THE POLITICAL THEORY OF ABORIGINAL

RIGHTS LAW IN CANADA:

PROSPECTS FOR RECONCILIATION

S. Ronald Stevenson

Thesis submitted to the

Faculty of Graduate and Postdoctoral Studies

in partial fulfillment of the requirements

for the Doctorate in Philosophy in Law

Faculty of Law

University of Ottawa

© S.Ronald Stevenson, Ottawa, Canada, 2015

ii

Abstract

While the thesis will proceed with a step by step development of the core arguments from the

political theory literature, followed by a detailed analysis of corresponding issues in the

jurisprudence, it may help the reader to have a summary statement of the thesis argument from

the very start. The core argument is that the Canadian approach to constitutionalism reflected in

the model centered on Section 35 of the Constitution Act, 1982, provides a framework, a

methodology and a model for practice that could lead the Crown and aboriginal peoples within

Canada towards the elusive goal of reconciliation. This framework, rooted firmly in the

obligations of the nation-state, is materially different from most normative and legal literature

that tends to gravitate to positions that emphasize either the lack of legitimacy of the nation-state

or the lack of legitimacy of efforts to recognize aboriginal claims. In other words, this thesis

develops an argument for the practical utility of a “middle-ground” approach. This middle-

ground approach will depend on a novel interpretation of the foundational methodology adopted

by the Supreme Court of Canada to animate Section 35, a particular interpretation of the “nested”

relationship between Canadian domestic law, international law and indigenous legal systems and

a development of the embryonic emphasis placed on dialogical processes to resolve deep

disagreement about fundamentally disparate ontological and epistemological assumptions about

attachments to land. In other words, the thesis attempts to develop a constitutional framework to

support a practical blueprint to achieve a morally and politically defensible conception of

aboriginal rights. Rather than simply defending the constitutional status quo, the thesis will

develop what is intended to be a unified approach to Section 35 that will point the way towards

several crucial additions to the jurisprudential framework so it can enable the deep deliberation

that lies at the very heart of the best aspirations of Canadian constitutionalism.

iii

Acknowledgements

Writing this thesis has taken rather longer than I had planned and its completion has required the

absolute support of many who are close to me. Above all I have to thank my entire family, but

most importantly Bonita and Jamie without whose love and support I would have accomplished

nothing in my life. This work is dedicated to them.

I also owe a debt of gratitude to my employer, the federal Department of Justice, which has

supported this project in many ways. It goes without saying that the content of the thesis is

entirely my responsibility and at no point does the work represent positions of the Department of

Justice. The Department has always respected my freedom to take my thesis argument in any

direction I have chosen. However, my thinking has certainly been influenced by the many

talented professionals I have worked with every day of my career. A special thank you is owed to

the three Assistant Deputy Attorney Generals, Aboriginal Law, who have led the Aboriginal Law

Portfolio while I have been working on this thesis - Clare Beckton, Elizabeth Sanderson and

Pamela McCurry.

One of the benefits of the job I have held for the last 15 years is that I have had frequent contact

with some of the best scholars writing in aboriginal law and policy. Many of the people whose

work I have considered in writing this thesis I have been able to meet at annual conferences of

the Canadian Political Science Association, conferences organized by Demcon at the University

of Victoria and conferences organized by the Trudeau Foundation. A special debt of gratitude is

owed to the participants in the Federal Court initiative on oral history evidence. This provided an

invaluable opportunity to interact with highly respected elders from various aboriginal

communities, as well as many other people with deep experience and valuable insights. Teaching

has also provided an opportunity to test ideas and engage in debate. Co-teaching the graduate

level course in aboriginal law with Janna Promislow at Osgoode Hall Law School has been a

highly intellectually rewarding experience- not least because of the high calibre of students who

have participated in the various classes. I also would like to thank Bob Watts at Queen`s

University who asked me to speak to his public administration class on several occasions about

aboriginal law.

I would like to list some of the names of individuals who have contributed to the thesis argument

in some way or another. Many conversations have contributed to how I think about the challenge

of reconciling deep differences in points of view. Many of the individuals I mention would

certainly disagree with how I have used these ideas, but I value the exchange. I have certainly

inadvertently left some names out but their contributions have been appreciated as well. In

alphabetical order, I would like to thank Michael Asch, John Borrows, Jodi Bruhn, Avigail

Eisenberg, Hadley Friedland, Sari Graben, Sakej Henderson, Burke Hendrix, Peter Hogg,

Stephanie Irlbacher-Fox, Cathy Iorns, Tom Isaac, Dawnis Kennedy, Avery Kolers, Will

Kymlicka, Kiera Ladner, Jean Leclair, Mary Liston, Heidi Libesman, Patrick Macklem, Fiona

McDonald, Kent McNeil, Dwight Newman, Val Napoleon, Richard Ogden, Ian Peach, Dimitrios

Panagos, Daniel Salée, Ulla Secher, Karena Shaw, Brian Thom, Mary Ellen Turpel, Ria Tzimas,

Mark Walters, Grégoire Webber, Jeremy Waldron, Kerry Wilkins and Simon Young.

iv

There are, however, five scholars who have had a particularly deep and persistent influence on

how I think about the issues addressed in the thesis: Alan Cairns, Paul McHugh, Brian Slattery,

Jim Tully and Jeremy Webber. I do not expect that they would agree with all of the ideas

expressed in this thesis, nor do I agree with all of their ideas. However, each scholar has been

generous with their time and creativity. One of the great benefits of undertaking a project such as

the preparation of a doctoral thesis is that it provides a reason to seek out and engage with some

of the most creative and thoughtful people in one`s field. I am very grateful to have had this

opportunity and for the generosity of every person who has engaged in dialogue about the

normative challenge of finding a just and lasting reconciliation between aboriginal and non-

aboriginal Canadians. A special debt of gratitude is owed to the many aboriginal people I have

engaged with in the course of my work. Reconciliation really can only occur one conversation at

a time.

I would also like to thank the many colleagues who have helped me in the course of my

academic work, particularly Richard Boivin, Tim Christian, Laird Hunter, Marie LaForest, René

Morin, Margaret McIntosh, Eric Nôel, Michael Pare, Anne-Marie Robinson, Ann Snow, Daniel

Watson and Amy Westland. Invaluable support has been provided by Amanda De Bruyne,

Rebecca Morin, Karen O`Keefe and Craig Reynolds.

Thanks to the many friends who have helped along the way. Far too many to list, they have

always been eager to listen and encourage. A special thanks to those who came to support me

during my oral defence.

I owe special thanks to my thesis supervisor Brad Morse - he was always a source of support and

sage guidance. I also greatly appreciated the comments from and intellectual engagement with

the four members of the examination panel: Kirsten Anker, Sebastien Grammond, Peter Oliver

and Ghislain Otis.

Again, my deepest appreciation to Bonita and Jamie for standing by me through the long process

of bringing this project to completion.

