the activities of the
department and its Minister. 32 Secondly, Status of Women was interested in
absorbing the research budget of CACSW but with little intention of supporting
independent research as CACSW did. The in-house component is minuscule
and will be used primarily for policy-oriented research into government
priorities, as directed by the Minister. Some “independent” research, under $1
million worth, will be contracted out. 33 Thus the surviving institution of the
former Women’s State can be most easily controlled by its “political masters”
with less capacity to act as an internal advocate for women. The signal is clear.
Groups should be self-supporting and voluntary. The state experiment to
facilitate and even promote the collective voice of women and its
representation within the state is gone.
Reducing Interest Group Capacity and Credibility
A related manifestation of the shift in the citizenship regime has been a direct
attack on the credibility and organizational base of groups and their role in
policy consultation. A first step involved reducing direct funding to public
interest groups. The Tory government began to cut grants and contributions to
groups selectively in 1986-87. Often, there was a sort of “testing of the waters”
to see what reactions would be. The funding practices of the Women’s Program
was only one target. 34 Moreover, the cuts were sensitive to political opposition.
For example, the 1990 Budget made cuts to three women’s magazines, five
feminist groups (a 20 percent reduction) and 80 women’s centres. The National
Action Committee on the Status of Women (NAC) was spared at first, however.
The government feared an uproar if it were touched and widespread
demonstrations did succeed in restoring some funding to the women’s shelters.
Nonetheless, the pressure for reductions was relentless on both the Secretary of
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State and the other departments which fund groups. Each year, further cuts
were announced. Nor did a change in government alter the situation. The
Liberals’ first budget in 1994 made a five percent cut and the 1995 budget
imposed further and more selective cuts, specifically targeting advocacy
groups. 35 Finance Minister Martin also promised a major review of interest
group funding with a view to reducing overall spending levels and promoting
reliance on other sources. 36
The high-level taskforce appointed by the Liberal government to develop this
new funding strategy identified a number of criteria clearly intended to stress
the role of groups as service providers, rather than as advocates. One criterion is
to test funding against the organization’s benefit to the public. Another is its
ability to access other funds. Groups which spend more time on service delivery
and less on advocacy are much preferred. Finally, the “fit” between the groups’
activities and government priorities is important. Overall, as the task force
realized, these criteria constituted a test of the importance of particular
programs, not just groups, to the departments. For those that need groups to
deliver their programs and support their policies, they could fund them. The
result of using these criteria, rather than ones of justice or equity in access,
releases the state from many obligations. But in other cases, it will take a strong
hand in setting direction and policy, using groups as its clients and occasional
allies.
Such reductions in funding, then, are not merely a consequence of overall costcutting,
but the symptom of a full-scale assault on the legitimacy and credibility
of advocacy groups. The Conservatives started the drive which accelerated
under the Liberals. The initiative is popular among politicians in both the
government party and the opposition Reform party who argue that the only
legitimate representational form is a direct link between individuals and their
MPs. In addition to calling for more use of referenda and recall, they have taken
on advocacy groups, which they prefer to call “special interests.” The debate is
focussed squarely on public interest groups, rather than “lobbyists” in general
or economic associations. 37 According to the discourse of right wing populism,
organized public interest groups are not legitimate because they are not “real
Canadians.” The first line of attack concerns the groups’ sources of funding.
The second concerns representation itself and the determination of legitimacy:
Have they proven themselves worthy of the claim that they represent someone?
