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Indigenous Difference and the Constitution of Canada

Trudy Chapman

as a founding principle of a modern state, a belief in Aboriginal inferiority casts long shadows over the legitimacy of Canadian claims of territorial sovereignty. In contrast, recognizing constitution significance of indigenous difference equates difference with equality."

Indigenous Difference book cover Equality of Native people under the Constitution of Canada: this is the key to understanding University of Toronto professor Patrick Macklem's thesis in "Indigenous Difference and the Constitution of Canada." Macklem says that Aboriginal difference lies at the heart of European attempts at assimilation of the indigenous population. That originally, Aboriginal difference meant cultural inferiority. This attitude provided the foundation for future Aboriginal and non-Aboriginal interactions.

In this book, Macklem redefines the term indigenous difference under a positive light, seeing strength in the differences. He suggests that constitutional recognition of "indigenous difference," as he defines it, could provide a coherent framework within which longstanding Native issues could be resolved. The framework would be provided by the Constitution of Canada and the Charter of Rights and Freedoms, through our court system.

His thesis is pretty straightforward: that a unique relationship exists between Aboriginal people and the Canadian state. There are four facts that distinguish this relationship: the distinct nature of the various Aboriginal cultures; the prior occupancy of specific land; the prior sovereignty over that land and; the active participation of Native people in the treaty process. He calls this the "indigenous difference." Recognizing and protecting indigenous difference under the Canadian constitution, Macklem argues, will promote equality and maintain the ideals of justice.

Professor Macklem weaves Indigenous and early European history very quickly into the discussion of "indigenous difference." He talks of early Aboriginal spiritual beliefs and of how, in 1836, Upper Canada lieutenant-governor Sir Francis Bond Head arrived in Manitoulin Island to negotiate a land agreement with the people there. In negotiating with the Natives of the region for control over the land, Bond Head and the British Crown recognized the sovereignty held by the original inhabitants. He says that countless colonial encounters of this sort helped to build Canada as we now know it today. By beginning with the land and the belief system of Aboriginal people, Macklem spins a web of interconnectedness between people, land, ideas and justice.

The book discusses culture, territory, sovereignty, the treaty process, rights, international law, and various angles on indigenous difference as it relates to the Charter and state obligations. Each chapter includes legal arguments and understandable examples that bring the theory down to earth. Without the examples, the book is a difficult read for those without legal training.

At the same time, Macklem makes a compelling case that if indigenous difference were recognized under the constitution, protection of language and culture, property and individual rights would be easier to resolve. He suggests that a functional acceptance of indigenous difference is being seen in the recent agreements with northern Inuit people and the Nisga'a people of Canada's West Coast. Much of the legal arguments for these agreements lie in the four facts of aboriginal uniqueness. Under these real life deals, and Macklem's thesis, what was once considered inferior can now be equal.

published by university of toronto press
ISBN 0802080499

Trudy Chapman is a freelance journalist living and working in Toronto.

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