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CONTENTS

PART I – THE POLITICAL THEORY OF RECONCILIATION ................................................ 1

CHAPTER 1 - INTRODUCTION .............................................................................................. 1

CHAPTER 2 – EXPLORING THE POLITICAL THEORY OF RECONCILIATION .......... 11

2.1 Introduction ................................................................................................................ 11

2.2 Critical Thinking on the Possibility of a Just Reconciliation Within a Settler State .. 13

2.3 Case Studies of Key Writers ....................................................................................... 22

James Tully ...................................................................................................................................... 22

Indigenous Critical Scholarshop ...................................................................................................... 33

Tracey Lindberg ........................................................................................................................... 34

Glen Coulthard ............................................................................................................................ 37

Karena Shaw.................................................................................................................................... 41

2.4 Critical Thinking on the Risks of Responding to Indigenous Difference .................. 43

2.5 Case Studies of Key Writers ....................................................................................... 47

Tom Flanagan ....................................................................................................................... 47

Gordon Gibson ................................................................................................................................ 52

John Richards .................................................................................................................................. 54

Frances Widdowson ........................................................................................................................ 56

Alan Cairns ...................................................................................................................................... 58

2.6 Can These Critiques be Reconciled? .......................................................................... 60

2.7 Focus on Specific Tools to Break Down the Divide .................................................. 67

CHAPTER 3 – CULTURE ....................................................................................................... 69

3.1 The Dominant Impact of the Work of Will Kymlicka ............................................... 69

Critique of liberal neutrality ............................................................................................................ 70

Derivation of group-differentiated measures from the value of individual autonomy. ................. 70

Concept of a societal culture .......................................................................................................... 71

Distinction between cultural minorities and national minorities ................................................... 71

vi

Distinction between external protections and internal restrictions.............................................. 72

Critical Evaluation of Kymicka’s Contribution ................................................................................. 72

3.2 Can Culture be Defined? ............................................................................................ 74

3.3 What is the Connection between Culture and Identity? ............................................. 75

3.4 Does the Nature and Degree of Cultural Difference Matter? ..................................... 75

3.5 What is the Relationship Between Culture and Race? ............................................... 76

3.6 Is Essentialism a Problem? ......................................................................................... 77

3.7 Problems with a Cultural Foundation of Rights ......................................................... 78

3.8 Case Study of Work by Courtney Jung ...................................................................... 79

CHAPTER 4 – PLURALISM ................................................................................................... 88

4.1 Introduction ................................................................................................................ 88

4.2 What is Pluralism? ...................................................................................................... 89

4.3 What is Legal Pluralism? ............................................................................................ 94

4.4 How is Comparative Experience Relevant to these Issues? ....................................... 99

4.5 What has been the Contribution of John Borrows to the Consideration of Indigenous

Legal Traditions? ................................................................................................................ 100

4.6 How Can Nicole Roughen’s Work on Legal Pluralism Help? ................................. 103

4.7 What Role does Legal Pluralism Play in Developing a Morally and Politically

Defensible Conception of Canadian Constitutionalism? .................................................... 106

CHAPTER 5 - CONSTITUTIONALISM .............................................................................. 109

5.1 Introduction .............................................................................................................. 109

5.2 Concept of Constitutionalism ................................................................................... 111

5.3 Treaty Federalism and Treaty Constitutionalism ..................................................... 113

5.4 Alternative Approach to Constitutionalism .............................................................. 120

CHAPTER 6 – HISTORICAL CLAIMS ............................................................................... 125

6.1 Introduction .............................................................................................................. 125

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6.2 The Political Theory of Historical Claims ............................................................... 127

6.3 The Common Law and Time .................................................................................... 137

Chapter 7 - RECONCILIATION, RECOGNITION AND REDISTRIBUTION ................... 150

7.1 Introduction .............................................................................................................. 150

7.2 The Concept of Reconciliation ................................................................................. 151

7.3 Recognition v. Redistribution ................................................................................... 158

CHAPTER 8 - CAUSATION ................................................................................................. 165

CHAPTER 9 - DIALOGUE ................................................................................................... 171

CHAPTER 10 – IS A SYNTHESIS POSSIBLE? .................................................................. 177

10.1 Introduction ........................................................................................................... 177

10.2 The Role of the Nation State ................................................................................. 179

International Law ......................................................................................................................... 182

Indigenous Law ............................................................................................................................ 182

Expressed Views of Indigenous Peoples ...................................................................................... 183

Consequences of Deep Interdependence .................................................................................... 183

Vantage Point and Support .......................................................................................................... 184

Nesting of Legal Orders ................................................................................................................ 185

Legitimacy, Equality and Sovereignty .......................................................................................... 186

10.3 Summary of Argument to this Point ..................................................................... 191

PART II – The Promise of Section 35 of the Constitutional Act, 1982 ..................................... 193

CHAPTER 11 – KEY PRELIMINARY QUESTIONS.......................................................... 193

11.1 Introduction ........................................................................................................... 193

11.2 Reconciliation and the Honour of the Crown ....................................................... 195

11.3 Has Section 35 Provided a Net Gain for Aboriginal Peoples? ............................. 203

11.4 Philosophy and Methodology of Section 35 ......................................................... 206

11.5 Approach to Indigenous Legal Systems ............................................................... 210

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11.6 Analysis of Sovereignty ........................................................................................ 210

11.7 Modern Distribution of Rights .............................................................................. 211

CHAPTER 12 - VAN DER PEET AND ITS CRITICS ......................................................... 213

12.1 Introduction ........................................................................................................... 213

12.2 Inappropriateness of Reliance on Rights .............................................................. 218

12.3 Ignoring Necessary Linkages to Indigenous Legal Systems ................................ 218

Case Studies of Three Indigenous Scholars ............................................................................... 219

Analysis ..................................................................................................................................... 223

12.4 Aboriginal Rights are Secondary to Some More Fundamental Right .................. 227

12.5 Rights are Insufficiently Generic and Overly Specific ......................................... 228

12.6 Aboriginal Rights are Flawed because they do not Accord Rights Available to

Nation-States ....................................................................................................................... 230

12.7 Inappropriateness of “Culture” as a Foundation for Rights .................................. 231

12.8 Interim Conclusion................................................................................................ 238

12.9 Emerging Rights Issues......................................................................................... 238

Commerciality .............................................................................................................................. 239

Self-Government .......................................................................................................................... 240

Damages and Historical Grievances ............................................................................................. 241

CHAPTER 13 - BREAKING DOWN THE BINARY DIVIDE ON TITLE ......................... 242

13.1 Introduction .............................................................................................................. 242

13.2 Overview of the Development of Aboriginal Title Jurispruduce in Canada ............ 244

St. Catherine’s Milling ............................................................................................................... 244

Calder ........................................................................................................................................ 245

Guerin ....................................................................................................................................... 249

Adams and Coté ........................................................................................................................ 249

Delgam’uukw ............................................................................................................................ 250

Introduction .......................................................................................................................... 250

Content of Aboriginal Title .................................................................................................... 251

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Proof of Title ........................................................................................................................ 257

The Land must have been occupied prior to Sovereignty ................................................... 258

Continuity ............................................................................................................................. 260

Exclusivity ............................................................................................................................. 261

Infringement and Justification .............................................................................................. 262

Concluding Observations ...................................................................................................... 262

Other Opinions ...................................................................................................................... 263

Commentary ......................................................................................................................... 264

Bernard and Marshall ............................................................................................................... 264

Tsilqot’in Trial Judgement ......................................................................................................... 270

13.3 What is the Current State of Play? ........................................................................ 270

13.4 The Standard Academic Model ............................................................................ 272

13.5 Core Questions to Guide Assessment of the Standard Model .............................. 274

Common Law Right, Constitutional Right or Both? ...................................................................... 275

One Route or Several? .................................................................................................................. 277

One Component or Several? ......................................................................................................... 282