A common statement is that “group X doesn’t represent me/all women/all
Canadians.” Thus, even if a group is self-supporting, it may still be branded a
“special interest.” Failure to represent only some, and not everyone, makes a
group “special” and therefore lacking legitimacy. 38
One of the most vocal critics is John Bryden, a backbench Liberal MP from
Hamilton-Wentworth. His crusade derives from his personal experience as a
new MP when he reports to have been shocked to learn that groups had more
power than parliamentarians. “When I got up here, I was amazed to find that
senior politicians deferred to them so much....Asabackbench MP, I was in
severe competition to be heard.” 39 Bryden produced his own report on interest
group funding and presented it to the House of Commons Finance Committee
in November 1994. He looked only at public groups that took money from
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government, but made no mention of economic associations or professional
lobbyists. 40 He paid particular attention to salaries of staff and use of charitable
status under the tax system and called for a parliamentary committee to
investigate the finances, tax breaks and funding of groups. Thus, he wrote that
the practice of using general tax revenues to support advocacy groups:
has created a government-dependent industry where misrepresentation
is a common business practice, where semantics and twisted
definitions enable the spirit of laws to be ignored, where individuals
award themselves huge salaries, hire professional lobbyists to get
more money, and attack critics with name-calling and noisy
demonstrations. 41
The problem for Bryden is not simply the misuse of funds, however. The
fundamental issue is that the groups do not represent the truth, either. As he
said,
Indeed, as paid consultants to government special interest advocacy
groups are truly an Alice-in-Wonderland phenomenon. They are a
kind of non-governmental ministry of non-experts. They are a world
where non-scientists do scientific research, where non-health care
professionals give expert opinions on health, where non-sociologists
do opinion-polling and questionnaires. There are even governmentfunded
information centres to collect and distribute the resulting nonexpert
publications and issue non-expert press releases (Bryden,
1994, p. 13).
The language of “special interests” has resonated far beyond Bryden and the
Reform MPs. Indeed, the conflict between groups and elected MPs seems to be
boiling down to an “us or them” mentality. One reason for this divide stems
from a decline in recent decades in the representational capacity of Canada’s
brokerage parties. The public’s distrust of politicians is another manifestation.
As part of the dissatisfaction, many people turned to interest groups to
campaign around the great issues of the day. Two defining moments were the
campaigns for the 1988 election and the 1992 constitutional debates. In both
cases, opposition to the government’s proposals was mobilized by groups; the
parties were effectively sidelined from framing the debate (Clarke, Jenson,
LeDuc and Pammett, 1996: Chapter 1). In the 1988 election, the Pro-Canada
Network faced off against the Business Council on National Issues, and a huge
“parallel campaign” emerged (Hiebert, 1991). In the referendum campaign on
the Charlottetown Accord in 1992, the document negotiated by the federal
government, the ten provinces, two territories and four Aboriginal associations
met defeat after a campaign in which advocacy groups, and especially NAC,
were very visible (Pal and Seidle, 1993). The referendum defeat was widely
interpreted as a defeat of “elites.”
The line now seems to be that parties and Parliament must monopolize
representation, sharing legitimacy only with individual voters. Thus, the 1992
Report of the Royal Commission on Electoral Reform and Party Financing
(RCERPF), whose major goal was to strengthen and shore up the
representational capacity of political parties, also adopted the language of
special interests. The RCERPF was a strong advocate of the legitimacy of
public funding for political parties and state support for ensuring what the
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Report called fair and equitable representation. Despite pressure from some
members of the government party to eliminate the current system of
expenditure limits, and despite the anti-public funding discourse of the Reform
and other right-wing parties, the Report of the Commission lauded the current
philosophy and even recommended more public funding to induce an increase
in the number of women in the House. 42 Nonetheless, it insisted on maintaining
a distinction between the “good” representation provided by strong parties, and
the representation of “special interests” by advocacy groups (Dobrowolsky and
Jenson, 1993).
The backlash against public interest groups has also been reflected in subtle
changes to the format of public consultations organized by federal
departments, parliamentary committees and independent commissions. This
shift began in 1990 with the Citizens’ Forum on Canada’s Future which used
the opportunity of a national consultation exercise to hear individuals as
individuals, not as members of interest groups and which judged its success by
the number of participants involved, no matter how minimally these
individuals participated: a phone call to a 1-800 number was sufficient to be
counted. This approach has become the norm of national consultations. For
example, in 1992 the Canadian Panel on Violence against Women used a
substantial part of its $10 million budget to travel to 139 communities across the
country. It heard from 4,000 individuals who were encouraged to recall their
personal experiences with violence. At the same time, it severely limited
opportunities for representatives of groups from the shelter and women’s
movements to engage in discussions of policy alternatives (Phillips, 1995).
