In early January, University of Toronto law professor Patrick Macklem released a book called Indigenous Difference and the Constitution of Canada. This book talks about the legacy of European colonization in Canada and says that the Aboriginal Peoples in Canada have a unique constitutional relationship with the State. As an Aboriginal many have heard the cries of unfairness when non-Natives say that special recognition is given when “Aboriginal people don’t pay tax” or are “allowed to hunt or fish out of season.” Macklem states that the unique relationship between First Nations and the Canadian State is required by fundamental principles of justice and he looks at equality in a very different light than just “all citizens must be treated the same way.”
The book at times is dry in the sense that it contains great amounts of information that is ultimately useful to anyone concerned with Aboriginal rights. Pouring through it is difficult but ultimately rewarding. The reasoning is concise, logical and definitely not what the Reform crowd wants to hear given Macklem’s reputation as a constitutional lawyer and scholar.
Macklem, like the Cree-Naskapi Commission, sees the need for an independent tribunal to oversee treaty negotiations and implementation. He writes, “an independent tribunal is necessary to eliminate the conflict-of-interest currently confronting the federal government when it acts as the sole adjudicator of comprehensive and specific claims.” He says that section 35(1) imposes positive obligations on the government to respect, promote and fulfill Aboriginal and treaty rights.
Not only would I recommend this book, but I would say it should be required reading for Aboriginal leadership. It just might clear up a few things and give them some ammunition the next time they sit down with either the provincial or federal governments.
The Nation: Could you give us an overview of the book?
Macklem: I’d love to. The project, as a whole, was to try to explain why certain social and historical facts distinguish First Nations from other communities within Canada. It was designed to speak to two perspectives. There are those who believe historical and social facts don’t possess constitutional significance. These people believe that Aboriginal people are the same as other non-Aboriginal people. That they are the same and shouldn’t have a unique constitutional relationship between Aboriginal People and the State. There are crass versions of this and more sophisticated versions. The other perspective is quite different and they believe that the constitution should say nothing and shouldn’t govern First Nations. That First Nations shouldn’t be a part of the Constitution. Sovereignty has been denied but it continues to exist. That First Nations should be under international law instead. It was designed to speak to these two very different audiences. It was to try to persuade these audiences that the Constitution has something important to say about Aboriginal people. That Aboriginal people enjoy a unique relationship with the State that non-Aboriginal people do not enjoy. That’s the basic point.
It was to try to give an account of Aboriginal territorial relationships, sovereignty, the treaty process and Aboriginal cultural differences. To try to give an account of those social and political realities in a way that shows the Constitutional consequences.
I argue that the consequences are that the Constitution recognizes rights to self-government, territorial rights, cultural rights and an on-going treaty process with the Canadian State.
I explore the nature and scope of those rights.
You talked about equality in it. You say there is equality even though there are differences?
Yes, in part I try to do that to construct a common language by which we might be able to talk about first nations relationships to Canada. It’s my belief that First Nations seek a type of equality with other Canadians. It isn’t necessarily the type of equality that other Canadians desire of First Nations. There are equality claims being advanced on both sides in these types of disputes but the nature of those claims differ quite dramatically. So the task was to try to sort how we might be able to understand First Nations relationships to Canada through equality in an interesting way. For example, Aboriginal territorial rights and Aboriginal title can be and ought to be in part understood in terms of Aboriginal Peoples attaining a measure of equality in Canadian property law. That is, original peoples in the past have not been treated equally in Canadian Property Law. Canadian Property Law did not recognize the prior occupancy of First Nations but it did recognize prior occupancy in non-Aboriginal settings. So treating Aboriginal people equally in property law means recognizing Aboriginal title.
And there’s also an equality claim built into Aboriginal rights to self-government that I think helps us understand the significance of those rights. First Nations were not treated as equals to European nations during colonization. Their sovereignty wasn’t recognized while European sovereignty was. We know the consequences of that. In part they include a distribution of sovereignty under Canadian law that until recently had not included Aboriginal sovereignty. So I argue that equality requires recognizing a measure of Aboriginal sovereignty within the Canadian constitutional order.
In terms of culture I try to give an account of Aboriginal cultural rights through equality and language as well. That is, that Aboriginal cultures are threatened by forces of assimilation. In order to protect against these forces they need to be placed on an equal footing as non-Aboriginal cultures. In order to achieve that, Aboriginal cultural rights should be recognized by the Constitution.
My analysis of the treaty process highlights the claims of equality. First Nations have to be treated as equals. There has to be a nation-to-nation relationship.
There are all sorts of appeals to the value of equality in the notion that First Nations ought to enjoy a unique constitutional relationship with Canada. Equality doesn’t always mean similarity or similar treatment. Equality very often means differential treatment and it ought to mean that in the context of Aboriginal Peoples. In order to achieve equality we treat different people differently all the time. So differential treatment isn’t inconsistent with equality. In many cases equality requires differential treatment. There’s more to equality than what opponents of Aboriginal treaty rights would suggest. In fact equality works to support Aboriginal treaty rights in the Constitution.
