1 arrangements within other federations will focus FEDERAL SYSTEMS AND on provisions for constitutional recognition of ACCOMMODATION OF DISTINCT Aboriginal Peoples, arrangements for Aboriginal GROUPS: A COMPARATIVE SURVEY self-government (including whether these take OF INSTITUTIONAL the form of a constitutional order of government ARRANGEMENTS FOR ABORIGINAL or embody other institutionalized arrangements), the responsibilities assigned to federal and state PEOPLES1 or provincial governments for Aboriginal peoples, and special arrangements for Ronald L. Watts representation of Aboriginal peoples in federal Institute of Intergovernmental Relations and state or provincial institutions if any. Queen's University Kingston, Ontario The paper is therefore divided into five parts: (1) the introduction setting out the scope of the paper, the value of comparative analysis, and the 1. INTRODUCTION basic concepts that will be used; (2) an examination of the utility of the federal concept (1) Purpose, relevance and scope of this for accommodating distinct groups and hence the study particular interests and concerns of Aboriginal peoples; (3) the range of variations among federal The objective of this study is to survey the systems which may facilitate the accommodation applicability of federal theory and practice for of distinct groups and hence Aboriginal peoples; accommodating the interests and concerns of (4) an overview of the actual arrangements for distinct groups within a political system, and Aboriginal populations existing in federations from that analysis to identify the range of pos- elsewhere; (5) some brief conclusions about the sible ways in which federal arrangements might lessons for Canada. provide Aboriginal peoples self-government within the larger Canadian political framework. The study will examine the implications both of the federal concept and of comparative expe- rience of federal political systems outside Canada in order to survey the variety of possible federal arrangements that might be employed within Canada in any effort to redefine the relations between the Aboriginal peoples and the Canadian federation. In addition to examining the potential ways in which a federal system can accommodate distinct groups and hence Aboriginal peoples with their special interests, the study will also survey arrangements that have been employed within other federations containing Aboriginal peoples. The review of 1This paper was originally prepared for the Royal Commission on Aboriginal Peoples which reported in October 1996. Working Papers 1998 (3) 8 1998 IIGR, Queen=s University 2 Ronald L. Watts, Federal Systems and Accommodation of Distinct Groups It should be emphasized at the outset that the included in this study is Russia. While some main value of this study for the Royal Commis- references will be made to it, the authoritarian sion will be not in providing specific models to be character of the preceding U.S.S.R. and of the picked off the shelf but rather in identifying the succeeding Russian federation limits the rele- potential ways in which the Royal Commission vance of those examples to the Canadian scene might apply the federal idea to think creatively and therefore this study will not examine them in about establishing Aboriginal self-government detail. within Canada. Clearly meaningful self-government would be virtually impossible to In addition some other federations or achieve within a unitary conception of the state or federalizing political systems which do not society. This paper examines the ways in which contain significant Aboriginal populations but the federal idea may open up possibilities for whose organization and political experience give Aboriginal self-government. Among the key insights into ways of accommodating distinct values implicit in the federal idea are the notions groups will also be referred to. These include of multiple identities and of shared or divided Belgium, Germany, Nigeria, Spain and sovereignty among them. The combination of Switzerland (each individually summarized in Ashared-rule@ and Aself-rule@ which lies at the Appendix B). heart of the federal idea is fundamental here. So too is the idea of Acompact@ and Acovenant@ which This study does not deal with non-federal uni- implies the voluntary nature of association in a tary systems that contain Aboriginal peoples, federal system and links closely with the tradition such as New Zealand and Scandinavia. These of treaties. It is in opening our minds to the are appropriately of interest to the Royal Com- possibilities that such ideas offer for achieving mission, but they will not be considered in any Aboriginal self-government within the Canadian detail in this study. There are two reasons for federation that a comparative analysis of the this: first the objective of this study is to exam- federal concept and its application elsewhere ine the potential and actual ways in which federal may serve a useful purpose. systems can accommodate Aboriginal peoples, and second, the Royal Commission will have the (2) The Utility of Comparative Analysis benefit of separate studies focusing directly on arrangements in New Zealand and the Scandina- For purposes of comparison, specific reference vian countries. Nor since the focus of this paper is will be made to a number of federations contain- on federal rather than unitary systems, does it ing Aboriginal populations: the United States of attempt to deal more generally with con- America, Australia, India, Malaysia, Pakistan, sociational arrangements within unitary systems Argentina, Brazil and Mexico (each individually containing diverse populations such as the summarized in Appendix A). Because several Netherlands (see Lijphart 1969, 1977 and 1984 studies for the Royal Commission focus specifi- for these). cally on the arrangements for Aboriginal peoples in the United States (e.g. R. L. Barsh and T. One of the reasons for undertaking this study is Julnes), Australia (e.g. H. Reynolds) and India that Canadians seem to be preoccupied with what (e.g. D. Sanders) details of the arrangements in they assume to be their own unique problems and these federations will not be set out in this paper to be reluctant to undertake comparative but they will be considered in a more general way analyses. Furthermore, when we do undertake in relation to the particular issues being comparisons, Canadian comparative work tends addressed. One other federation with a signifi- to focus on our neighbour to the south and to cant Aboriginal population that might have been underestimate the value of comparisons with Working Papers 1998 (3) 8 1998 IIGR, Queen=s University Ronald L. Watts, Federal Systems and Accommodation of Distinct Groups 3 other federations which, because of their contrasts draw attention to certain features of our parliamentary institutions or their socio-cultural own arrangements whose significance might and ethnic diversity, may be more relevant to the otherwise be underestimated. Both positive and Canadian political context and problems. negative lessons are useful. Successful arrangements may point to the potential value of Comparative studies have some real benefits in particular institutions or to the conditions and helping us to understand better our own problems processes necessary to make them work. Failures and to identify the range of possible solutions. and difficulties elsewhere may alert us to the Comparative studies identify options that might possible problems that may arise from particular otherwise be overlooked, identify unforeseen institutional arrangements or the conditions in consequences that may flow from particular which they were applied. arrangements, and through similarities or But if we are to gain full value from examples of political mechanisms that may comparative analyses it is important too always facilitate the accommodation of distinct groups keep in mind their limitations. No single pure and particularly Aboriginal peoples. model of federation is universally applicable. The institutions and processes of existing federal While this study is directed at institutional ar- political systems have varied in many ways in rangements that might accommodate distinct order to fit different circumstances (this is groups and particularly the special interests of discussed further in the next sub-section). One Aboriginal peoples, it must be understood that cannot, therefore, simply pick models off a shelf. understanding the operation of political institu- They have to fit the particular circumstances of tions requires an examination of more than the each country. Even where similar institutions are formal governmental structures. Indeed, it re- adopted, different underlying conditions may quires taking account of the interaction of societ- make them operate differently. ies, structures and processes. Particularly im- portant is the study of the interaction between the A classic illustration of this is the operation of social issues relating to homogeneity and diver- the virtually identical procedures for formal con- sity and particular institutional structures. This stitutional amendment in Switzerland and can provide us with a better understanding of the Australia. Both involve referendums for cooperative and competitive relationships that ratification which require double majorities, i.e. a shape the operation and evolution of federations. majority of the federal population and majorities Equally important is analysis of the complex in a majority of the cantons or states.