Self-Determination and Treaty-Making

Self-Determination and Treaty-Making: Consent and the Resolution of Political Relations between First Nations and Canada Michael Asch Department of Anthropology University of Victoria

Introduction

In order to set the context for my remarks, let me begin with a quick review of the relationship that we seek. As I see it, the goal is to reach an agreement based on voluntary consent that enables us all to live within the geographic region of Canada. i

The ultimate objective, at least as it is expressed as an initial condition, is to establish such a relationship without itself causing the dissolution of Canada. That is, we seek an agreement that not only enables us to co-habit the same territory, but actually to live together within a polity, mostly likely configured as a confederation.ii And we seek to achieve this on the basis of mutual consent, voluntarily given.iii

This paper is aimed at describing, in a preliminary way, how “voluntary consent” might be understood in this context. I will argue that rather being than a single act, it is a process intended to move the parties closer to an objective that becomes more defined as it progresses. It is one that proceeds as much through consensus as by formalized events, although the latter will likely play a crucial role by marking key moments along the way.

I will begin by outlining in abstract terms how I would define “voluntary consent” within the terms of “Consent and the Relational Definition of Self” as it is aptly characterized in

Jeremy Webber’s discussion paper. It will indicate that, under initial conditions,

“voluntary consent” is a process undertaken with urgency, for, without it, the relationship

1 Asch- Challenges of Consent Discussion Paper f2.1 between Self and Other necessary for the formation of society cannot be established. I will then turn to how this sense of urgency to enter into a relationship is reflected in the standing of Canada with respect to the Indigenous peoples within (all of whom I will call for convenience, First Nations). In this regard, I will raise two specific matters: the manner in which Canada now imagines that relationship; and the manner in which that relationship is altered once we accept that First Nations have the same right to self- determination of colonized peoples as is enshrined in United Nations’ Declaration 1514

[XV]. With these points in mind, I will finally turn briefly to the explicit topic; how to understand “voluntary consent” in the context of building a relationship among societies that already exist, when one, a newcomer, wishes to inhabit lands already occupied by others. In this regard, I will indicate the centrality of the “Consent as a Grounded Form of Life” perspective as described in Webber’s discussion paper as well as the concept of

“Treaty” as I have come to understand it.

Consent, the Relational Definition of Self, and the Origins of Society Argument

I am grateful to Jeremy Webber for providing such a clear framing of theoretical positions concerning the basis for consent, and particularly for including various perspectives on the origins of society argument. While accepting the limitations of any approach that begins with a concept such as this, it also represents an abstract model that, like the idea of consent, maintains a place of prominence in Western political, legal and social thought. Here, I will outline a way to frame “voluntary consent” when the “origins of society thought experiment” is approached from the perspective of a relational ontology. It is a perspective consonant with the perspectives of Buber, Lévinas, and, to

2 Asch- Challenges of Consent Discussion Paper f2.1 the extent I have read his work, Bakhtin. It is, however, derived more explicitly from the work of Marcel Mauss, particularly his essay The Gift, and Lévi-Strauss, and as historical antecedents, Durkheim (in terms of forms of solidarity, and isolating the collective Self as distinct from the individual Self) and Marx (in terms of the formative role for society played by relations of production). It is a tradition in which theorists, unlike in much of the field of anthropology, address the idea of the origins of society in abstract, theoretical terms (for an abbreviated discussion of the origins of society argument and its typical counter argument in Anthropology, see Appendix I).

In brief, the key argument is raised in Lévi-Strauss’ The Elementary Structures of

Kinship. In it, Lévi-Strauss constructs a thought experiment in which he contends that society arises at the moment when consciousness of the incest taboo compels humans to find marriage partners from outside one’s own family in order to reproduce the species.

In this sense, society arises as the joining of two parties, each incomplete without the other, and each required for the success of the project to maintain a relationship of autonomy and connectedness with the other.iv

In this approach, the “transition” to humanity is co-terminus with the origins of society, for both only occur when Self realizes, because of the incest taboo, that it cannot continue to exist without a rule-governed relationship with Other. For this reason, mutual consent, voluntarily given, is the essential initial condition for society, and it occurs at the very moment that society comes into existence.

