Envisaging Canada in a Disenchanted World: Refl ections on Federalism, Nationalism, and Distinctive Indigenous Identity
Jean Leclair*
Ah yes! his charm. Although it is capable of courage, Th e people, always ignorant and dazzled! generosity, resourcefulness, and benevolence, Th ey come to watch a scene for which they pay, the Trickster is also quite capable of blunders, To see a strange hand risk their destiny. indecision, frivolity, and trickery. Furthermore, it adores having fun at the expense of others, 1 Victor Hugo (1802-1885) meddling in situations where it is not supposed to be present, and bringing the unexpected to [Necker] was blamed by the philosophers of bear on the most carefully thought-out plans. the day for not applying, in all its extent, to In short, the Trickster is an imperfect being who commerce and fi nances the system which scoff s at system-makers (“faiseurs de système”) they wished to impose on the mind. Th e and other rigid thinkers who are indiff erent to philosophic fanaticism which proved one of the dense and fl uctuating nature of reality. the evils of the Revolution had already begun to show itself. Th ese men were desirous of I have taught law for more than twenty attributing to a few principles that absolute years. I have gradually become convinced that power which had hitherto been absorbed by jurists (like myself), political scientists, and phi- a few individuals; as if the domain of inquiry losophers who are interested in federalism and admitted of restriction or exclusion. Indigenous issues — whether they themselves
2 are of Indigenous origin or not — do not always Germaine de Staël (1766-1817) take suffi cient consideration of the Trickster in their understanding of these matters. Th eir intel- No sooner had I started looking into Aborig- lectual constructions lack asperities. No provi- inal and treaty rights issues than did I stumble sion is made for the unforeseen. Everything is upon the fi gure of the Trickster. Th e Trickster is just too smooth. Above all, these constructions a mythical fi gure in Indigenous thinking — an oft en overestimate or underestimate the capacity incorporeal being that moulds itself into diff erent of human beings to think by and for themselves. forms, be it that of a crow, a rabbit, or a fl ower — whose powers are limited by the physical form *** it embraces. Despite its remarkable powers, the Trickster is not omnipotent. It is a basic truth that any person who wishes to speak about something at a certain level of While this fi rst limitation already warmed me to generality must have recourse to concepts that the Trickster fi gure, another drawback furthers simplify or reify reality. Caution should therefore
Constitutional Forum constitutionnel 15 be exercised, since any conceptualization neces- family. Th at said, as rational agents, we can sort sarily obscures one part of reality and magnifi es out our opinions, behaviours, and convictions. another. We need to cultivate a healthy suspicion If renouncing what we have for a long time with regards to the notions that we mobilize in believed to be true entails some painful wrench- our understanding of reality, failing which we ing, this wrenching is no less possible for that. risk convincing ourselves that empirical reality Conversely, we are always at liberty to embrace yields to our conceptual frameworks in every new practices, habits, and opinions. respect.3 In the discussion that follows, I will fi rst My sympathy for the Trickster was born of highlight the dangers inherent in submitting the a dissatisfaction with the limits of concepts such analysis of the Canadian federal phenomenon or as rights, sovereignty, the social contract, nation- the issue of Indigenous governance to a mono- alism, and cultural authenticity — all concepts cular conceptual lens that gives rise to binary upon which one stumbles constantly if one takes conclusions, a prism that does not do justice to an interest in federalism or issues pertaining to the plurality of identitary markers of the mem- Indigenous governance. Th e common denomi- bers of the Canadian political community — be nator of all of these notions is their hostility to they English Canadians, French Canadians, Que- pluralism and their imposition of a monocular beckers, Indigenous, or non-Indigenous people. vision of reality, in that they hyperbolize a sin- gle aspect of reality, thus oversimplifying the In the second part, I would like to demon- complexity of the very phenomena they are sup- strate how a federal line of thinking (“une pensée posed to explain. In truth, if these concepts are fédérale”) — I would go so far as to say a federal that powerful, it is precisely because they off er a epistemology — would conversely allow for the “total” explanation of phenomena that are highly complexity of our respective individual identi- multifaceted.4 ties to be revealed, while unveiling at the same time the ratio of power which intervenes in the Above all, my dissatisfaction arose from the construction of a given identity. Finally, I will conception of human beings underpinning such attempt to demonstrate how this renewed under- forms of conceptualization. All too frequently, standing of federalism would allow us to grasp the way in which human beings are represented the Indigenous issue from a diff erent angle.5 oscillates between two equally repellent poles. Th e fi rst pole makes a “rational idiot” of the human being: an idiot, since he is unable to rec- 1. Th e dangers of monocular ognize that his rational choices are meaningful 6 exactly because they are confi gured by a very spe- approaches cifi c socio-cultural context, one without which the choice of A