Problems with Judicial Technique? ............................................................................................... 284

Reflections on the Generic Features of Aboriginal Title? ............................................................. 286

Collective Nature....................................................................................................................... 287

Inalienable ................................................................................................................................. 288

Inherent Limit ............................................................................................................................ 288

“Not Necessary to Decide the Precise Content” ....................................................................... 289

Summary ....................................................................................................................................... 289

13.6 Foundations for Proposed Model for Title and its Proper Role within the Section 35

Framework .......................................................................................................................... 290

Aboriginal Title is a Modern Right................................................................................................ 290

Relation Between Traditional Lands and Aboriginal Title ............................................................ 301

Aboriginal Title and the Spectrum of Rights ................................................................................ 304

The Duty to Consult and Aboriginal Title ..................................................................................... 310

13.7 Comparative Analysis ........................................................................................... 313

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Australian Case Law ..................................................................................................................... 313

An examination of McHugh on “Aboriginal Title” ....................................................................... 317

13.8 Assessment of the British Court of Appeal Decision in Tsilqot’in ....................... 323

Summary of Ruling ....................................................................................................................... 323

Assessment .................................................................................................................................. 328

13.9 Extinguishment, Infringement, Justification and Compensation ......................... 331

13.10 Conclusion ........................................................................................................... 334

CHAPTER 14 - ASSESSING THE PROMISE OF THE DUTY TO CONSULT ................. 336

14.1 Introduction ........................................................................................................... 336

14.2 Evaluation of the New Paradigm .......................................................................... 344

Introduction ................................................................................................................................. 344

Theory-based critique .................................................................................................................. 345

Doctrinal critique ......................................................................................................................... 345

Practical Critique .......................................................................................................................... 345

14.3 Practical Impact of the New Paradigm ................................................................. 346

14.4 Developing Standards for Accommodation .......................................................... 347

14.5 Impact on Environmental Law and Practice ......................................................... 348

14.6 Administrative Law and the Duty to Consult ....................................................... 353

14.7 Impact on the Legislative Process......................................................................... 355

14.8 Impact on the Remedies, Forum and Procedure ................................................... 356

14.9 Impact on Negotiations and Claims Resolution.................................................... 358

14.10 Impact on Broader Policy Development .............................................................. 360

14.11 Deepening Notion of Dialogue ............................................................................ 361

14.12 Impact on Economic Development ...................................................................... 366

14.13 Growing Merger of the Sparrow and Haida Frameworks ................................... 368

14.14 Are the Categories of the Honour of Crown Closed? .......................................... 369

14.15 Are we Seeing the Emergence of a New Constitutionalism? .............................. 371

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14.16 Conclusion ........................................................................................................... 373

CHAPTER 15 - ELDER TESTIMONY CASE STUDY ....................................................... 374

CHAPTER 16 - THE ROLE OF THE COURTS IN ADJUDICATING DISPUTES

INVOLVING SECTION 35 ................................................................................................... 382

16.1 The Roles of the Courts ........................................................................................ 382

16.2 Concluding Comments for Part II ......................................................................... 384

PART III - APPLICATION OF THE EMERGING SECTION 35 PARADIGM TO OTHER

ISSUES ....................................................................................................................................... 386

CHAPTER 17 – FOUR KEY DOCTRINAL ISSUES ........................................................... 386

17.1 Section 35 and the Protection of Aboriginal Self-Government ............................ 386

17.2 The Charter and Section 35................................................................................... 399

17.3 The Division of Powers and the Application of Provincial Law .......................... 406

17.4 Justification ........................................................................................................... 411

CHAPTER 18 - CONCLUSION ............................................................................................ 416

1

PART I – THE POLITICAL THEORY OF RECONCILIATION

CHAPTER 1 - INTRODUCTION

Canadian law pertaining to the rights of aboriginal peoples in Canada is in the midst of a period

of unprecedented and rapid change. From a legal perspective, the primary catalyst for change has

been the enactment of Section 35 of the Constitution Act, 19821. This thesis shall focus on the

legal developments that have followed the recognition and affirmation of the existing aboriginal

and treaty rights of the aboriginal peoples of Canada. While these developments are regarded as

extremely important both within Canada and the international community2, they must be placed

in a broader context. The response of the law to the claims of aboriginal people is just one part of

a much more complicated story about efforts to improve the relationship between aboriginal and

non-aboriginal Canadians.

There is increasing attention being paid to addressing the consequences of unfortunate legacies

in the historical treatment of aboriginal people in Canada. The most prominent, and arguably

promising, example is the apology and global settlement of many claims3 flowing from the

operation of residential schools in Canada.4 There is also a continuing recognition that the

current social and economic conditions of many aboriginal peoples across the country cry out for

attention.5 Most importantly, there is a strong tradition of advocacy by aboriginal peoples for

redress of their historical grievances.6 This advocacy played a large role in the domestic

constitutional recognition of aboriginal and treaty rights as well as a growing and powerful

recognition of indigenous claims at the international level.7

Because this thesis is primarily directed to the legal developments following the constitutional

recognition of existing aboriginal and treaty rights, it will be focussed on how the normative

evaluation of claims is related to the development of the jurisprudential framework. It can be

argued that there is no other area of the law where the relation between the jurisprudence and

theory is so complex and contested.

2

This thesis is an extended reflection on the question posed implicitly by Chief Justice Lamer in

the Van der Peet decision from the Supreme Court of Canada8

“…In his comment on Delgamuukw v. British Columbia (“British Imperial

Constitutional Law and Aboriginal Rights: A Comment on Delgamuukw v. British

Columbia” (1992), 17 Queen’s L.J. 350), Mark Walters suggests at pp. 412-413 that the

essence of aboriginal rights is their bridging of aboriginal and non-aboriginal cultures:

“The challenge of defining aboriginal rights stems from the fact that they are

rights peculiar to the meeting of two vastly dissimilar legal cultures, consequently

there will always be a question about which legal culture is to provide the vantage

point from which rights are to be defined. …a morally and politically defensible

conception of aboriginal rights will incorporate both legal perspectives.”9

What are the prospects of finding a morally and politically defensible notion of aboriginal rights

within Canadian constitutionalism? Now that we are well over a decade past that seminal

decision, and a full three decades after the enactment of Section 35 of the Constitution Act, 1982,

it is opportune to assess the degree of success of the Canadian domestic legal framework in

developing “a morally and politically defensible conception of aboriginal rights”10. It is highly

interesting, and rather ironic, that the central focus of sometimes scathing critique of the

normative and legal framework developed by the Supreme Court of Canada for the interpretation

of Section 35 aboriginal rights has been the Van der Peet decision itself. 11There is now a huge

literature that takes up the challenge reflected in the quotation from Mark Walters12. The

question of the relationship between theory and law has become even more important with the

increasing prominence of concepts such as reconciliation and the honour of the Crown13.

Canadian law is already highly engaged with theory and builds as much from normative analysis

as it does from precedent. It will be argued that this is one of the reasons that Canadian

aboriginal law is so complex and attracts such disparate and conflicting normative evaluations.