3 Asch- Challenges of Consent Discussion Paper f2.1 Given that society occurs at the moment of human consciousness, it is not possible to consider “voluntary consent” as a kind of deliberative act. Rather, it would seem, given that all Selves find themselves immediately vulnerable and dependent on Others, that there is an urgency, born of necessity, that provides the motivation to enter in the consensual relationship that constitutes society. Nor is it necessarily a deliberate act, for here, the emergence of society appears not as intentional act, but an unintended consequence of doing something else (the construction of a rule system based on the necessity to find marriage partners). It is, if you will, a contingent, dependent factor.

Thus, in Lévi-Strauss’ thought experiment on the origins of society, as I have come to understand it, voluntary consent, mutually given, is an urgent matter. Indeed, society cannot emerge without it. And, given that society itself is a contingent factor, voluntary consent cannot be seen as so much an “act” as a “process,” through which society comes into being.v

With this model in mind, let me turn to the role of voluntary consent in the relationship between First Nations and Canada. I begin with a brief account of its salience it is represented in post-Calder era jurisprudence.

Canada’s Sovereignty and Consent of Indigenous Peoples

Canada’s relationship with First Nations is, in the first instance, not grounded in law on voluntary consent. This is true even if one excludes treaties of cession –and one should not do so as their terms are in dispute,- for Canada does not acknowledge that its

4 Asch- Challenges of Consent Discussion Paper f2.1 sovereignty and jurisdiction is illegitimate even in places within its territory where no so- called cession treaties were negotiated. Instead, as I have explored elsewhere, Canada relies on the doctrine of terra nullius, derived from English colonial law, as the fundamental justification to legitimize its acquisition of sovereignty and jurisdiction.

This doctrine as it is applied in the Canadian context imagines that Canada was not occupied in a legal sense prior to European settlement, and that, therefore, the sovereignty and jurisdiction of the Crown, as the Supreme Court of Canada asserted in

Sparrow, existed “from the outset” of the colonial project. It thus imagines First Nations as existing in a condition so primitive that it was not necessary, and perhaps not even possible, to embark on a project in which their consent would be essential.

The doctrine of terra nullius itself derives from a thought experiment concerning the origins of society as that subject is rendered in early social contract theory, and in particular, in the distinction that it draws between people living in a State of Nature and a state of society. Its application in Canada relies principally on the identification of

Indigenous peoples as living in a pre-social condition at the time of European settlement

(or, as later formulated in racist social evolutionary thought, in a condition so primitive as to be its equivalent) and that therefore they did not have a society with which to form a political relationship. It is a conceptual frame that is constantly reinforced in contemporary jurisprudence, as when the courts demand that Indigenous plaintiffs demonstrate that their social organization was sufficiently “advanced” to support their claims for constitutional protection for any Aboriginal right they are asserting.vi

5 Asch- Challenges of Consent Discussion Paper f2.1 The doctrine of terra nullius and the line of thinking about Indigenous society upon which it relies is clearly racist and colonialist. It lays out a point of view that inhibits rather than fosters the possibility to build a political relationship with them based on mutual consent. Given its centrality to our political and legal ideology, I see an urgent need to discredit and ultimately overturn the state’s reliance on the doctrine of terra nullius and the pre-social representation of Indigenous peoples that it reifies to justify our occupation of Canada without the consent of First Nations.

Elsewhere, I have examined how Hall’s judgement in Calder offers one such possibility.

Here I wish to focus on another. It is the recognition that, from an objective perspective,

First Nations in Canada have the right to self-determination of colonized peoples as that is spelled out in relevant resolutions of the United Nations.

Consent and the Right of First Nations as Colonized Peoples to Self-Determination

Self-determination, especially when applied to colonial situations, is a complex idea, one that is fraught and contested. Elsewhere, I have started to explore in a preliminary way some of the weaknesses in the concept as it is now defined, and how a redefinition based on a relational ontology could help in overcoming them. Here, though, I wish to explore how applying the concept as it is conventionally defined to the relationship between First

Nations and Canada would provide a powerful counter to the hegemonic frame within which that relationship is now imagined in Canadian state ideology.

As we all know, the right of colonized peoples to self-determination is first made explicit in the famous 1960 United Nations "Declaration on the Granting of Independence to

6 Asch- Challenges of Consent Discussion Paper f2.1 Colonial Countries and Peoples" (Resolution 1514 [XV]) where it states, in part, that (United Nations 1960:67):

1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and cooperation.