over B would be totally arbitrary. Th e critical appraisal of federalism that has been Human beings do not live in a vacuum. Th e sec- undertaken by several Quebec scholars, as well ond pole, on the other hand, considers the human as the opposition of certain Indigenous scholars being to be an “irrational idiot”: an idiot because to the authority of the Canadian government, he is incapable of extracting himself by means of provides a good example of a monocular episte- reason and willpower from the identitary corset mology. fashioned by history and socialization. I am, of course, exaggerating the two positions here, but A common characteristic of several Quebec to a lesser degree than it would appear. and Indigenous scholars is that they describe the relationship between Canada and Quebec, or In fact, nobody satisfi es either of these between Canada and the Indigenous peoples, as models. It stands to reason that we all are fash- 1) a struggle between nations characterized by ioned by socialization processes beyond our profound and absolute cultural distinctiveness; control. Th us, whether I like it or not, I was born and/or 2) as a zero-sum game between two polit- in Quebec into a francophone Roman Catholic ical communities that are mutually exclusive
16 Volume 25, Number 1, 2016 because they are equally sovereign, each bearing however, we can adhere but to one nation. Th e a watertight and indivisible political authority. latter is a totality to which one belongs and which one cannot leave, unless one leaves it completely. As we will see further on, these perspectives He who ventures beyond the symbolic national are certainly not completely devoid of truth. border and harbours multiple allegiances stands Nor do I doubt that nationalism can constitute to be excluded due to his lack of patriotism, his a remarkably powerful political lever; there is no blindness, his ignorance, or the false conscious- need to demonstrate its extraordinary capacity ness of the colonized from which he suff ers. to ensure the cohesion of a given group. But, this is not the focus of my present attention. I am Moreover, this point of view oft en repre- more interested in examining the unspoken epis- sents the nation as a natural organizing principle temological premises underpinning what I will instead of an artifi cial construct, as a subjective call methodological nationalism: in other words, transcendent entity, one that is both anterior and the point of view in terms of which the world superior to its individual members. Th e nation is entirely made up of national groups. Such an would derive its existence from a quasi-natural analysis will enable me to reveal certain norma- historic process that is independent of individual tive consequences associated with this epistemo- volition. A nation would thus be not so much the logical perspective. fruit borne from multiple, frequently confl icting interactions between its constitutive members Th us will we see, among other things, that over the course of generations, as the product the two postures evoked above both presume the of a set of socialization processes completely existence of a perfectly singular Quebec or Indi- beyond the control of individual members. Of genous identitary essence. Moreover, we will be course, nationalist writers are not oblivious to able to observe that concepts such as nation, so - the fact that such interactions do take place, but vereignty, and rights are poorly suited to the idea this does not give rise to any consequences that of compromise, overlap, or of multiple belong- seriously impact their way of thinking. In their ings. Instead, they refer to a universe of oppo- view, a person essentially remains largely deter- sitions, of confl icts, and of dichotomous distinc- mined by her cultural and social environment. tions, rendering more diffi cult the fashioning of Her capacity to think by and for herself ( i.e. her solutions which, while admitting the importance agency), is accordingly all the more diminished. of autonomy, aim at cultivating solidarity and interdependence. Furthermore, the word “nation,” as employed by them, designates society as a whole. In other Incidentally, even though I will not speak words, to talk about the Québécois nation or an much about it, I would like to emphasize that Indigenous nation is to refer to the entire body of there is also an English-Canadian version of Québécois or Indigenous community members nationalism, based not so much on a substan- for whom one is talking. tial cultural conception as a formal defi nition of equality. While it typically slumbers due to its Th is epistemological perspective, in presum- majoritarian nature, it raises its head as soon as ing consubstantiality of nation, society, and state, the will of Quebeckers and Indigenous peoples also has the eff ect of emphasizing the discourse to retain control over a portion of their commu- of those who speak on behalf of such nations nity life manifests itself too strongly. (such as politicians or scholars — “those who know”), rather than the point of view of its cons- It goes without saying that, in terms of the titutive members, the latter being conveniently Indigenous or Québécois7 nationalist perspec- presumed to be unanimous. tive, there exists but one nation to which a Québé- cois or an Indigenous community member can Finally, nationalist thinking in its Québécois belong. As civic, democratic, and open to diff e- or Indigenous version relies on a diff erentialist rence as it may be, a nation has but one centre. and totalizing conception of culture. National We may possibly adhere willingly to the nation; distinctiveness depends on cultural diff erence.
