Indigenous Difference and the Constitution of Canada

Indigenous Difference and the Constitution of Canada

PATRICK MACKLEM
Copyright Date: 2001
Pages: 336
https://www.jstor.org/stable/10.3138/j.ctt1287t1k
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  • Book Info
    Indigenous Difference and the Constitution of Canada
    Book Description:

    An investigation of the unique constitutional relationship between Aboriginal people and the Canadian state, a relationship that does not exist between Canada and other Canadians.

    eISBN: 978-1-4426-2790-1
    Subjects: Law, Sociology

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-2)
  4. Introduction
    (pp. 3-10)

    Between Lake Huron and Georgian Bay lies Manitoulin Island, the largest freshwater island in the world. Recorded in its landscape are the spiritual histories of the Ottawa, Ojibway, and Potawatomi peoples, who constitute the Three Fires Confederacy and who regard Manitoulin Island as their ancestral home. Known as the Island of the Great Spirit, Manitoulin Island contains a number of lakes, many of which are said to be connected by a series of underwater caverns and tunnels. A powerful underwater spirit or manitou known as Mishebeshu, encountered in visions and remembered in myths, is said to dwell in several of...

  5. Chapter One Method
    (pp. 11-46)

    The existence of a unique constitutional relationship between Aboriginal people and the Canadian state turns on what the constitution has to say about the matter. Yet determining the meaning of the constitution immediately raises matters of method. By ‘method,’ I refer to investigatory approaches to a number of interpretive and theoretical questions that are analytically prior to an inquiry into the constitutional status of Aboriginal people. For example, is the written text of the constitution clear, vague, or silent on the relationship between Aboriginal people and the Canadian state? Does the text exhaust the constitution’s meaning? What role do judicial...

  6. Chapter Two Culture
    (pp. 47-75)

    Aboriginal people belong to distinctive cultures that have been and continue to be threatened by assimilative forces within Canadian society.² They are not alone in this respect; other Canadian citizens also belong to distinctive cultures threatened by assimilation. Moreover, there is no one single Aboriginal culture; Aboriginal cultures are as varied and distinct as the cultures that comprise non-Aboriginal societies. Given that Aboriginal and certain non-Aboriginal cultures alike are threatened by assimilation, as well as the existence of deep diversity among Aboriginal cultures, what does it mean to speak of Aboriginal cultural difference as an aspect of indigenous difference? Aboriginal...

  7. Chapter Three Territory
    (pp. 76-106)

    Perhaps the most commonly noted aspect of indigenous difference is that Aboriginal people lived in and occupied portions of North America prior to European contact. Canadian law acknowledges the legal significance of the fact that Aboriginal people occupied the continent from ‘time immemorial.’² The law of Aboriginal title recognizes that, if they can demonstrate that their ancestors exclusively occupied territory at the time Britain asserted sovereignty and that they continue to occupy the territory in question, Aboriginal people enjoy the right of exclusive use and occupation of such territory for a variety of purposes, which need not be related to...

  8. Chapter Four Sovereignty
    (pp. 107-131)

    When representatives of the British colonies in North America decided to form a new confederation and call it Canada, they met in Charlottetown, Prince Edward Island, to complete the drafting of a set of constitutional principles that would serve to guide the new country in the future. But for a single reference to federal jurisdiction over ‘Indians, and Lands reserved for the Indians,’ the Constitution Act, 1867² makes no mention of the fact that, prior to European contact, Aboriginal people belonged to nations structured by ancient forms of government exercising sovereign authority over persons and territory.³ In the oftquoted words...

  9. Chapter Five The Treaty Process
    (pp. 132-159)

    When Sir Francis Bond Head, the lieutenant-governor of Upper Canada, arrived at the village of Manitowaning on Manitoulin Island in 1836, he was met by several thousand people who had assembled for an annual ceremony of gift-giving with the British. This practice had begun at a meeting between representatives of the British Crown and more than twenty Aboriginal nations at Niagara Falls in 1764, shortly after the British army had taken control of French garrisons on the Great Lakes. At that meeting, the parties affirmed an alliance of peace initially formed in 1677 and known as the Covenant Chain.² But...

  10. Chapter Six Interests, Rights, and Limitations
    (pp. 160-193)

    Legal rights – whether common law, statutory or constitutional, Aboriginal or otherwise – serve to protect certain interests from unjustifiable interference.² Property rights, for example, protect an owner’s interest in the use and enjoyment of his or her property.³ Similarly, the constitutional right of freedom of expression protects a number of interests, including an interest in the free flow of ideas.⁴ But what often goes unexplored in legal scholarship is the precise relationship between interests and rights. In hisLectures on Jurisprudence, the great American legal sociologist Roscoe Pound attempted to define the term ‘interest.’ Several aspects of Pound’s definition...

  11. Chapter Seven Indigenous Difference and the Charter
    (pp. 194-233)

    Thus far I have proposed that to the extent Canada aspires to a just constitutional order, Aboriginal interests with respect to culture, territory, sovereignty, and the treaty process require constitutional protection in the form of a wide-ranging set of Aboriginal and treaty rights. In this chapter, I examine another set of rights, the rights and freedoms guaranteed to all Canadians by the Canadian Charter of Rights and Freedoms. What bearing do rights guaranteed by the Charter have on the constitutional relationship between Aboriginal people and the Canadian state? Some scholars have argued that the Charter, premised on liberal values of...

  12. Chapter Eight Indigenous Difference and State Obligations
    (pp. 234-264)

    In this chapter, I reflect on the following question: does constitutional recognition of indigenous difference impose positive constitutional obligations on federal, provincial, and territorial governments to provide fiscal, social, and institutional entitlements to Aboriginal people? Fiscal obligations include funding arrangements and transfer payments to facilitate the establishment and maintenance of programs and governing structures. Social obligations include the provision of health care and educational benefits. Institutional obligations include the duty to negotiate treaties in good faith with Aboriginal nations as well as to establish institutional arrangements designed to resolve ongoing disputes between Aboriginal nations and federal, provincial, and territorial governments....

  13. Chapter Nine State Obligations and Treaty Negotiations
    (pp. 265-285)

    In the Nass River valley of northwestern British Columbia, the Nisga’a people mark their relationship to their ancestral territory by holding a settlement feast – also known as a potlatch – upon the death of one of their chiefs. A successor is chosen to receive the name and title of the deceased.² Sharing his wealth with those in attendance, the new chief assumes his responsibilities as head of the clan, and assumes ownership of the land and its resources in the name of the community. Other chiefs attend the ceremony to witness and approve of the transfer of responsibilities. In...

  14. Conclusion
    (pp. 286-288)

    Due north of Manitowaning Bay, across the North Channel that separates Manitoulin Island from the north shore of Lake Huron and Georgian Bay, is the La Cloche mountain range. Extending from Killarney west to the mouth of the Spanish River, the ancient white quartzite hills of La Cloche include Dreamer’s Rock, a sacred place where Ojibway youth undergo traditional rites of passage. Shawonoswe, a great Ojibway chief and healer, was once praying and fasting on Dreamer’s Rock when a thunderbird swooped down and commanded him to climb on its back. Through the air they soared until the thunderbird left Shawonoswe...

  15. Bibliography
    (pp. 289-322)
  16. Index
    (pp. 323-334)