2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

And then, in what is clearly a repudiation of the doctrine of terra nullius and other colonial formulations of similar ilk used as means to justify unilateral assertions of sovereignty and jurisdiction, the Declaration goes on, immediately, to state:

3. Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence.

It is a depiction of the right that is reiterated in numerous subsequent United Nations declarations and resolutions.vii Thus, it is the description that I take to be the conventional understanding of the application and implications of the term when it is applied in to colonized populations.

The ratification of Declaration 1514 [XV] by the international community, including

Canada, then, raises a challenge of the first order to the proposition advanced by Hume as quoted in Webber that the legitimacy of state power cannot be called into question by any other party, regardless of the justification a state may use to advance its claim. It outlines a specific condition, namely colonialism, under which the legitimacy of the imposition of a political relationship by one party without the express consent of the other is understood to be sufficient grounds upon which to dissolve the relationship. The application of this

7 Asch- Challenges of Consent Discussion Paper f2.1 Declaration, then, acts as counterweight to the power of the colonial state, both morally and, potentially materially, as when sanctions are imposed on the colonial authorities.

Specifically, then, I am asking that we consider for the purpose of this discussion that the

Declaration1514 [XV], applies to the situation of First Nations in Canada. At the same time, I realize that, at least for the moment, I am raising a hypothetical case, for the resolution would never have been ratified had Canada and other settler states not found means to exempt themselves from its provisions,viii and, as their input to the Forum on

Indigenous Rights attests,ix they continue to fight successfully against extending its provisions to their situations up to the present. Indeed, I have no doubt that Canada and other settler states will remain successful in their efforts as its application to their situations could well lead to drastic consequences for many other member states.

Notwithstanding the excursion in real politick; there are at least two compelling reasons to consider that Declaration 1514 [XV] ought to apply to Canada. The first is that

Canada relies for the legitimacy of its sovereignty and jurisdiction with respect to First

Nations on the very colonial legal ideology it has condemned elsewhere through its ratification of that Declaration. Second, Canada is only rescued from its application by virtue of the relative size of the population of Indigenous peoples to the population of settlers. That is, were the numbers reversed so that, as in South Africa, the Indigenous population formed the vast majority and Canada still relied on colonial justifications for its power, there would be no question but that the world community would demand significant change. In short, if the principle of one person, one vote could empower the

8 Asch- Challenges of Consent Discussion Paper f2.1 Indigenous population in Canada, I have no doubt but that a dramatic transformation of political relations would have already taken place.

So let us do a little thought experiment and imagine that the Declaration has been applied to the circumstances of Canada even though the Indigenous population forms a small minority of the total. As I see it, under these circumstances we could not long maintain our status as a legitimate state in the eyes of the international community without finding political arrangement based on consent voluntarily given by First Nations. And there would be a sense of urgency to do so before becoming labeled as outlaws. It is this strength of this drive to accommodation that gives us an indication of the level of urgency that the relational ontology hypothesizes motivated Self and Other at the moment society is first formed.

With this in mind, I turn now to a discussion of the process of building consent might look like under these circumstances.

Consent and Treaty-Making

The political relationship Canada seeks with First Nations is, of course, one where a relationship is to be established between existing political societies. Specifically, it is one where a political society composed of newcomers seeks to establish itself on territories already inhabited by other political societies. Put in this way, it becomes a situation of great complexity, one that evokes the kind of vulnerability on the part of all parties that reflects the incompleteness of the Self when the origins of society are conceptualized in

9 Asch- Challenges of Consent Discussion Paper f2.1 the abstract. However, in this circumstance, care and caution in the development of relations, rather than the immediacy that results from urgent need, would appear to be the hallmark of the process. Consent here requires the strict attention to difference and the possibilities for misunderstanding it creates that are central to the “Grounded in a Form of

Life” definition of it. Given the salience of this perspective, forging an agreement will likely be difficult, but not necessarily impossible. And, given the particularly vulnerable position that the newcomers face due to Declaration 1514 [XV], it would be largely incumbent on Canada to find ways to encourage such possibilities.

In grappling to find a term to describe this process, I have found myself ultimately relying on the concept of “treaty-making.” My decision to use this metaphor derives somewhat from the idea of treaty making as it is found in Western political thought, and particularly Kant’s Perpetual Peace. However, it derives much more significantly from a line of thinking about inter-nation relations found in an important line in Indigenous political thought, as I have come to understand it, largely through my experience working with the Northern Dene on building a political relationship with Canada. I use the term

“Treaty” to describe this process as that is how it is often glossed by Dene when explaining the process in English. At the same time, as I have developed elsewhere, the conceptual frame analogous to “Treaty” is found in the work of Buber and, to some extent, Lévinas.