Constitutional Forum constitutionnel 17 Consequently, everything is cultural and nothing use identical cultural referents as starting point, escapes the net cast by this expression; it not only they may well end up sustaining profound disa- includes that which one spontaneously connects greements among themselves. to the idea of culture, but also the world of va lues. In terms of this worldview, we are all respectively Because nationalist thinking assumes too enclosed in universes that are cognitively, cultur- much unanimity between the members of ally, and axiologically opaque to others. Accord- national groups and because it takes the “nation” ingly, that which qualifi es as Indigenous culture as a pre-existing given, such thought obscures cannot simultaneously qualify as Canadian or the role of power in Québécois and Indigenous Québécois culture, and vice versa. nation-building, highlighting only that which characterizes Canadian nation-building.8 Th e Clearly, methodological nationalism renders defunct Charte des valeurs québécoises and the the idea of federalism practically unthinkable. Mohawk community of Kahnawake’s member- Where federalism postulates that citizens of a ship code off er magnifi cent examples of iron single state may easily harbour a sense of belong- fi sted identitary construction. ing to more than one community, nationalism excludes this possibility. Indeed, the nation is Moreover, the cognitive chasm that is said allergic to plural allegiances, since it thrives on to radically divide Indigenous and “modern exclusivity and unanimity. Western” thinking is substantially shallower than one might think. Many Indigenous schol- Nationalist thinking only ever consents ars consider that Modernity boils down to the to the idea of federalism in its “multinational” neoliberal agenda, period. In reality, Modernity version, as a means of political management of marks that moment in history (which diff ers national groups that are conceptualized as being from community to community) where reality mutually exclusive but “federated” within a is no longer conceptualized as the product of a shared political space (one, however, that can- heteronomous will, external to human beings, not be elevated to the status of “nation”). Th is and where Tradition and Religion have conse- perspective appears to me to underestimate quently ceased to play a structuring role in the the complexity of the identity of these national social and political environment. Th is is the era groups’ constitutive members. of de-transcendentalization of knowledge and power, the era marking a general retreat of the Nevertheless, the nationalist perspective invisible. Henceforth, one may legitimately dis- contains a great deal of truth. Th us, it is fair to sect anything critically. It is an era when social say that Québécois or Aboriginal culture is truly bonds become predo minantly political and diff erent. But it is most certainly possible to identity is no longer “given at birth,” so to speak. recognize the distinctive, if not unique, charac- Rather, it is defi ned and renewed in the course of ter of these cultures without ascribing to them one’s relation to others. Political authority is also a homogeneity and uniformity of content that no longer accepted at face value: justifi cation is they simply do not have. Indeed, if “culture” is required. understood as comprising the range of concepts and world views that inform the way in which As sociologist Jean-Jacques Simard puts it, the members of a given community formulate Modernity may be understood as: their thinking — something that surpasses a simple linguistic diff erence — it should not be […] the age where fi rst the Europeans and then confounded with a monolith of notions or sub- other peoples […] found themselves at odds with the culture that they had inherited, as if it stantial ideas that are unanimously agreed upon was something contingent, open to discussion, by its members. Th at culture shapes the way in […] to choice, while, until that moment, which a community thinks and expresses itself inherited culture precisely and globally defi ned may well be the case. Th e notion that a shared necessity, both objectively and normatively culture leads all of a community’s members to speaking: an instruction manual for life, a think the same thing is false. Th ough they may user’s guide to the universe, transmittable as
18 Volume 25, Number 1, 2016 such from generation to generation as the sole cois and Indigenous societal cultures appear to and personal property of each ethnogenetic me to be too stable and too coherent. Th ey are group. It is then, not that an inauthentic more diverse and fl uid than one might think. In culture — the phrase does not make senses addition, I always wonder why Kymlicka never — appeared, but that was raised the insolvable alludes to the possibility that, especially in a issue of the (spontaneous) authenticity, and fede ration, one could be immersed, since birth, (deliberate) inauthenticity, of the relationship of individuals to their Likes, to Others as well in two diff erent societal cultures (or three, if one as to Th emselves. […] [T]he word ‘modern’ is an Indigenous person). Why should a person means nothing more than ‘contemporary.’9 be confi ned to a single such societal culture?
It goes without saying that criticism preceded the Modern period. Modernity, however, Furthermore, nobody contests the impor- extended it to that which had previously fallen in tance of national identity as a marker, but is this to the domain of the untouchable, the unthinkable. say that it is, at all times and in all circumstances, THE evaluative criterion for the Québécois or I am not casting doubt on the holistic and the Indigenous peoples? Does an Indigenous or intuitive nature of Indigenous knowledges. Nor Québécois citizen not make daily choices based am I contesting the intimate bond between these on other markers that are as close to his heart knowledges and the land, or their rootedness (sexual orientation, gender, generational posi- in a spiritual matrix. I also recognize that the tioning, spirituality, professional identity, ethni- modes of transmission of these knowledges are city, aesthetic preferences, etc.)? What right does not completely aligned with ours. What I object one have, to paraphrase philosopher Amartya to, however, is the idea that there is unanimity Sen, to “miniaturize the human being”10 to the on the content of this knowledge, on the kind point of turning him into the standard bearer for of answers to which it may open the door, or on a single identitary marker, the national referent? the nature of the values shared by the Indigenous And why may a person not harbour more than peoples who have access to it. It may well be that one allegiance? there is consensus on a number of things. But, is there unanimity on all? No. As for the concepts of rights and sovereignty, Like other Canadians, the Indigenous peo- these also encourage an adversarial approach of ples of Canada — I am not qualifi ed to comment the “I win/you lose” variety. Sovereignty is gene- on the Amazonian Yanomamis — live in a disen- rally conceived of as being unrepealable, incon- chanted world. Th at is, a world constantly chal- testable, and indivisible. In the same way that lenged by criticism and exposed to new ideas. one cannot be semi-virgin, it is