That’s quite different from what the Reform Party would say.
Yes, ! think to that extent the Reform Party is wrong. Equality is a much more complex idea than one that simply mandates that everybody, whatever their circumstances, be treated the same. This is speaking to and against the Reform Party’s agenda for sure. It’s using in part their own words and categories and telling them they can’t claim equality as their value. That Aboriginal self-government and territorial claims aren’t antithetical to notions of equality. In fact they are consistent.
What are some of the conclusions or ideas you ended with in your book?
The main direction of the latter chapters of the book is to say that Aboriginal and treaty rights, on their own, require more than State inaction. They require positive action by the State. They require the State to establish robust treaty processes that enable the negotiation and renovation of treaties. That would enable First Nations to re-obtain much more authority over much more territory. I argue that they require the Government to establish a freestanding tribunal that would be responsible for overseeing comprehensive and specific claims and to hold parties to a treaty relationship to fulfill obligations and negotiate in good faith. The tribunal would have to oversee the negotiations so that occurs. The tribunal would have the authority to deal with disputes that come out of the negotiation processes and to impose binding settlements if necessary. It would be less of a court-like structure and more of an administrative tribunal, a specialized agency with the power to hold the parties to negotiations and impose positive obligations on them to negotiate. I understand the AFN is in negotiations with the federal government to try to establish this type of tribunal but I’ll bet my version of it is somewhat more robust than what the federal government is likely to contemplate.
The point is that Aboriginal and treaty rights do impose positive obligations and
here they are: fair treaty processes, substantive negotiating obligations on the parties, the need to provide First Nations with much more territory and self-governing authority than they currently have now and the like.
In the book you talked about the Van der Peet court case (says an Aboriginal right is an activity that had to be an “element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right at the time of contact.” Contact meaning meeting the Europeans) and how it was flawed in three respects. When I was looking at that case it made me think about B.C., because there wasn’t a pre-contact regulatory body overseeing all the different tribes in the area where trade was concerned. Even though there was trade it wasn’t allowed. I felt that the court, in doing this, doesn’t allow for Aboriginal culture or tribal law to go beyond what it was before contact – meaning you’re freezing the culture.
I think you’re right. To be fair to the court they do allow rights to evolve but you have to have this pre-contact practice from which it can evolve. But if you don’t have a pre-contact practice it doesn’t receive judicial protection. If a First Nation hunted before pre-contact they can hunt now in modern ways and it is protected by judicial rights. So it is frozen and they aren’t but that position I try to critique because what I think is important is not whether or not there is pre-contact practice. But is the practice, pre or post, important to the viability of the culture and that’s what the courts should be focusing on, not looking back in time to try to create a pre-contact category. It makes it hard though because the courts will say that means everything. That means current economic practices that bear no relation to history, so to speak. That creates its own challenges. How do you define culture in such a way that it doesn’t include every conceivable social practice under the sun? I guess my answer to that is that is a good question and we have to break these things down. That we shouldn’t try to build territory into culture, governance and economic practices into culture. Those kinds of concerns ought to be addressed on their own terms. There are other reasons why Aboriginal governance and limits to that come from those reasons and not this notion of culture.
It’s a tough question because Aboriginal rights should not be frozen for all the reasons we’ve heard about, but once you move away from that another set of challenges arises. Part of the first few chapters are dealing with part of that question and that’s why I break things down into culture and territory, sovereignty and the treaty process. Obviously all of these are deeply related and there’s certain amount of artificial separation happening. It doesn’t separate well given that many First Nations cultures are deeply connected to territory but it’s useful to separate them to see what rights make up this unique relationship with the constitution and where do they come from and how can we justify them.
You talked about Aboriginal sovereignty. How likely do you see that happening? You’ve talked about the inequities. You look at the resource extraction/exploitation and see no form of revenue sharing. If you’re talking about sovereignty do you need a monetary base for that to happen?
There are two routes to talk about. There’s the judicial route and there’s the negotiated route. These work in tandem which makes the problem complicated. If I was to project or predict I would say the judiciary will take very cautious incremental steps towards recognizing an Aboriginal right of self-government, to recognize a constitutional right of self-governance, which would be the modern manifestation of Aboriginal sovereignty. So I think they’ll take cautious steps, but they will take steps. It will be situation and topic specific. On the other hand, the negotiated route will take broader cuts at this.
In an ideal world the federal government would establish robust treaty processes that produce the sharing of sovereignty and the sharing of governing authority. We see it in nescient ways the Nisga Agreement, the JBNQA and in other self-government agreements or agreements that provide for some self-government or shared management. If they get the treaty processes right and if there’s the political will to make it happen then those should produce agreements that share governing authority over certain matters and produce cost-sharing arrangements as well. Cost sharing and equalization is a pretty well established principle in Canadian Federalism and there’s no reason why it shouldn’t be extended for First Nations. In fact, it sort of is already in a way but it isn’t regarded in those terms. There are lots of grants, though not enough, going out to help some First Nations build social infrastructure and that sort of thing.