The challenge faced in this thesis is the assessment of two loosely connected but discrete bodies

of literature and practice. Strictly on the jurisprudential side, there is a massive body of critical

3

literature that engages with the emerging jurisprudential framework14. On the theory side,

primarily within the disciplines of philosophy and political theory, there is an even more

expansive literature that takes up the question of what is required to do justice with respect to the

moral and political claims of aboriginal peoples in what are frequently called “settler states”.15

There is certainly overlap between the two literatures. Analysis of jurisprudence is frequently

conducted in normative terms.16 On the other side, philosophers and political theorists make

frequent use of judicial decisions in developing normative arguments.17 In light of this overlap,

choices have to be made about exposition of material and development of argument. Given that

the primary argument of this thesis is that attention to the normative analysis of aboriginal claims

offers a powerful tool for the resolution of jurisprudential disputes, the first part of the thesis will

deal primarily with the normative framework. To set the context for this exposition, it might be

helpful to set out what areas of the jurisprudence are currently unsettled. It would be a

potentially important result if normative analysis could provide a vehicle to clarify and resolve

some of these legal issues. This is particularly the case when one notes the breadth of the issues

that remain unresolved in Canadian aboriginal law. Among the questions that remain unresolved

are:

What is the fundamental nature of an aboriginal right?

Does aboriginal title cover large traditional territories of aboriginal groups or is it limited to areas of highly intensive use and occupation?

Does an inherent right of self-government or sovereignty fall within the constitutional recognition and affirmation accorded by Section 35 of the

Constitution Act, 1982?

What role do indigenous legal traditions play in Canadian law?

Do provincial laws of general application apply to Indians and lands reserved for the Indians absent federal incorporation?

How are aboriginal and treaty rights reconciled with Charter equality norms?

4

What must governments do to justify infringements of Section 35 aboriginal and treaty rights?

These are just a sub-set of the questions that are currently being adjudicated in Canadian courts.18

It will also be seen that for each of these issues, and many others, there are an incredibly

disparate number of approaches prescribing a preferred resolution. And yet, while the questions,

at first glance, seem highly technical, it will be shown that their resolution is directly tied to

important questions of underlying theory. Indeed, one of the notable features of the Canadian

aboriginal law jurisprudence is that the Supreme Court of Canada has demonstrated an

awareness of the close linkage between theory and practice. This has had a profound impact on

the articulation of the constitutional framework governing the relationship between the Crown

and the aboriginal peoples of Canada. This has become increasingly the case with the prominent

use of the idea of reconciliation (and the related concept of the honour of the Crown) as a

guiding principle in the search for a normatively and politically defensible conception of this

relationship. Given the invitation to infuse legal analysis with insights from theory, and the

reliance on a theory-infused concept such as reconciliation19, it is reasonable to ask whether

work in philosophy, political theory and other disciplines can assist in the resolution of contested

issues in the law.

The bulk of the thesis analysis will be devoted to the analysis of key issues of Canadian

constitutional law pertaining to the nature and scope of aboriginal rights, the nature and scope of

aboriginal title, the protection of an inherent right of self-government, the application of

provincial law to Indians and their lands, the inter-relationship between the Charter of Rights and

Freedoms and the rights of the aboriginal peoples of Canada and, the proper approach to the

justification of infringements of the rights protected by Section 35 of the Constitution Act, 1982.

These issues were chosen in part for their intrinsic importance but also because they help

demonstrate important linkages between theory and practice.

5

Lying behind all of these issues is a fundamental argument about the importance of the decision

of the Supreme Court of Canada in Haida Nation v. British Columbia20 in developing a fresh

understanding of the promise of Canadian law to deliver a distinctive and meaningful approach

to reconciliation. While the introduction of a duty to consult and a duty to accommodate, where

appropriate, is extremely important in its own right, a range of deeper connections can be drawn

between this decision and key trends in the normative literature. The core argument will be that

Canadian law is capable of developing a distinctive approach to reconciliation by building on the

principles that are immanent in the Haida decision. An attempt will be made to link these

principles with some of the more promising developments in the normative literature in order to

argue that the decision may act as a springboard to move Canadian aboriginal law in a direction

that has a stronger normative foundation.

A cross-cutting theme throughout the thesis as a whole is how the methodology adopted by the

Supreme Court of Canada in the adjudication of Section 35 claims supports this focus on modern

dialogue by situating the interpretation of Section 35 aboriginal rights, including title, on modern

claims that are informed by, but not determined by, the historical content of the common law. It

will be argued that a truly distinctive approach to aboriginal rights, grounded in the key values of

reconciliation and the honour of the Crown, is designed to guide the Crown and aboriginal

peoples towards negotiated resolution of current claims and resolution of historical grievances.21

Some caveats are in order. First, it would be reasonable to question whether the issue has been

framed in an overly court-centered fashion. This is especially so since the courts themselves have

clearly expressed a preference that issues relating to reconciliation be worked out at the

negotiating table rather than in the courtroom.22 While there is merit to this concern, there are a

number of reasons to start with a focus on the jurisprudential framework. All of the activities that

are directed to the goal of reconciliation occur within an overall constitutional architecture that is

best discerned by close examination of the jurisprudence.23 Indeed, many of the normative

critiques levelled at Canadian law are directed to the alleged limitations and contradictions of

this constitutional architecture. As a result, one of the key arguments in this thesis will be that

6

movement towards reconciliation, assuming that aboriginal and non-aboriginal peoples can

develop a mutually acceptable conception of reconciliation, depends upon the existence of a

supportive architecture developed through the jurisprudence. That said, it must be remembered

that court decisions can fairly be described as “epi-phenomena” and huge normative issues must

be addressed about the role of the courts and the state in general in terms of the claims of

indigenous peoples.24

Second, a focus on the jurisprudence should not be seen as undermining the importance of the

key achievements that have already occurred in Canada. There have been a number of important

negotiated resolutions of long-standing claims.25 A public government providing a space for

Inuit self-government is now in operation in the territory of Nunavut.26 Literally hundreds of

negotiating tables addressing various aspects of aboriginal claims are active.27 A major Royal

Commission has addressed the position of aboriginal peoples in Canada in a comprehensive

fashion.28 However, while these achievements are frequently cited with admiration by observers

external to Canada, there is a pervasive sense in Canada that achievement still lags far behind

aspiration.29

Third, it is important to be cognizant of the limits of theory-based arguments in understanding

the development of the law. The common law, in particular, is notoriously resistant to the

influence of theory.30 At best, our understanding of the development of a complex and highly

interactive system can be, and perhaps only should be, partially theorized.31 While theory can

elucidate and inspire, as well as expose limits and blind-spots, it is highly doubtful that it would

be sufficient to move a complex system closer to the achievement of justice.32

Fourth, even if an argument can be developed for a conception of reconciliation that is a net

improvement in terms of normative justification, one still has to envisage the long process of

implementation in practice.33 Reconciliation is not an idea that is self-executing. Its satisfaction

requires much work based on mutual good faith. Even if a model is developed that offers fresh

7

approaches to reconciliation, it will only be meaningful if it produces actual resolution of claims

and the active support of aboriginal peoples in Canada. While this thesis can hardly aspire to

deliver a practical blueprint for the implementation of reconciliation in Canada, it is hoped that

the analysis of principle and the exploration of jurisprudential and constitutional possibilities will

at least act as guideposts to assist the journey.