diffi cult to be Rather ironically, the most ardent defenders of semi-sovereign. Besides, federalism has always Indigenous tradition are the purest product of been problematic for theorists of state power. the “Modern” thinking that they themselves A right, for its part, while very useful on occa- denounce. By distancing tradition, by objectify- sion, nonetheless remains a shield brandished to ing it, by defending it on the basis of perfectly counter or defl ect the thrust of one’s adversary. rational and frequently convincing arguments It is not a vector of compromise or conciliation. (to Indigenous and non-Indigenous people Moreover, the doctrine of Aboriginal rights alike), they embody refl exivity in its most para- developed by the Supreme Court of Canada digmatic form. And, I emphasize, this does not is based on an extremely folkloric conception make of them inauthentic Indigenous persons. of Indigenous identity: only cultural activities essential to Indigenous lifestyles as the y existed Th e philosopher Will Kymlicka is not wrong prior to European contact will be aff orded pro- to conclude that a decision is only meaningful tection. Th is doctrine has certainly opened the if it is based on a horizon of signifi cance shared door to judicial victories for Indigenous peoples, by the members of a community. However, the but it has also fossilized their identity in the war- horizons of signifi cance ascribed to the Québé- paints and moccasins of the 17th century.11
Constitutional Forum constitutionnel 19 How, then, do we escape from these concep- does not fl ow from a single source. Th is anthro- tualizations that induce a dynamic of opposition pology also enables us to escape the “‘solitarist’ and confl ict that impoverish the debate by ruf- approach to human identity” to which metho- fl ing the complexity of our respective identities dological holism and methodological national- in binary and simplistic terms, that oblige us to ism lead: a unifocal understanding of identity choose between the “authentic” Québécois or according to which “the people of the world can Indigenous person and the one who suff ers from be uniquely categorized according to some sin- patriotic anaemia or “cancer of the colon” in the gular and overarching system of partitioning.”13 sense of being colonized? By what means can we Th e multiplicity of our allegiances, which does escape from a conceptualization that considers not exclude the possibility that one of them may ambiguity, overlapping, and multiple allegiances assume a greater importance than the others, to be anomalous? also compels us to recognize that a citizen may consider himself a member of several distinct political communities without necessarily wan- 2. Th e possibilities off ered by ting to decide between them. federal thinking12 Federalism, not being a mere descriptive the- Any theory needs to base itself on a minimalist sis, does not simply acknowledge the existence of anthropology if it is to have a hold on reality. By these groups to which people attach themselves that, I mean a theory of human nature that fully in various ways, but strives to structure their appreciates what human beings are. In other relationships in order to allow them to coexist words, not supermen or superwomen who can peacefully instead of irrevocably breaking with eff ortlessly extricate themselves from real con- one another. In this structuring, federalism goes straints, nor objects of clay wholly modelled by beyond simple pluralism, which is sometimes socialization processes. content to observe the existence of diff erences. Contrary to the concepts of nation, sovereignty, More specifi cally, and contrary to monistic authenticity, and rights, federalism emphasizes understandings of identity, this anthropologi- the nature of the relations between persons and cal perspective requires the recognition that our groups, rather than their essence. personal identities are — at least in part — inde- pendent from the social element and that a per- Federalism refers to a duty or rather a moral son is capable of putting this element at a dis- project that involves at all times combining the tance by way of a rational exercise, and even of “I” with the plural “we(s)” of which we are a part, contributing to its renewal. Th is approach does and this, without necessarily subordinating the not, however, result in encouraging an asocial or one to the other (and vice-versa) under all cir- antisocial individualism, for it does not negate cumstances. Th us, it recognizes the importance the infl uence of various powers and forces acting of socialization and the existence of inclusive on the individual within a society. On the con- social formations by attempting to ensure the trary, a person could not develop her individ- coexistence of multiple communities within the uality outside of a social framework. A person same unit. It does not, on the other hand, make is thus not conceptualized here as an abstract, allowance for the idea of a radical collective sin- atomized entity, but as a subject involved in a gularity that would make a double allegiance constant individuation process in the course of impossible. Admitting that an individual una- which she makes herself — but, with the help of voidably falls into a social group that surpasses others and not always in opposition to them. him does not mean that he has to drown in it. Th is anthropology also obliges us to admit Federalism aims to compel us to conceive that some individuals cultivate multiple attach- of our political future without ever losing sight ments and that the hierarchical organization of of the presence and projects of others. By “we” their identitary markers may vary according to I mean both the citizens themselves and the the circumstances. Th e current of our humanity political entities composed of the federal govern-
20 Volume 25, Number 1, 2016 ment, the provinces, and the various Indigenous From this point of view, that which explains political groups of Canada. It is in this sense that the particular position of Indigenous peoples in federalism constitutes an institutionalization of the Canadian political order and justifi es consi- refl exivity. Unlike the concepts of nation, sover- dering them as constituent actors, is the fact that eignty, authenticity and rights, it makes the idea the relationships maintained by Euro-Canadi- of compromise, concessions, even renunciation, ans with Indigenous peoples were, at all times, plausible. based on the notion that the latter were collective actors capable of exercising a political authority. Moreover, federalism, contrary to the sim- From the time of the very fi rst contact, this polit- plistic notion of sovereignty, acknowledges the ical dynamic has generated a particular type of polycentric nature of power and is not obsessed relations between the Indigenous peoples and with what the source of that power is. Th at is not the Canadian State. Relations that, and this is to say that it is indiff erent to issues pertaining to of the essence, are not simply of historical inte- the identity of the holders of such power. But it is rest, for they continue to this day. Th ese complex not its sole point of interest. It is also attentive to relationships have created expectations, induced the just or unjust nature of the distribution and actions, and killed off initiatives whose