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Published online by Cambridge University Press: 01 January 2020
In their 1969 so-called White Paper on Indian Policy,Pierre Trudeau's government argued that it was time to abolish the group-specific rights differentiating Aboriginal people from other Canadians, including, in some Aboriginal societies, the group-specific right to restrict voting, residency, public office, and other social goods, to their Aboriginal members. Given the negative impact the loss of such so-called collective or group rights would have on the security of their cultures, Aboriginal people were incensed, and, consequently, the federal liberals backed down. More recently, Gordon Campbell maintained as a 1996 election promise that, were his provincial liberal party to be elected in British Columbia, he would oppose group-specific rights for Aboriginal people in British Columbia. Both Trudeau and Campbell argued that it is wrong for Aboriginal people to have group-specific rights by appeal to the idea that such collective rights are discriminatory because they assign opportunities to individuals on the basis of culture or race. Political elites are not alone in thinking that collective rights override individual rights. In fact, it has become a national motif that Section 15 (1) of the Canadian Charter, which makes it illegal to discriminate on the grounds that citizens are to be guaranteed equal protection of the law, is incompatible with group-specific rights for Aboriginal people.
1 For discussions, see Morton, F.L. ‘Group Rights versus Individual Rights in the Charter: The Special Cases of Natives and the Quebecois,’ in Minorities and the Canadian State, Nevite, N. and Kornberg, A. eds. (Oakville, ON: Mosaic Press 1985)Google Scholar; Taylor, Charles ‘The Politics of Recognition,’ in Multiculturalism and the ‘Politics of Recognition’,Google Scholar Guttmann, Amy ed. (Princeton: Princeton University Press 1992);Google Scholar Weaver, Sally ‘Federal Difficulties with Aboriginal Rights Demands,’ in Boldt, Menno and Long, J. Anthony eds., The Quest for Justice: Aboriginal Peoples and Aboriginal Rights (Toronto: University of Toronto Press 1985)Google Scholar; and Webber, Jeremy ‘Individuality, Equality and Difference: Justifications for a Parallel System of Aboriginal Justice,’ in Royal Commission on Aboriginal Peoples (1993), Aboriginal Peoples and the Justice System: Report of the National Round Table on Aboriginal Justice Issues (Ottawa: Ministry of Supplies and Services Canada 1993)Google Scholar.
2 Kymlicka, Will Liberalism, Community, and Culture (Oxford: Oxford University Press 1989), 190–1Google Scholar
3 Rawls, John A Theory of Justice (London: Oxford University Press 1971), 178Google Scholar
4 For a recent argument for the view that the development of rational agency is itself a process of acculturation see Wiredu, Kwasi ‘Are There Cultural Universals?’ The Monist 78 (1995) 52–64CrossRefGoogle Scholar. For a recent argument for the view that the maintenance of personal agency depends on secure cultural membership see Stevenson, Jack ‘Aboriginal Land Rights in Northern Canada,’ in Cragg, Wesley ed., Contemporary Moral Issues 3rd ed. (Toronto: McGraw-Hill Ryerson 1992)Google Scholar. Kymlicka considers several reasons for why secure cultural membership is essential to personal agency and concludes that whatever the explanation, it is a fact, the causes of which ‘lie deep in the human condition, tied up with the way humans as cultural creatures need to make sense of their world, and that a full explanation would involve aspects of psychology, sociology, linguistics, the philosophy of mind, and even neurology’ (Kymlicka, Liberalism, 90Google Scholar).
5 Of course, a liberal could accept the crucial point (1) without making any reference to the Rawlsian veil of ignorance.
6 The differential circumstances of the two majority cultures obviously warrants a separate discussion, but does not undercut Kymlicka's argument for Aboriginal rights.
7 Royal Commission on Aboriginal Peoples (1996), Report of the Royal Commission on Aboriginal Peoples (Ottawa: Ministry of Supplies and Services Canada 1996). Hereafter RCAP 1996. See vol. 1, 294-9; vol. 2, part 2, 485-99, 867-68.
8 Carter, Sarah Lost Harvests: Prairie Indian Reserve Farmers and Government Policy (Montreal and Kingston: McGill-Queen’s University Press 1990), ixGoogle Scholar; quoted in RCAP 1996, vol. 2, part 2, 868
9 Part of the confusion here can be traced to the fact that in his earlier work on minority rights Kymlicka uses ‘the rights of the aboriginal population in Canada and the United States as a focal point for exploring these questions about the role of cultural membership in liberal theory’ (Kymlicka, Liberalism, 136)Google Scholar. His arguments there do establish the importance that cultural membership should play in liberal theory, but the distinction he explicitly draws between national minorities and ethnic minorities in his later 1995 book makes explicit what is implicit in his 1989 book, namely, that Aboriginal rights are a special case of minority rights.