Fifth, this thesis will be directed almost exclusively to the domestic law of Canada. This means

that the primary focus will be on the obligations of Canada as a nation state. However, this does

not mean that international law and indigenous law will be ignored. It will be argued that

indigenous law, Canadian domestic law and international law exist in a nested relationship that

offers opportunities for mutually reinforcing development.34 This may prove to be controversial

to those who see the resolution of the claims of indigenous peoples lying more exclusively in the

indigenous or international realm.35

Sixth, some important areas in the jurisprudence will not be discussed in detail, the most

significant being treaties and the fiduciary relationship between the Crown and aboriginal

peoples. With respect to treaties, their core importance will be addressed in relation to treaty

federalism theory36, but the current doctrine of treaty interpretation will not be addressed in

detail.37 The great divide between the parties concerning interpretations of particular treaties

requires extensive focus on the negotiating history of those specific treaties.38 With respect to the

fiduciary relationship, this shall be discussed in the context of the partial displacement of

fiduciary doctrine by new approaches to the honour of the Crown and the duty to consult39. Nor

will be the important issue of scope of the authority of Parliament to legislate for Indians and

Lands reserved for the Indians receive detailed consideration.40

Seventh, this work will neither be a work of political theory or philosophy nor traditional legal

analysis. It will generally not make predictions of where the courts seem to heading or make

recommendations concerning what they should do. The focus shall be on bringing two disparate

8

but overlapping bodies of work into conversation. In this light, it will primarily constitute a

reflection on possibilities and a consideration of their normative implications. It will be argued

that this work can frame a distinctive response to the challenge of finding a mutually acceptable

approach to reconciliation.

Eighth, care has to be taken to be mindful of the frequent dangers that can flow from mixing

normative and legal analysis. For example, Hendrix argues that existing law, even in a legal

system with extensive elaboration of the constitutional framework, “…will clearly not be

sufficient to cover anything like the full range of reasons that might be offered on either side.”41

He argues, however, that legal analysis can provide conceptual tools to frame inter-cultural

debate, though this will cease to be effective if one of the participants in the debate wishes to

challenge the very legitimacy of the legal and political system.42 It will be seen that legal

analysis and normative analysis are frequently blurred in practice. As previously noted, political

theorists very frequently use judicial decisions as case-studies to develop normative analysis.43

Constitutional law arguments, in particular, frequently take the form of normative argumentation.

It will be seen that several prominent theorists, from the humanities and law, present arguments

that amount to complex admixture of legal and normative reasoning.44

With these caveats in mind, while there are no shortage of opinions as to the best manner in

which to build on current achievements or to respond to failures to address what all admit are

pressing challenges, the range of options put forward are often radically inconsistent. An

examination of the theory literature will provide a partial explanation of why debate in this field

is so heavily contested and largely expressed in starkly binary terms. It is hoped that an

understanding of the intellectual factors that lie behind the public debates will provide tools to

reduce the distance between radically incommensurable solutions. While no single solution can

ever emerge out of such a process, it will be argued that close attention to the relationship

between theory and jurisprudence will pay dividends in terms of a better understanding of the

norm of reconciliation.

9

The argument of the thesis will be divided into three parts. The first part will look at the rich

body of literature dealing with the normative assessment of the claims of aboriginal peoples.

This literature is situated within a broader body of literature dealing with multiculturalism.45 The

second part will focus more specifically on the jurisprudence that has emerged and is developing

under Section 35 of the Constitution Act, 1982. A distinction will be drawn between core

questions pertaining to the interpretation of Section 35 and a second set of questions dealing with

other issues of Canadian constitutional law. The second set of questions will be dealt with more

briefly in Part III of the thesis and largely with the purpose of developing the argument about the

normative possibilities set in motion by the Haida line of cases. The basic argument is that there

are ample resources within Canadian constitutionalism to provide robust responses to the claims

of indigenous peoples in Canada.

While the thesis will proceed with a step by step development of the core arguments from the

political theory literature, followed by a detailed analysis of corresponding issues in the

jurisprudence, it may help the reader to have a summary statement of the thesis argument from

the very start. The core argument is that the Canadian approach to constitutionalism reflected in

the model centered on Section 35 of the Constitution Act, 1982, provides a framework, a

methodology and a model for practice that could lead the Crown and aboriginal peoples within

Canada towards the elusive goal of reconciliation. This framework, rooted firmly in the

obligations of the nation-state, is materially different from most normative and legal literature

that tends to gravitate to positions that emphasize either the lack of legitimacy of the nation-state

or the lack of legitimacy of efforts to recognize aboriginal claims. In other words, this thesis

develops an argument for the practical utility of a “middle-ground” approach. This middle-

ground approach will depend on a novel interpretation of the foundational methodology adopted

by the Supreme Court of Canada to animate Section 35, a particular interpretation of the “nested”

relationship between Canadian domestic law, international law and indigenous legal systems and

a development of the embryonic emphasis placed on dialogical processes to resolve deep

disagreement about fundamentally disparate ontological and epistemological assumptions about

attachments to land. In other words, the thesis attempts to develop a constitutional framework to

support a practical blueprint to achieve a morally and politically defensible conception of

aboriginal rights. Rather than simply defending the constitutional status quo, the thesis will

10

develop what is intended to be a unified approach to Section 35 that will point the way towards

several crucial additions to the jurisprudential framework so it can enable the deep deliberation

that lies at the very heart of the best aspirations of Canadian constitutionalism.

An overlapping theme developed in this work is that the introduction of a constitutional duty to

consult and accommodate the potential rights of the aboriginal peoples of Canada has

dramatically increased the possibility of generating a positive response to the question raised by

Chief Justice Lamer.46 The literature from other disciplines, particularly political theory and

philosophy, will be drawn upon frequently as it provides a useful frame to assess the

opportunities and constraints of Canadian constitutionalism. It will be seen that some of this

literature, particularly when read with the emergence of a new paradigm based on the Haida line

of cases, helps to provide normatively attractive answers to some of the most important

unresolved legal and constitutional questions pertaining to the relationship between the Crown

and aboriginal peoples in Canada today.47

11

CHAPTER 2 – EXPLORING THE POLITICAL THEORY OF RECONCILIATION

2.1 Introduction

It is notable that Canadians have played a global leadership role in the development of the

literature on the implications of recognition and multiculturalism. Among the most influential

contributors include Charles Taylor, Will Kymlicka and James Tully.48 More recently, an

important cadre of indigenous scholars, such as Sakej Henderson and John Borrows, have

broadened this contribution.49 However, it is important to reflect on the critique of Mark Francis

that this work has limited potential for export because it tends to be too narrowly tied to the

structure of constitutional and political debates that are particular to Canada.50 However, the

focus of this thesis is less the potential export of Canadian normative analysis and more the

particular normative possibilities that can be generated within the Canadian constitutional order.

The approach that will be adopted in this part of the thesis will be to first explore the main lines

of critique raising doubts about the possibility of meaningful reconciliation in a “settler state”

such as Canada, to be followed by an assessment of the writers who argue that existing

accommodations of indigenous difference may have already gone too far.51 This introduction of

several complex bodies of literature is designed to make the point that a deep binary divide exists

on normative analysis and that this largely reflects a similar divide that is easily perceived in

legal and constitutional debate involving aboriginal issues. It is submitted that a clear diagnosis

of the nature of this divide, and the fact that it plays an overriding role in both normative and

legal analysis, is an essential first step towards developing ways forward.

One of the key techniques to move forward will be the analysis of several key concepts that help

draw out the fundamental differences that dominate the literature and practice.52 These include

the role of culture, the importance of pluralism, the nature of constitutionalism, the status of

claims to remedy historic injustice, the relationship between values such as reconciliation,

12

recognition and redistribution, the relevance of social theories about the causation of harm and

the importance of dialogue.