echo still exercise of power. Finally, while recognizing that loudly resounds in 21st century Canada. the various orders of government possess politi- cal autonomy, federalism’s central preoccupation Whether before or aft er the advent of the is always the strength of the general frame of ref- Indian Acts in the middle of the 19th century, the erence. Indigenous peoples have never been considered as simple individual-subjects or individual-citi- Th erefore, federalism is, on the one hand, zens, when policies concerning them were devel- a political concept that is open to a meaningful oped. recognition of the identitary plurality of indivi- duals and not simply the recognition of a form of Th e sheer number of treaties that they con- “plural monoculturalism.”14 On the other hand, cluded with the French and English and Cana- it is a concept that emphasizes the nature of rela- dian Crowns serve as testimony. Individuals may tions between persons and groups rather than sign contracts. Only collective political subjects their essence.15 Th is is why federalism has struck may bind themselves to the terms of treaties. me as being a more appropriate route than others As Chief Justice Marshall of the United States for the purposes of refl ecting on Indigenous Supreme Court said in 1831 regarding treaties governance. As a concept, it provides a more signed with Indigenous peoples: “Th e words accurate refl ection not only of the malleability of ‘treaty’ and ‘nation’ are words of our own lan- our personal identities, but also of the reality of guage, selected in our diplomatic and legislative the relations that have always been maintained proceedings by ourselves, having each a defi nite between Indigenous and non-Indigenous people and well understood meaning. We have applied in the Canadian political environment. More- them to Indians, as we have applied them to the over, and this is of critical importance, the idea other nations of the earth. Th ey are applied to all of “relations” is at the heart of Indigenous epis- in the same sense.”17 And the Canadian State has temology and ontology.16 signed, and continues to sign, such treaties with Indigenous peoples. How does such a conception of federal- ism assist in elucidating the issue of Indigenous Even under the regime of the Indian Acts governance? At the very least, it enables us to adopted from the 1850s, Indigenous peoples formulate the question in a diff erent way. Rather will never be treated as mere individual-sub- than approaching Indigenous governance in jects or individual-citizens. Th e imperialist terms of colliding rights, nationalisms, and sov- British undertaking and its Canadian successor ereignties, why not instead focus on the type of have always conceived of Indigenous peoples relations entertained by Indigenous peoples with as collectivities capable of exercising political the Euro-Canadians over time? authority, even if it amounted to only delegated
Constitutional Forum constitutionnel 21 authority. Admittedly, the hope was to “eman- still greater importance, denying the existence of cipate” the Indigenous peoples by “civilizing” an Indigenous reality henceforth inscribed in a them, to phrase it in the terminology of the time, logic that is, at times, diff erent from that of the but never have laws apprehended them in their Indigenous person living in a reserve and away sole individual dimension.18 It is striking to note from cities would be an aff ront to those Indig- that the imperialist Canadian policy has always enous persons who defi ne their identity diff er- aimed to keep Indigenous peoples — as politi- ently. Th e Idle No More movement is but the cal and not just cultural communities — on the most spectacular manifestation to date of the fringes of the Euro-Canadian world. Th e “band,” identitary simmering that is currently shaking defi ned as a “body of Indians” by Canadian law, up a very diverse Indigenous civil society. still remains the key political unit in the Indige- nous sphere today. And, it is in the band council, Federalism, from my point of view, requires designated political mediator of the will of all of that we take into consideration the way in which its members, that all powers devolved by the law our relationships have structured themselves are vested. historically. Among other things, this perspec- tive obliges us to take into account the Indige- To put it in a nutshell, Indigenous peoples nous peoples’ will to retain a ratio of autonomy have always been perceived by the Euro-Cana- that would enable them to “think themselves” (“se dian political actors as collective political actors, penser eux-mêmes”), regardless of where this albeit, from the middle of the 19th century, as sec- process may lead them. ond-class collective political actors. However, and in order to avoid falling into But there is more to it. Our behaviours trans- the trap of essentialism, I reiterate that we must form reality and we cannot simply turn a blind admit that it is not the content of their diff erence eye to their concrete consequences. Th e sign- that matters, so much as does the historic will ing of treaties, the collective marginalization of of the Indigenous peoples, who have not solely Indigenous peoples, and their fi erce resistance to been victims, to erect political boundaries — their being both physically and culturally elimi- mobile as well as porous — between themselves nated have induced behaviours as well as expec- and the non-Indigenous; this same historic will tations that we cannot abruptly terminate with- has been shared by the State itself, although, to out causing even more damage. be sure, the objectives of these oft -confl icting parties have been poles apart. All these events have contributed to cultivat- ing the Indigenous peoples’ desire to self-defi ne It follows from the federal perspective as political communities, not so much by claim- expounded here that the Indigenous peoples are ing a substantially distinctive cultural identity, as entitled to claim a share of political autonomy. by establishing boundaries between themselves Th e latter is not based on a sovereignty having and non-Indigenous people. In sum, these events for centuries lied dormant under the surface of explain why we must still today reckon with oppression or on a radical cultural diff erence Indigenous political communities in the present that is, in any event, too diffi cult to pin down Canadian political space. juridically. Instead, it is based on relations that the Indigenous peoples have always maintained Nevertheless, the (not always involuntary) with non-Indigenous people in their capacity as incorporation of Indigenous peoples in modern political bodies, and not simply as cultural bod- society (urban, technological, etc.) has not been ies. Recognizing to Indigenous peoples an auton- without consequences for them. Indigenous omous sphere as political bodies and not simply identity is now largely, although not completely, as cultural bodies, whether by treaty or other- dependent on its articulation with the state wise, means guaranteeing them a constitutional- apparatus and the non-Indigenous population. ly-protected space within which they will be free, Completely ignoring this undeniable imbrica- like Quebeckers, to debate among themselves the tion would be equivalent to wishful thinking. Of thorny question of their identity.