As I have come to understand it, treaty making in this context offers a process that can enable Canada to develop a political relationship with First Nations that is just and

10 Asch- Challenges of Consent Discussion Paper f2.1 enduring. The goal is to build up a consensus in a step-by-step manner that relies on mutual consent, voluntarily given. It is often reported that the first step in this process is to make a treaty of “peace and friendship” in which Canada’s initial intentions have been accepted as appropriate by the First Nations with whom the agreement is reached. It is, for example, how Dene often describe the terms of Treaties 8 and 11, a point of view confirmed both by the oral tradition and the language of the Commissioners’ reports.

When conditions are appropriate, the intent is to follow up with other agreements, which may well describe the relationship in more detail, and perhaps explore other avenues of connections. It is, for example, how Dene often described the intent of the so-called

“land claims” agreement. In this process, each step is carefully taken, and then only after deliberation. It is a process, then, that takes time and demands much care and attention.

And, it is a relationship that must be constructed most carefully given that the objective of Canada is to inhabit the same space as the original peoples, in a manner that ultimately should lead to the formation of a more intimate relationship.

Conclusions

In sum, it is my view that “voluntary consent” in the context of relations between First

Nations and Canada cannot be a single, simple act. It needs to be process that is intended to move the parties closer to an objective that becomes more defined as it progresses. It will be accomplished as much through consensus as by formalized events, although the latter may play a crucial role by marking key moments along the way. The sense of this process is eloquently portrayed by Lévi-Strauss when he suggests that the creation of a relationship between two formerly autonomous parties is developed through a continuous

11 Asch- Challenges of Consent Discussion Paper f2.1 transition forged by on-going exchanges, through which the goal of a close political relationship comes as: “the conclusion to an uninterrupted process of reciprocal gifts, which effects the transition from hostility to alliance, from anxiety to confidence, and from fear to friendship.” To my mind, it is in honouring that a lengthy road lies before us, in the understanding that it is we as newcomers whose hegemony rests on colonialism who must seek the accommodation, and in the realization of the contingency of our presence here without reaching a conclusion that is agreeable to all, that we discover the fundamental challenge to consent we that face.

Appendix 1

Origins of Society in Anthropological Theory and Consent Anthropology as a discipline found its specific voice in the wake of the revolution inaugurated by Darwin and Spencer, as informed by Hegel and Marx. That is, it was founded in evolutionary thought, both social and biological, and is still grounded by it. Thus in the discipline, the chronological sequence of evolution through which society emerged rather than logical deductions based on abstract principles, such as thought experiments, dominate the discourse, to the point that anthropology takes as its object of study on “origins” to focus more on, “when is society” than “what is society.” Nonetheless, definitional issues are still addressed, for one cannot have a “when” without at least some idea of a “what.” But still, by and large, the interrogation of the “what” has been quite pedestrian, relating largely to comparisons between human society and those of primates on the grounds, following Darwin, that, as our closest ancestors, they provide a solid foundation to speculate on the “actual” or “empirical” point of departure for human society. And, following from Spencer and, I am afraid, Marx and his students (largely up to today), the exemplification of “human society” in its “original” condition with which comparisons with primate societies are drawn are Indigenous peoples, and particular those with what are called “hunting-gathering” economies or a “foraging way of life.” In a phrase, to many anthropologists concerned with origins, Indigenous peoples a useful object of study because they are “our contemporary ancestors.”

For the most part, these comparisons have been framed within an unacknowledged paradigm from political theory; to wit, the social contract and particularly its Hobbesean iteration.x There is little scope for serious enquiry into consent in all of this, nor an opening for any conversation with Indigenous peoples. And, indeed, anthropological representations derived from this model are used to confirm the appropriateness of the jurisprudential representation of First Nations as having existed in “levels” of society.