The final section of this part will provide a transition from a consideration of the normative

literature to an examination of the doctrinal choices that are available within the architecture of

Canadian constitutional law. Though other approaches have been proposed, it will be argued that

it is appropriate to regard the state as primarily responsible for providing a response to

indigenous grievances. This approach will directly affect the interpretation that is offered in this

thesis of fundamental values such as legitimacy, equality and sovereignty. It will be seen that the

same themes are addressed within Canadian constitutional law but from a different disciplinary

perspective. Frequently, the issues will be precisely the same. For example, how does the law

respond to deep attachments that aboriginal peoples have to the land? How does Canadian

constitutional law respond to the continuing existence and relevance of indigenous legal

traditions? What steps must be taken to respect the distinctive traditions of aboriginal peoples? Is

the application of the Charter of Rights and Freedoms to aboriginal peoples an unwarranted

intrusion? It is hoped that addressing such questions, and others that are equally intractable,

immediately after a thorough review of the normative literature, will open up previously unseen

possibilities. A consistent theme will be the importance of dialogue as a vehicle to uncover and

maximize the normative potential of these possibilities53. It is also hoped that a demonstration of

how some of these difficult issues might be worked out in the context of a developed

constitutional order might offer some insights into the normative analysis as well, aided by more

paying more explicit attention to the relationship between normative and legal analysis. In

totality, this thesis is an exercise in “second best” analysis.54 Granted that no immediate blue-

print exists for a perfect normative or legal resolution of the deeply intractable problems which

are reflected in the unresolved relationship between aboriginal peoples and the Canadian state, it

is hoped that, in the useful metaphor provided by Kiera Ladner, “stepping stones” might be

provided to ease our way over the turbulent waters.55

13

2.2 Critical Thinking on the Possibility of a Just Reconciliation within a Settler

State

There is a massive literature that develops a common theme expressing deep scepticism about

the possibility of finding any meaningful reconciliation of the claims of indigenous peoples in

what are frequently called “settler states”.56 Much of this literature can be associated with the

“left” of the political spectrum, though there is good reason to be sceptical about the utility of a

simplistic left-right divide when dealing with the claims of indigenous peoples. It will be seen

that some scholars who claim to speak from the political left adopt a set of principles which are

not sympathetic to the claims of indigenous peoples.57 Likewise, there are strands of thinking

often affiliated with the political left which do not offer much support for protection of

indigenous difference.58 After all, these are just labels. The most can be said is that there is a

very loose correlation between identification with the political left or right and support for or

scepticism about indigenous claims.

There is rich diversity in this literature but the key focus of thinking goes back to an argument

about the illegitimacy of the original dispossession of indigenous peoples by various European

powers. Ross Poole has called this the “original sin” of the settler state59. Core and recurrent

ideas include the lack of indigenous consent to the current authority of the state, the lack of a

moral justification for the legitimate acquisition of sovereignty and territory and the failure to

accord equality to indigenous and non-indigenous nations. Even the use of the word “of” in

Section 35 which refers to the Aboriginal peoples of Canada would be problematic from this

critical perspective. Many commentators would dispute, from a variety of perspectives, the

explicit assumption that the indigenous peoples who currently reside within the boundaries of

Canada are included within its constitutional framework. Others would dispute the ability of

Canadian constitutional law to make such inclusion meaningful. While the argument takes many

forms, it is common-place to see deep scepticism about the redemptive possibilities of the law of

a setter state.

14

It is useful to contrast the core themes of this critical thought with the perspective reflected in the

oft-quoted foundational observation of Will Kymlicka, usually described as “Kymlicka’s

constraint”

“For better or worse, it is predominantly non-Aboriginal judges and politicians who have

the ultimate power to protect and enforce Aboriginal rights, and so it is important to find

a justification of them that such people can recognize and understand. Aboriginal people

have their own understanding of self-government drawn from their own experience and

that is important. But it is also important, politically, to know how non-Aboriginal

Canadians- Supreme Court Justices, for example- will understand Aboriginal rights and

relate them to their own experiences and traditions…On the standard interpretation of

liberalism, Aboriginal rights are viewed as matters of discrimination and/or privilege, not

of equality. They will always, therefore, be viewed with the same kind of suspicion that

led liberals like Trudeau to advocate their abolition. Aboriginal rights, at least in their

robust form, will only be secure when they are viewed, not as competing with liberalism,

but as an essential component of liberal political practice.”60

Many of the writers examined in this section would balk at the normative appropriateness of

framing the problem in this way.61 For example, Dwight Newman argues that this approach gives

insufficient weight to the need to engage in deep intercultural dialogue to address important

grievances.62

The recurring theme is that the state is an instrument of injustice and not reform. Whether drawn

from post-colonial, post-modern or critical race theory, there is a strong presumption that the

state is a product and captive of deep structural imperatives that prevent radical change.63 Within

this model, reform is often seen as something that is primarily motivated to ward off pressure for

more far-reaching change. While there is a huge literature to draw from, the work of James Tully

and Karena Shaw will be explored in more detail in order to develop some of the key themes

from this literature.64 Recent indigenous thought shows much commonality with various critical

theories but is generally best seen as genuinely autonomous. The key elements of this thought

will be introduced in the discussion of the author Taiaike Alfred, as well as several other scholars

who write within a “resistance” paradigm.65

15

Before turning to these authors, the following is an attempt to draw out some of the key ideas

that dominate the part of the critical literature on indigenous claims that is sceptical of the

normative possibilities available within the “settler state”. These ideas will be presented in

summary form and various nuances will be developed in the footnotes.66 Some of these include:

1. Ideas, in particular ideas linked to liberal theory, played a prominent role in the justification of dispossession of indigenous peoples.

There is a huge body of literature on the role that emerging liberal theory played in the

justification of the dispossession of indigenous peoples.67 Key examples include the development

of Locke’s labour theory of property acquisition which was used to privilege agricultural uses of

land and to dismiss claims to title based on less intensive indigenous uses of territory.68 These

ideas eventually were associated with doctrines such as the Discovery Doctrine 69and fed the

impression that lands were terra nullius in a legal sense though they were clearly occupied by

indigenous peoples.70 Some scholars go further and argue that the encounter of Europeans with

indigenous peoples was actually constitutive of modern liberal theory.71

2. Racist and false views of indigenous societies, often based on narrow evolutionary theory and racist notions of progress and hierarchy, lay at the heart of indigenous

dispossession.