22 Volume 25, Number 1, 2016 On the other hand, since denying the com- by the Supreme Court to establish such a title has plexity of contemporary Canadian Indigenous spoilt the relations between Indigenous com- identity would amount to wilful blindness, the munities with overlapping claims. Th e victory of federal perspective proposed here is incompati- the one hinges on the defeat of the other. Indeed, ble with any attempt to eliminate shared spaces of the exclusivity criterion incites each commun- political participation and collaboration between ity to demonstrate the exclusive character of its Indigenous and non-Indigenous people. own occupation and the occasional and irregular nature of that of its opponent. *** As for the mantra of the “nation to nation” Such a short piece must necessarily leave unset- discourse, noble as it may be, by making the tled a lot of important questions, a number of federal Crown the sole legitimate interlocutor which are addressed in the works referred to in for Indigenous peoples, it delegitimizes all dis- the footnotes. However, I wish to conclude by cussions with their closest governmental neigh- answering the two following questions. bours, i.e. the municipalities.19
First: in criticizing the monocular approach If the “epistemology of doubt” that I have to which the concepts of rights, sovereignty, and attempted to defend in the preceding pages nationalism expose us, do I cling to the hope of could bring us to recognize that we cannot draw seeing them evaporate from the political and categorical conclusions from ontologically vague legal landscapes? Such hopes seem ridiculous. concepts (the idea of nation or cultural auth- For better or for worse, these concepts are here to enticity, for instance), my eff orts would not have stay. It would be dishonest not to recognize that been in vain. resorting to rights or to the idea of nation has, at times, enabled the Indigenous peoples to achieve Second: besides the introduction of this salu- legal and political victories. tary doubt, is the federal approach proposed here Th e objective of the above exposé on a fede- nothing other than an interesting abstraction? I ralist approach is infi nitely more modest. Above do not think so. It enables us to view federalism in all, I attempted to demonstrate that, despite ways diff erent from stato-centric and group-cen- whatever virtues they may have, the above men- tric perspectives, and allows us to see in it a way tioned concepts impose on their adherents a par- of entertaining a relationship with oneself (a 20 ticular way of conceiving the world. One where “soundless dialogue with oneself”) and with oft en the Manichaean logic of “I win/you lose” the world. Grasping reality in this fashion also and of “we/others” is presented as being self-evi- brings with it normative consequences, to the dent, where the presumed homogeneity and extent that it favors the generation of solutions unanimity of the nations of which one speaks is duly acknowledging our numerous allegiances. not suffi ciently questioned, and, where the share Secondly, in my fi eld of constitutional law, the of power required for the construction of any relational approach advocated here would enable nation whatsoever is ignored, such nation never the Supreme Court to distance itself from its being the pure product of a “natural” historical present essentialist interpretations of Aboriginal process. Such a worldview carries normative rights and thus progressively open the door to consequences in that it favours solutions bank- the recognition of Indigenous legal orders, and ing on what Amartya Sen calls “solitarism” at the therefore to Indigenous normativity properly 21 expense of interdependence. so-called. To recognize such legal orders is to implicitly admit that Indigenous communities For instance, the recognition of an Aborig- are invested with a power of a political nature inal title can indeed prove a boon to the Indige- authorizing them to adopt their own norms, nous community that succeeds in establishing its which is the very essence of the idea of autonomy existence. However, one needs to admit that the (from the Greek auto and nomos meaning “living requirement of exclusive occupation developed by one’s own laws”).