10 For discussions see Wolf, Susan ‘Two Levels of Pluralism,’ Ethics 102 (1992) 785–98CrossRefGoogle Scholar; and Guttmann, Amy ‘The Challenge of Multiculturalism in Political Ethics,’ Philosophy and Public Affairs 22 (1993) 171–206Google Scholar. The view that fundamental normative principles sometimes conflict, and therefore leave room for choice, is well supported by the prevalence of irresolvable dilemmas in normative matters.
11 Rawls, A Theory of Justice; Dworkin, Ronald ‘Liberalism,’ in Public and Private Morality, Hampshire, Stuart ed. (Cambridge: Cambridge University Press 1981)Google Scholar
12 Kymlicka rightly rejects that idea that the state can be neutral between cultures: ‘Government decisions on languages, internal boundaries, public holidays, and state symbols unavoidably involves recognizing, accommodating, and supporting the needs and identities of particular ethnic and national groups. The state unavoidably promotes certain cultural identities, and thereby disadvantages others’ (Kymlicka, Multicultural Citizenship, 108)Google Scholar.
13 Danley, John R. ‘Liberalism, Aboriginal Rights, and Cultural Minorities,’ Philosophy and Public Affairs 20 (1991) 168–85, at 179Google Scholar; Taylor, 40-41 n.16
14 Nickel, James W. ‘The Value of Cultural Belonging: Expanding Kymlicka’s Theory,’ Dialogue 33 (1994) 635–42, at 638CrossRefGoogle Scholar
15 Even the Department of Indian Affairs and Northern Development recognizes that the loss of secure cultural membership is a significant harm for Aboriginal people (see Asch, Michael Home and Native Land: Aboriginal Rights and the Canadian Constitution [Toronto: Methuen 1984], 66–67)Google Scholar. Indeed, although the attempt was made to reduce the status of Aboriginal rights to an aspect of multiculturalism, it is recognized in the White Paper on Indian Policy: ‘Without recognition by others it is not easy to be proud. All of us seek a basis for pride in our own lives, in those of our families and of our ancestors. Man needs such pride to sustain him in the inevitable hour of discouragement, in the moment when he faces obstacles, whenever life turns against him. Everyone has such moments. We manifest our pride in many ways, but always it supports and sustains us. The legitimate pride of the Indian people has been crushed too many times by too many of their fellow Canadians. The principle of equality and all that goes with it demands that all of us recognize each other's cultural heritage as a source of personal strength’ (Bowles, Richard P. et al., The Indian: Assimilation, Integration, or Separation? [Scarborough, ON: Prentice Hall 1972], 202)Google Scholar.
16 For example, Tao, Julia (‘The Chinese Moral Ethos and the Concept of Individual Rights,’ Journal of Applied Philosophy 7 [1990] 119–26)CrossRefGoogle Scholar argues that the traditional Confucian moral framework does not have concepts corresponding to the liberal concept of individual rights. The liberal concept of moral duty is readily translated from the liberal framework into the Confucian moral framework, but, as judged by the effort required to cobble together terms with equivalent meanings, the liberal concept of individual rights is not readily translatable. Tao locates the difficulty in the liberal conception of the self which, she argues, is seriously flawed from the Confucian perspective.
17 Boldt, Menno and Long, J. Anthony ‘Tribal Philosophies and the Canadian Charter of Rights and Freedoms,’ in Boldt and Long, The Quest for Justice, 174Google Scholar
18 Turpel, M.E. ‘Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences,’ Canadian Human Rights Yearbook 6 (1989-1990) 3–45Google Scholar; reprinted in Soifer, Eldon ed., Ethical Issues: Perspectives for Canadians (Peterborough: Broadview Press 1992), 332–33Google Scholar
19 According to Bruce Morito, traditional Aboriginal moral frameworks do not have concepts corresponding to the liberal concept of rights since Aboriginal people and liberals belong to traditions with radically different metaphysics concerning the nature of land. This is significant since ‘use of the term “right” may in fact pervert Aboriginal claim. If the language does not support a translation of “right” or even “justice,” “Aboriginal right,” if defined in terms of the European legal/political framework, cannot be an accurate representation of Aboriginal values, principles and practices’ (Morito, Bruce ‘Aboriginal Rights: A Conciliatory Concept,’ Journal of Applied Philosophy 13 [1996] 123–39CrossRefGoogle Scholar, at 124).
20 Lindberg, Tracey ‘What Do You Call and Indian Woman with a Law Degree? Nine Aboriginal Women at the University of Saskatchewan College of Law Speak Out,’ Canadian Journal of Women and the Law 9 (1997) 301–35, at 317Google Scholar
21 As Morito points out, the use of culturally foreign concepts by Aboriginal negotiators is rejected by more traditional Aboriginal people as compromising their cultural autonomy (123-4), and some Aboriginal negotiators fail to appreciate how they compromise the very cultures they aim to protect when they negotiate within a culturally foreign conceptual framework: ‘even some of those who appear to have adopted the European model of justice and who are criticized by hereditary leaders seem to conflate and confuse traditional frames of reference with European ones’ (ibid., 129).