From the very early debates at Valladolid, there were continuing controversies about the status

and prospects for spiritual salvation of indigenous people.72 By the 19th century, these attitudes

had hardened into evolutionary theory that contrasted the ways of life of indigenous people with

the civilized societies of Western Europe.73 Words such as “savagery” and “barbarism” entered

common parlance and public policy was oriented to the goal of assimilation.74

16

3. Early international law was contaminated and its development was constrained by these views.

In addition to not fully recognizing the human status of indigenous individuals, the state system

and the international law that it generated fell short of recognizing the collective status of

indigenous societies and, indeed, developed doctrines to support European expansion. Westra

argues that “Conquest, colonisation and confiscation were based on these doctrines”75. In turn,

“This practice led to a Eurocentric positivist school of international law in the nineteenth century

justifying the dispossession of the indigenous peoples.”76 International law supported the stable

expansion of European powers at the cost of the indigenous peoples who had occupied and

governed these lands. Though there are significant variations in emphasis, the core claim is that

the colonial acquisition of indigenous territory is irreparably flawed by reliance on tainted

doctrines such as discovery, terra nullius and settlement.77 Some argue that even if these

acquisitions could be regarded as legitimate based on the international norms that were extant at

the time, once those norms are exposed as inextricably tied to factual mistakes and racist

assumptions about the nature of indigenous societies, they should not be relied upon to prevent

modern redress for the claims of indigenous peoples who have been seriously prejudiced by the

application of and reliance on this international law framework78. Some go further to argue that

the suspect doctrines were not even supported by the international law of the period during

which indigenous territories were taken.79

4. Practices of consolidation of power and attempted assimilation of indigenous peoples rapidly followed.

Though there are differences in practice in various parts of the world, the development of

colonial governments and the consolidation of power eventually gave way to aggressive

programs of assimilation and elimination.80

5. This origin constitutes a continuing stain on the legitimacy of the settler state.

17

The core idea that is expressed here is that an illegitimate foundation of a nation is a permanent

blot on its ability to claim legitimacy today.81 It is frequently asserted that this legitimacy gap has

legal as well as normative consequences82.

6. The present constitutional structure of “settler states” is irreparably founded on these ideas.

The ideas that supported the dispossession of indigenous peoples are alleged to be still operative

in the functioning of the constitutional order of the settler state. The doctrine of discovery, the

depreciation of indigenous occupation of lands and the inability to see indigenous legal orders

are still playing a regulative role today.83 While one can dispute these particular assertions, it

must fairly be acknowledged that a proponent of the reconciliatory possibilities of Canadian law

has a tough challenge to meet. After all, Canadian law, or its predecessors, certainly played a

foundational role in the gradual displacement of aboriginal peoples from their territories, in the

suppression of their forms of governance and social organization and in their current position at

the bottom of most scales of social, health and economic performance.84

7. The rigidity of existing structures is reinforced by capitalist imperatives.

Though this idea is not given equal weight by all authors, there is a significant undercurrent

dealing with the adverse effect on indigenous peoples caused by the alignment of state interests

with the interests of global capital.85

8. The net effect of all of these factors is that there are very limited possibilities for reform within the settler state, and that any attempts at reform tend to have the effect

of reinforcing unjust colonial relations.

Because of the structural factors that create huge constraints on the ability of settler states to

respond positively to indigenous claims, many scholars tend to regard attempts at reform as

18

deepening and reinforcing colonial relationships. Elizabeth Povinelli has coined the evocative

phrase “the cunning of recognition” to capture the essence of this idea.86 From this perspective, it

is necessary to look past what is characterized as an effort to respond to indigenous claims, or the

claims of other marginalized groups, to see the real purpose of the reform. This is usually seen as

deflection of attention away from pressure for more radical and transformative change.87

9. Incommensurable cultural differences tend to stand in the way of adequate conversations to address issues of historical and present injustice.

Particularly in the case of indigenous claims, fundamental dichotomies in ontology, theories of

knowledge and spiritual worldview are alleged to make truly mutual inter-cultural conversation

difficult, if not impossible.88 The difficulties of mutual comprehension and translation are

highlighted by the notion of cultural relativism that dominates modern anthropology and the

observation that “all knowledge is local” from post-modern theory.89

10. Any conversations are further hampered by deep disparities in access to resources and power.

Even when it is possible to get over the conceptual barriers to effective inter-cultural dialogue,

the indigenous participants in the dialogue are constrained by fundamental inequalities in

negotiating power.90 This is seen to be particularly compelling when representatives of the state

sit on the other side of the table.

11. The backdrop of such conversations is a narrative of national origin that leaves little space for indigenous peoples.

Recent political theory has sharpened the focus on the importance of narrative.91 The nation is

conceived of as an imagined community.92 Our imagination and the possibilities we can see are

greatly coloured by our narratives of origin or commencement. It is frequently alleged that the

19

participation of indigenous peoples in the creation of the country is erased in the story that the

settler state tells about itself.93 These narratives are exposed as based on pernicious assumptions

about the primitivism and savagery of aboriginal peoples.94 These national narratives massively

constrain the recognition of possibilities in the present. As Borrows has observed “There is

nothing that could be more arbitrary than one nation taking half a continent from other nations,

and then leaving them with next to nothing to show for it, all without an elementarily persuasive

legal explanation.” 95 We will see that James Tully has played a key role in explaining how

social contract theory provided ideological cover for the dispossession of indigenous peoples by

European powers.96 Michael Asch has developed this theme by arguing consistently that

assumptions of primitivism continue to operate in the contemporary adjudication of aboriginal

claims.97

12. Particular problems of legitimacy are present for adjudicative mechanisms such as the courts.

One of the consequences of the role of the law in the justification for and development of a

colonial relationship with indigenous peoples within the settler state is that the courts of that state

are seen as having no ability to discharge their functions in an independent manner in a dispute

between an indigenous people and the state itself.98 This point is part of a larger normative and

political debate about the appropriate role of the courts in a liberal democracy but the problems

are more acute when indigenous claims are in issue.99

13. The net effect of all of the above is that there is a double standard with respect to the rights of nations without states and nations with states.

The notion of a double standard is one of the most frequently pressed themes in the critical

literature.100 Nations with statehood status are argued to have access to rights, authorities and

powers that are denied to nations without states. The only way to justly redress this double

standard is to take steps to extend the same rights, authorities and powers to indigenous

20

nations.101 The mere fact that indigenous nations do not act through a state form is consistently

regarded as an arbitrary and unjust basis to refuse such an extension.

14. This notion of “double standard” is also reflected in the frequent reliance on “immanent critique” 102

In addition to being unjust simply on the basis of formal egalitarian arguments (like must be

treated alike), the double standard argument is bolstered by the observation that states have made

normative commitments that are often reflected in constitutional text and constitutional principle.

Denial of indigenous claims is seen to breach these normative commitments. Critique is

“immanent” because it is drawn from the core precepts that animate the constitutional order. 103

15. The effect of these problems is that indigenous peoples’ claims are misrecognized as equivalent to those of cultural minorities.

The counterpart to Aristotle’s injunction that likes be treated alike is that those who are unlike

should be treated differently.104 While the indigenous nation and the non-indigenous nation with

a state must be treated alike, an indigenous nation and a cultural minority must be treated

differently105. The fact of prior occupation and governance makes an indigenous nation

fundamentally unlike a cultural minority. To equate their position in a settler state is a very

fundamental act of mis-recognition.106

16. These propositions lead inexorably to the conclusion that reform, accommodation or reconciliation is simply not possible within the state structure of a country like

Canada.

There is an internal logic to a pattern of thinking which isolates the flaws in the commencement

of a system, sees these flaws as embedded in the continued development of the system and

postulates an overriding intention for the system to preserve itself. While a functioning liberal

21

democracy is rather more complex than a singular “system”, there are deep currents in the

literature that reduce this complexity to a simple dichotomy between support for a system or

wholesale rejection of a system.107 This logic model simply leaves no room for reform.108

17. In the absence of any expectation that reform can be generated within the nation-state and its system of constitutional law, resistance, oppositional tactics and

coalition building are preferred remedies.