Constitutional Forum constitutionnel 23 Th e Supreme Court will soon be forced to refl ect on the place to be given to Indigenous legal orders, and hence to the concrete problem of Indigenous governmental autonomy. True, the Court has never recognized even a limited right to Endnotes self-government to Indigenous peoples.22 How- ever, its judges have become entangled in their * Jean Leclair, Full Professor, Faculty of Law, own conceptual nets. Th us, they have not only Université de Montréal (jean.leclair@umontreal. recognized that Aboriginal rights and Aborig- ca). Th is text is based on a paper presented in the context of the Conférences Trudeau Lectures, inal title are collective rights held by Indigen- held as part of the Th ink Big 2015 series organised ous communities, but they have affi rmed that jointly by the Federation for the Humanities and an Aboriginal title comprises “the right to choose Social Sciences and the University of Ottawa on 23 to what uses land can be put” and that Aborig- June 4, 2015. I would like to express my sincere inal rights “include the right to determine when appreciation to the Trudeau Foundation, not fi shing will occur and the method and manner of only for the fellowship that it has graciously fi shing.”24 Whether the Court likes it or not, the bestowed upon me, but for presenting me with the combination of these two elements — collective opportunity to become part of an extraordinary rights and capacity to make choices — signifi es intellectual community made up of people of that it has implicitly recognized in Aboriginal all ages, drawn together by their joint interest in rights’ holders the power to establish rules and to themes that Mr. Pierre Elliot Trudeau held dear govern their implementation. Th e door is, there- — he himself having been a former professor of constitutional law at my Faculty. I am grateful to fore, already partially open for the recognition of all who have taken the trouble of commenting a limited form of Indigenous self-government. on the manuscript for this conference. As always, In a very near future, the Court will no longer however, the ultimate responsibility for the text be able to conceive of Aboriginal rights as a sim- remains mine. Furthermore, Elizabeth Steyn and ple category of land rights. It will need to deal my father Pierre Leclair are to be thanked for with the issue of the political status of Indigen- their elegant translation of my manuscript and so ous actors. A federal perspective might then fi nd should NN for her subtle editing proposals. favor in its eyes. 1 Cromwell, Act V, Scene IX, verses 5428-31: Th e Dramas of Victor Hugo, vol 19, original work *** published pre-1945, year unknown; reprint (London: Forgotten Books, 2013) at 410. I will conclude by emphasizing that federalism 2 Considerations on the Principal Events of the French quite probably cannot satisfy the existential need Revolution, ed by Aurelian Craiutu (Indianapolis: for meaning in politics as expected by some, Liberty Fund Inc., 2008) at 53-54. which is to say the institution of a form of power 3 See Jean Leclair, "Les périls du totalisme conceptuel that will restore a meaning to the fact of existing en droit et en sciences sociales" (2009) 14:1 Lex and of having to live together. Because it is based Electronica 1. Th is paper may also be found on the idea of compromise, because it is diffi cult online:
24 Volume 25, Number 1, 2016 been defending over the years a thesis bearing a “Forging a True Federal Spirit: Th e Repudiation close similarity with the underlying relational of the Myth of Quebec’s ‘Radical Diff erence’” in perspective proposed in the present article: see, in André Pratte, ed, Reconquering Canada: Quebec particular “‘Landed’ Citizenship: An Aboriginal Federalists Speak Up for Change (Toronto: declaration of Independence”, chapter six of Douglas & MacIntyre) 29. Th is article may also John Borrows’ text Recovering Canada — Th e be found online:
Constitutional Forum constitutionnel 25 d’emploi de la vie, un manuel de l’utilisateur de Jennifer Nedelsky, Law’s Relations: A Relational l’univers, transmissibles comme tels de génération Th eory of Self, Autonomy, and Law (Oxford: en génération et appartenant en propre, Oxford University Press, 2011); Martin Loughlin, exclusivement, à chaque groupe ethnogénétique. Th e Idea of Public Law (Oxford: Oxford University C’est alors, non pas qu’est apparue une culture Press, 2003); Rauna Kuokkanen, “Aboriginal Self- inauthentique — le terme n’a pas de sens — , mais Determination: From the Politics of Recognition que s’est posée la question insoluble de l’authenticité to Restructuring Relations” (this paper was (spontanée), et de l’inauthenticité (réfl échie), du presented at the ECPR General Conference held rapport des individus aux Leurs, aux autres et à in Montréal in August 2015). Soi. … [L]e mot ‘moderne’ ne veut rien dire d’autre 16 On the importance of taking into consideration que ‘contemporain’.» past and present relationships between Indigenous 10 Amartya Sen, Identity and Violence: Th e Illusion and non-Indigenous peoples, see Susan D. Dion, of Destiny (New York: W.W. Norton & Company, Braiding Histories. Learning from Aboriginal 2006) at xiii, xvi, 185 [Sen, Identity and Violence]. Peoples’ Experiences & Perspectives (Vancouver: 11 See Jean Leclair & Michel Morin, «Peuples UBC Press, 2009), particularly chapters 6 and 7; on autochtones et droit constitutionnel» in Stéphane the relational dimension of Indigenous research Beaulac & Jean-François Gaudreault-Desbiens, methodology, see Margaret Kovack, Aboriginal eds, JurisClasseur Québec — Collection Droit public methodologies: Characteristics, conversations, — Droit constitutionnel (Montréal: LexisNexis, and contexts (Toronto: University of Toronto 2015) 15/1 at 15/132 (loose-leaf edition); see Press, 2009); Margaret Kovack, “Emerging from also Jean Leclair, «Les droits ancestraux en droit the Margins: Aboriginal Methodologies” in constitutionnel canadien: quand l’identitaire Leslie Brown & Susan Strega, eds, Research as chasse le politique» in Alain Beaulieu, Stéphan Resistance, Critical, Aboriginal and Anti-Oppressive Gervais & Martin Papillon, eds, Les Autochtones Approaches (Toronto: Canadian Scholars’ Press/ et le Québec: Des premiers contacts au Plan Nord Women’s Press, 2005) 19; Shawn Wilson, Research (Montréal: Les Presses de l’Université de Montréal, is Ceremony: Indigenous Research Methods 2013) 299. (Halifax: Fernwood Publishing, 2008); for a harsh 12 All the ideas developed here derive from the criticism of “Western” research methods and a texts mentioned in the above footnotes and Jean description of attempts to construct a relational Leclair, “‘Vive le Québec libre!’ Liberté(s) et Indigenous methodology, see Linda Tuhiwai fédéralisme» (2010) 3:1 RNDC 1; Jean Leclair, Smith, Decolonizing Methodologies, Research and «Le fédéralisme: un terreau fertile pour gérer Aboriginal Peoples (Dunedin: University of Otago un monde incertain» in Ghislain Otis & Martin Press, 2009). Papillon, eds, Fédéralisme et gouvernance autochtone/Federalism and Aboriginal Governance 17 Worcester v Georgia, 31 US (6 Pet) 515, at 519 (Québec: Les Presses de l’Université Laval, 2013) (USSC 1832). 21. Others authors have embraced perspectives 18 Th e Statement of the Government of Canada on bearing some similarities with mine: Dimitios Indian Policy, 1969 (better known as the “White Karmis & Jocelyn Maclure, “Two escape routes Paper”) as submitted by Jean Chrétien in his then from the paradigm of monistic authenticity: post- capacity as Minister of Indian and North Canadian imperialist and federal perspectives on plural and Aff airs, constitutes the sole true attempt to seize complex identities” (2001) 24:1 Ethnic and Racial the whole Indigenous reality in an almost entirely Studies 361; Dimitios Karmis & Wayne Norman, individualistic perspective. And this is precisely “Th e Revival of Federalism in Normative Political why this policy has been such an utter failure. For Th eory” in Dimitios Karmis & Wayne Norman, an overview of Indigenous reaction to the White eds, Th eories of Federalism: A Reader (New York: Paper, see Kathleen A. van Dalfsen, Nationalization Palgrave MacMillan, 2005) 1; Tim Schouls, Shift ing of the Native Voice: Th e White Paper of 1969 and Boundaries: Aboriginal Identity, Pluralist Th eory, the Growth of the Modern Native Movement, paper and the Politics of Self-Government (Vancouver: submitted in partial fulfi lment of the requirements University of British Columbia Press, 2003). of the Honours Program in History, University of 13 Sen, Identity and Violence, supra note 10 at xii. British Columbia, Okanagan) at 37. Th is article 14 Ibid at 156-160. may be found online:
26 Volume 25, Number 1, 2016 19 For a very interesting plea in favour of establishing only to itself. Without this original split, which a “diplomacy at the local level” between First Plato later used in his defi nition of thinking as Nations and municipalities, see Paul Tennant, soundless dialogue … between me and myself, “Delgamuukw and Diplomacy. First Nations and the two-in-one, which Socrates presupposes in his Municipalities in British Columbia” in Owen statement about harmony with myself, would not Lippert, ed, Beyond the Nass Valley: National be possible.” Implications of the Supreme Court’s Delgamuukw 21 On the role of a federal perspective in Canadian Decision (Vancouver: Th e Fraser Institute, constitutional law as it relates to Indigenous issues, 2000) 143. see Jean Leclair, “Federal Constitutionalism and 20 Hannah Arendt, “Th inking and Moral Consider- Aboriginal Diff erence” (2006) 31:1 Queen’s LJ 521. ations: A Lecture” (1984) 51:1/2 Social Research 7. Under the infl uence of William Kymlicka’s work I Arendt writes (at 32-33): “To be sure, when I appear then still employed the vocabulary of nationalism. and am seen by others, I am one; otherwise I would With this reservation, I still consider what I said be unrecognizable. And so long as I am together then as pertinent. with others, barely conscious of myself, I am as I 22 R v Pamajewon, [1996] 2 SCR 821 at para 27; also appear to others. We call consciousness (literally, see Delgamuukw v British Columbia, [1997] 3 SCR ‘to know with myself’) the curious fact that in a 1010 at para 170 [Delgamuukw]. sense I also am for myself, though I hardly appear 23 Delgamuukw, supra note 22 at para 166 [emphasis to me, which indicate that the Socratic ‘being one’ added]; Tsilhqot’in Nation v British Columbia, is not so unproblematic as it seems; I am not only 2014 SCC 44 at paras 67, 144, [2014] 2 SCR 257. for others but for myself, and in this latter case I 24 R v Nikal, [1996] 1 SCR 1013 at paras 88, 106. clearly am not just one. A diff erence is inserted 25 Delgamuukw, supra note 22, at para 166 [my into my Oneness. … For myself, articulating this emphasis] and Tsilhqot’in Nation v British being-conscious-of-myself, I am inevitably two- Columbia, 2014 SCC 44 at para 67, 144, [2014] 2 in-one. … Human consciousness suggests that SCR 256. diff erence and otherness … are the very conditions for the existence of man’s ego as well. For this ego … experiences diff erence in identity precisely when it is not related to the things that appear but
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