22 Boldt, Menno and Long, J. Anthony ‘Tribal Traditions and European-Western Political Ideologies: The Dilemma of Canada's Native Indians,’ in Boldt and Long, The Quest for Justice, 334–5Google Scholar
23 Turpel, M.E. ‘On the Question of Adapting the Canadian Criminal Justice System for Aboriginal Peoples: Don't Fence Me In,’ in Royal Commission on Aboriginal Peoples (1993)Google Scholar
24 Monture-Okanee, Patricia A. ‘Reclaiming Justice: Aboriginal Women and Justice Initiatives in the 1990s,’ in Royal Commission on Aboriginal Peoples (1993), 113Google Scholar
25 Zion, James W. ‘Taking Justice back: American Indian Perspectives,’ in Royal Commission on Aboriginal Peoples (1993), 320–1Google Scholar
26 Tomasi, John ‘Kymlicka, Liberalism, and Respect for Cultural Minorities,’ Ethics 105 (1995) 580–603, at 599CrossRefGoogle Scholar
27 Isaac, Thomas ‘The Concept of the Crown and Aboriginal Self-Government,’ Canadian Journal of Native Studies 14 (1994) 221–50Google Scholar
28 On Kymlicka's theory, ‘minority rights [viz. group-specific rights for Aboriginal people] are only justified if some inequality in circumstances is present’ (Kymlicka, Liberalism, 219 n. 7)Google Scholar. His theory is a theory of Aboriginal rights within a multinational federation and applies on condition that Aboriginal people seek cultural autonomy within that federation. On the other hand, if Aboriginal people seek cultural autonomy outside that federation, then Aboriginal rights would be conceived differently. As I said in a qualifying introductory remark, Kyrnlicka's theory is best viewed as providing an important aspect of the multi-faceted concept of Aboriginal rights rather than the whole story.
29 Thomas, Lawrence ‘Moral Deference,’ in Pittman, John P. ed., African-American Perspectives and Philosophical Traditions (New York: Routledge 1997)Google Scholar
30 Plain, Fred ‘A Treatise on the Rights of the Aboriginal Peoples of the Continent of North America,’ in Boldt and Long, The Quest for Justice, 33Google Scholar
31 First Ministers’ Conference on Aboriginal Constitutional Matters, Unofficial and Unverified Verbatim Transcript, Vol. 1 (March 1983), 136; quoted in Asch, 27
32 Mercredi, Ovide and Turpel, Mary Ellen In the Rapids: Navigating the Future of First Nations (Toronto: Penguin 1993), 124Google Scholar
33 Erasmus, Georges ‘Twenty Years of Disappointed Hopes,’ in Drumbeat: Anger and Renewal in Indian Country, Richardson, Boyce ed. (Toronto: Summerhill 1989)Google Scholar; see also Mercredi and Turpel.
34 For further claims by Aboriginal people that membership in their traditional cultures is essential to their well-being and personal agency, see the following National Film Board documentaries: ‘No Turning Back: The Royal Commission on Aboriginal Peoples,’ directed by Coyes, Greg (Montreal: National Film Board of Canada 1997)Google Scholar; ‘In the Mind of a Child,’ directed by Marcuse, Gary (Montreal: National Film Board of Canada 1995)Google Scholar; and ‘Place of the Boss: Utshimassits,’ directed by Walker, John (Montreal: National Film Board of Canada 1996)Google Scholar. As well, see the comments by Aboriginal people in Stevenson.
35 Pauktuutit, (Inuit Women's Association), The Inuit Way: A Guide to Inuit Culture (Ottawa: Inuit Women's Association n.d.), 15–16Google Scholar; quoted in the RCAP 1996, vol. 2, part 1,119
36 Onis, Juan de The Green Cathedral: Sustainable Development of Amazonia (New York: Oxford University Press 1992)Google Scholar
37 This general point is endorsed in the RCAP 1996, vol.1, chap. 15.
38 Parts of this paper were presented to the Western Canadian Philosophical Association 1997, the Ontario Philosophical Association 1997, and the Canadian Philosophical Association 1998. I am grateful for helpful comments from several participants at these conferences and for helpful comments from an anonymous referee at the CJP. I want to thank David Checkland, Jim Dianda, Betty Harlow, May Yoh, Andrew Hunter, Chandra Kumar, and Sandra Tomsons for discussing earlier versions of this paper with me. I especially want to thank Jack Stevenson for writing several pages of incisive comments on two earlier drafts of this paper. I also want to thank Ryerson Polytechnic University for supporting the research of these issues through release time from other responsibilities.