12 Asch- Challenges of Consent Discussion Paper f2.1 There are a goodly number of anthropologists, particularly here in Canada and in Australia and New Zealand, who do not subscribe to the proposition that Indigenous peoples are our contemporary ancestors. For the most part, these scholars, I would judge, subscribe to the “consent as grounded in a form of life” perspective as outlined by Webber and see as their subject of study means to exemplify, through cross-cultural communication, the signification of these various streams of social life. It is, if you will, the subaltern position that confronts the hegemon of evolutionism with a strong humanist retort. It is a position with which I have great empathy for it offers good food for thought. But, it is not an approach that looks into origins, but rather the consequences for human relations that arise from the acceptance that societies already exist. In this sense, I find this approach discussing consequences in human affairs of something that is already assumed about connectedness, and the need to have a conversation, to enter into dialogue. It is in some measure for this reason that I have more in comment with the “consent and relational definition of self” category, for here anthropologists are concerned both with relatedness, and with a theory to explain the relationship between this impulse and the origins of society. This is, if you will, the place where enquiry about relationship and connectedness move from a place of curiosity to one of necessity.

13 Asch- Challenges of Consent Discussion Paper f2.1 i I am not assuming that “Canada” includes Québec. However, if it does not, I am assuming that the same argument applies equally to Québec ii This paper focuses on principles, rather than models. I believe that a possible model could derive from the position taken by the Dene Nation (or the Indian Brotherhood of the Northwest Territories as it was known then) in a document called “Public Government for the People of the North.” combined with a form of consociational democracy, as that term is defined in anthropology (relations between ethnonational communities) rather than political science (elite accommodation). iii It is assumed that, in principle, the right of newcomers to remain in the territory known as Canada (and/or Québec) depends on a succession resolution of the relationship that is based on voluntary consent. iv For those initiated into anthropological jargon, this concept of society is represented most clearly in moiety structures where the system of cross-cousin marriage creates a perpetual alliance between the sides. v In contrast, when examined abstractly, the “Grounded Form of Life” perspective gives the impression that an independent and self-contained collective Self already exists prior to any need to enter into a relationship with Other. That is, it seems to posit that a society already exists before voluntary consent needs to be given. Thus, voluntary consent appears to play a secondary role, a position with which I have some difficulty. At the same time, the perspective on the meaning of “voluntary consent” offered by the ”Grounded Form of Life” perspective provides a set of considerations that are essential in the affairs of the real world, as when a society, having already been formed on the basis of voluntary consent between Self and Other, seeks to enter into a consensual relationship with another society. In this case, in my view, it provides an essential consideration on voluntary consent that is paramount in seeking a world in which political relations are justly based, but one, speaking from an abstract perspective, that seems to become significant as a consequence of the establishment of society. It is in this sense that I find that the concept of voluntary consent as envisioned in a relational definition of Self has priority. vi As one of my students points out in a recent Master’s thesis, in the post-Charter environment, the courts have accepted that having culture (for this case the equivalent of having society) is a concept that, with one exception, describes an attribute about persons that is so fundamental that its possession is not something the court will question. It is possessed equally (although manifested differently), and by everyone in equal measure. The exception is Aboriginal rights cases. Here, the courts see culture (or society) as a fact that the litigants must prove they possess, and upon this basis the courts feel comfortable to calculate the measure of that culture as against some abstract standard derived, ultimately, from anthropological theory. Some have “more.” Others have “less.” And the possibility is always present, as in the Baker Lake test, that some may have none at all! vii For example, the "Declaration on Principles of International Law concerning Friendly Relations and Cooperation among Sates (sic) in Accordance with the Charter of the United Nations" adopted by the General Assembly in 1970 states, in part (Lawson 1989:1331): By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter. It also states that one of the obligations of every member State is to "bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned (ibid:1331)." viii I am referring here to the proposition that its terms only apply unequivocally when the colonized population lives outside the territory of the colonial state (the so-called blue water thesis), and by the approbation contained in the Declaration itself that: Any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations. ix For example, one can be certain that the fear that such recognition would encourage Indigenous peoples to seek political independence from Canada is notable, which even taken from a hypothetical perspective is a great concern in the context of relations between Canada and Québec. x Among those anthropologists concerned with questions of origins, most have taken up a modified Hobbesian view on this point, suggesting that the earliest forms of society (as exemplified by contemporaneous hunting-gathering societies) were organized merely to avoid the war of all against all, or because the poverty of their economies demanded a degree of collectivization in the chase. A few have modeled their position from Rousseau. They suggest that Indigenous peoples do not live in society, but are nonetheless cooperative. Indigenous peoples have, as Barnard and Ingold suggest, sociability, but not society.