As we elaborate on these propositions, we will see some large intellectual shadows looming over

the debate.109 The rise of post-colonial thought, post-modern and structuralist critique of

modernity, critical race studies and critical legal studies all combine to reinforce the deep

scepticism about the possibility of “reform from within”. 110 It is common to see cautions to

avoid using the “master’s tools”111. Political theory, within this family of work, is written from

the perspective of the disadvantaged.112

18. These lines of argument are reinforced by the emergence of strong traditions of pluralism in legal analysis.

Scholars have begun documenting indigenous forms of governance not as historical artefact but

as modes of social organization that compete with the nation-state for the allegiance of members.

This is accompanied by a strong normative critique of the assumption that the nation-state

provides a unitary focus for the legal regulation of complex, multicultural communities. Much of

the renewed focus on legal pluralism comes from Quebec, but it is gaining traction in other parts

of the country as well.”113

Though there is considerable variation as to the extent that various writers endorse all elements

of this logic chain, the conclusion that is almost universally reached is that the massive

legitimacy gap can only be addressed by full recognition of the inherent right of indigenous

peoples to freely choose their own form of democratic accountability, up to and including full

22

secession from the settler state.114 Though emphasis differs between different authors,

recommendations usually cover the recognition of the prior and continuing sovereignty of

indigenous peoples, acceptance that Canadian laws cannot legitimately apply without the explicit

consent of indigenous nations, the adoption of fundamentally different theories of constitutional

foundations such as “treaty federalism”, the recognition of the continued application and priority

of indigenous law or a call to regulate relations solely by reference to principles of international

law.115 A few go further and suggest that “newcomers” should commit to a “leap of faith” and

place the question of whether and on what terms they can stay squarely in the hands of the

indigenous peoples who own the land.116 Another important strand in the literature is the

exhortation by non-Indigenous people to undergo a process of personal decolonization.117

It can be seen that these lines of critique, while worthy of careful reflection, are highly binary in

nature. Any attempt at change can be read as a mask for the avoidance of deeper challenges or

changes. Justice cannot emerge from within the state system. A state can only do justice within

its authority by renouncing its very sovereignty. In order to develop these themes with more

precision, several authors who have had a particularly strong influence in developing these lines

of critique shall be considered more comprehensively.

2.3 Case Studies of Key Writers

James Tully

James Tully is one of the most prolific and influential writers who addresses the position of

indigenous peoples within settler states. Tully’s work is particularly important because it has had

a demonstrable influence of the development of the theory of indigenous rights in multiple

jurisdictions and clearly has played a large role in the development of thinking among academics

and activists in Canada, and beyond.118 Tully has also played a direct role in the development of

public policy as a leader on the staff of the Royal Commission on Aboriginal Peoples119 and his

23

engagement with critique of existing claims processes.120 His work is also particularly interesting

for this study because he is far more inclined to engage directly with legal materials than many

other political theorists who write about indigenous issues.121

The contribution of James Tully is developed in a number of highly influential books and

articles.122 While his interest initially focussed on the history of political thought, the work is

deeply influenced by modern moral and political challenges. His intellectual influences include

the Cambridge school123, republican theory124, deliberative democratic theory125 and continental

philosophy.126 The two aspects of his work that are particularly important for this study are his

consistent focus on the formative role played by the idea of constitutionalism and the

development of his argument through a careful examination of the claims of indigenous peoples.

While it shall be seen that there has been significant development in his view of the

reconciliation of indigenous and non-indigenous claims, it is necessary to start with what many

regard as his masterwork: Strange Multiplicity: Constitutionalism in an Age of Diversity, which

was published in 1995.127 This is an eloquent and evocative book that reflects on the political and

normative implications of the narrative that is inspired by the key work of the Haida sculptor Bill

Reid: The Spirit of Haida Gwai.128 From this work, he develops an image of a “multi-logue” of

voices, clamouring for recognition and seeking to continue a common journey. It takes the form

of an extended reflection on the idea of constitutionalism. He seeks to contrast the stifling

uniformity that is created by what he calls “modern constitutionalism” with a more subtle,

dialogical model that he calls “ancient constitutionalism”. 129 Modern constitutionalism is linked

to the core idea of classical liberal thought that organizes politics around equal individuals living

under and governed by equal states.130 This approach to constitutionalism is characterized by a

bias towards norms of equal treatment of all individuals, regardless of their personal

characteristics.131 The emergence of an “empire of uniformity” is closely associated with the

historical evolution of European Imperial power.132 Indeed, one of the strengths of Tully’s

analysis is the careful exposition of the role that theorists such as John Locke played in providing

the ideological justification for the colonial expansion of European powers in lands that were

occupied and governed by indigenous nations.133

24

Tully argues that seven features of modern constitutionalism “…have been woven into the

constitutional fabric of constitutionalism over the past three centuries.”134 First, “…the people

are taken to be a society of equal individuals in a state of nature, behind a veil of ignorance or in

a quasi-transcendental speech situation prior to the constitution, and with the aim of constituting

one uniform political association.”135 This is linked to the idea that “…the people are seen as a

community bound together by an implicit and substantive common good and a shared set of

authoritative European institutions, manners and traditions of interpretation.”136 The second

feature of modern constitutionalism is that “…it is defined in contrast to an ancient or

historically earlier constitution.”137 This earlier order is described as “…in a state of nature,

primitive, rude, savage, traditional or underdeveloped, depending on the theorist.”138 The third

feature of modern constitutionalism is that its uniformity is contrasted with the irregularity of the

earlier order.139 The fourth feature is that modern constitutionalism relies on a theory of progress

to explain the movement from reliance on custom to the creation of a uniform legislative

order.140 The fifth feature is that “…a modern constitution is identified with a specific set of

European institutions; what Kant calls a ‘republican constitution’.”141 The sixth feature is that

“…a constitutional state possesses an individual identity as a ‘nation’”142 The seventh and final

feature of modern constitutionalism is that it “…comes into being at some founding moment and

stands behind- and provides the rules for- democratic politics.”143

From these seven features, we see a more carefully articulated version of the approach to

constitutionalism that most practicing lawyers in the common law tradition bring to the law.144

Tully contrasts this approach with what he calls “ancient constitutionalism”. This version of

constitutionalism is illustrated by the forms of inter-cultural dialogue that characterized the

interactions between indigenous peoples and Europeans in the early years of their contact. Legal

scholars have described these norms as a form of inter-societal law.145 Tully argues that our loss

of this constitutional language and our implicit reliance on the homogenizing tendencies of

modern constitutionalism have occluded perception of injustice and prevented the emergence of

practices to legitimately recognize deep diversity. He argues that “… (T)his hidden constitutional

language can be reconstructed to change our vision of a constitution and dissolve the

impasse.”146

25

As a matter of legal history, the more flexible norms of ancient constitutionalism were eclipsed

by the “empire of uniformity”.147 However, he argues that it would be a mistake to regard

constitutional traditions as solely imperial.148 The more flexible norms of the past are available

for “rediscovery” and to be pressed into service to provide modern solutions to deeply rooted

problems.149 As a matter of intellectual history, he points out that humanist theorists had

provided an alternative, relying on commitments to dialogue, to the monolithic theory of Thomas

Hobbes. Quentin Skinner reflects on the results of this debate by observing the emergence of

“...the shift from a dialogical to a monological style of moral [and political] reasoning”.150 Tully

closes this circle by arguing that the “…theorists of modern constitutionalism followed on

Hobbes’ footsteps