Similarly, the Liberal government’s major consultation on the social security
review took great pains to ensure that representation by interest groups was
counter-balanced by participation by individuals. While the parliamentary
standing committee that led the consultation heard from a wide variety of
interest groups, the Department of Human Resources Development ran a series
of supplementary exercises, including focus groups, 1-800 phone lines, public
opinion surveys and policy “workbooks” that were designed to provide input
from individual citizens. For Reform party members of the parliamentary
committee, however, special interests still dominated the process. In their
dissent from the Committee’s 1995 report, the Reform members complained
about the consultation process and objected to any public funding of
intervenors (Standing Committee Report, 1995, p. 295):
Reform MPs believe that a way must be found for parliamentarians to
hear the opinions of real Canadians. Reformers believe that many of
the problems experienced by the Standing Committee during the
public hearings could be avoided. The Liberal-dominated committee
gave 159 special interest groups $4 million to appear before the
committee and called it “consultation.” We call it “tales from the
trough.”
The Department of Finance has also changed how it conducts its pre-budget
consultations. From consultations on a sector by sector basis it has moved to
more broadly based meetings that involve not only group representatives, but
representative citizens. 43 The trend is to bring together “multi-stakeholder”
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sessions of divergent, often opposing groups, so that they can educate each
other. The implication is that the Minister may no longer hear a strong, coordinated
voice from any particular sector in these consultations. While
consultations with individuals might provide useful additional points of access
for citizens, the government’s motive is less one of civic education or
participatory democracy than an attempt to countervail the groups, especially
those most likely to oppose the retrenchment of the welfare state.
Redefining Government through Partnerships
The language of “partnership” became the buzzword for a new form of
governance in the early 1990s under the Conservatives; it has been maintained
under the Liberals. Indeed, one of the six tests used under the 1994 Program
Review of the federal government’s future roles and responsibilities is the
scope for public-private partnership as an alternative for the delivery of
programs or services. 44 The intent is to encourage a wide array of partnering
arrangements with both the private and third sectors. While reducing costs is an
important goal of public-private partnerships in the current environment of
economic restraint, it is not the only one. The claim is also made that
partnerships have the potential to improve the quality of service delivery and
program design because the partnering organizations often have a better
awareness of the needs of their regular clients and more flexibility in
responding to these needs. 45 In addition, partnerships permit differences in the
types of services provided and facilitate local control, in keeping with the
retreat from national standards.
Despite the potential of partnerships, the current approach in Canada detracts
from, rather than enhances, the maintenance of a vibrant third sector. First, true
partnerships involve power-sharing. Initial indications of experimentation
with partnerships by Canadian governments, however, suggest that they have
not invested whole-heartedly in such relationships and have been unwilling to
share power with the partners, preferring instead to maintain a traditional topdown
approach. Many of the so-called partnerships are, in fact, merely
contracts in which the state, as the contracting party, sets all the rules.
Regardless of the constraints of these contracts, many third sector
organizations enter into them either because they need the project money to
replace the lost core funding or because the state has withdrawn from direct
provisionoftheservicesandtheirconstituencieswillnotbeservedotherwise.
Secondly, partnerships may alter the nature of third sector partners, especially
social movements. The originality of the new social movements established
since the late 1960s is that they are not tied to specific places, but represent
broader, often quite diverse, social communities and are dynamic, fluid
networks, rather than conventional, institutionalized organizations. The
sometimes elaborate rules of contract partnerships, however, may force them to
become more place bound (by delivering services to specific geographic
communities) and may transform the informality of movements into
formalized, professionalised organizations (Mendell, 1994: 79).
Thirdly, the current approach is creating a hierarchy of groups, with those
focussed exclusively on service delivery at the top, and those focussed on
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advocacy deemed irrelevant. For the partnering organization, opportunities for
“civic engagement” (Putnam, 1995: 66) may be diminished because of the
difficulty in advocating for policy changes within a partnership arrangement,
especially if the state holds the power cords. From the outside, it is more
difficult to lobby multiple partnerships than a single government body.
In the face of economic restraint, an even more difficult problem arises.
Frequently, once a partnership arrangement has been established and a
clientele has become dependent upon it, the state’s contribution to the contract
is cut significantly. Contrary to the popular myth that such cuts enliven a sense
of voluntarism to fill the gap left by state funding, experience from the United
States indicates that the common response by third-sector partners is not a
growth in voluntary activity, but a rise in commercialism. Voluntary
organizations turn to user fees and other sources of market income, thereby
becoming more business-like and more integrated into the private market
economy. In addition, for-profit firms begin to seek out this niche, often
gradually crowding out the voluntary organizations (Salamon, 1995: 240).
So far, Canadian governments have assumed that voluntary organizations not
only have the infrastructure, but would welcome participation in governmentinitiated
partnerships. In reality, the bulk of voluntary organizations in Canada
have limited budgets and staff: 50 percent have annual revenues of less than
$50,000 and 60 percent employ either no or only one full-time person. 46 And,
given the sustained attacks on their credibility, many organizations which do
have the infrastructure toenter into such partnerships may be unwilling todo so,
at least on the terms demanded by the state.
Finally, the principles that can be substantiated under arrangements of service
delivery by public-private partnerships are quite different from those of direct
state delivery. This can have both positive and negative consequences. While
governments are expected to provide standardized services on an equitable
basis across wide geographic regions, and are best at it, most voluntary
organizations are particularistic, providing services tailored to their target
constituencies, and are unevenly distributed geographically. 47 Whereas
governments usually stress access to all qualified beneficiaries, voluntary
organizations usually operate on a first-come, first-served basis. Thus, even if
partnerships do prove to be an effective means of program delivery, they are
further accelerating the abandonment of the pan-Canadianism of national
standards and fairness that was a feature of the postwar citizenship regime.
One clear message from all this is that the state, within its neo-conservative
thrust to reconfigure state-society relations, has abandoned what Pal labelled
the “quaintly organic view of society” in which the state’s mission was to help
groups weld together individuals. That responsibility for fostering solidarity
and guaranteeing the collective access of the disadvantaged has been
amputated from the citizenship regime. Individuals are charged with
representing themselves, through referenda and petitions and during public
consultation, in addition to elections. Any expression of collective interests
must be the product of a hardy competitive capacity to organize and generate
resources in the marketplace of ideas. Both the government and populist social
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forces advance this position, appropriating the discourse of marketization and
cost- effectiveness from the purveyors of neo-conservative ideas.
Does this mean, then, the end of a “thick” civil society and a new era of
atomized individualism? Is there no place for organized interests in the
citizenship-regime-in-becoming? The answer to this question is “No.” They do
have a place, albeit different than the one they occupied in the postwar regime.
In the era of less interventionary states, organized groups are being pressed into
service to represent the state in civil society. Advocates may be out but service
providers are in.
Redesigning the Citizenship Regime: Contradictory Tendencies?
The final results are not in and the period of reconfiguration has not brought a
smooth transition. Rather, it is beset by a number of basic contradictions. The
shrinking presence of the state means that many of the services it once provided
directly will devolve to the voluntary sector. And, with the recent changes in
federal-provincial financing, these services are being off-loaded to the
provinces. The era of national standards and pan-Canadian services is waning,
as the federal government reduces its participation in the programs and
institutions which underpinned the postwar model of development. Provincial
governments, in their own pursuit of deficit reduction, are further off-loading
responsibility for many of these services to local communities.
The devolution of service delivery means that the state will need the third se