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Diversity and uniformity in conceptions of Canadian citizenship Horner, Byron Bennett Magnusson 1994

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Diversity and Uniformity in Conceptions of Canadian CitizenshipbyByron Bennett Magnusson HomerB.A. (Honours), Carleton University, 1992C.E.P., Institut d’Etudes Politiques de Paris, 1993A THESIS SUBMITTED iN PARTIAL FULFILLMENT OFTHE REQUIREMENT FOR THE DEGREE OFMASTER OF ARTSinTHE FACULTY OF GRADUATE STUDifiSDepartment of Political ScienceWe accept this thesis as conformingto the required standardTHE UNIVERSITY OF BRITISH COLUMBIAAugust 1994Byron Bennett Magnusson Homer, 1994In presenting this thesis in partial fulfilment of therequirements for an advanceddegree at the University of British Columbia, I agreethat the Library shall make itfreely available for reference and study. I further agreethat permission for extensivecopying of this thesis for scholarly purposes may begranted by the head of mydepartment or by his or her representatives. It isunderstood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.(Signature)____________________________Department of %Eco..\The University of British ColumbiaVancouver, CanadaDate_________DE-6 (2/88)iiAbstractThis thesis uses philosophical and conceptual analysis to examine communitariancritiques of homogenous liberal conceptions of citizenship and the contemporary recognitionpressures in the Canadian polity. It attempts to make some observations on the degree ofdifference that the Canadian society could support without destroying the sentimental bond ofcitizenship that develops when citizens feel they belong to the same moral and politicalcommunity. The assumption made in our introduction is that diversity or differentiation becomestoo exaggerated when citizens no longer feel like they are similar and can reach agreement oncommon objectives. This thesis is consequentialist in nature. It seeks to respond to the questionof whether or not the “federal spirit” that has preserved the Canadian state intact can helpCanadians take the conceptual leap necessary to accept further differential citizenship foraboriginal and Québecois national minorities who seek expanded self-government and specialprovisions to preserve and promote their collectivities, and for non-territorial groups united bya shared life situation who seek group rights and representations.In Part I of this thesis we examine theoretical considerations about diversity anduniformity in both liberal and communitarian conceptions of citizenship and review Kymlicka’sattempt to reconcile cultural membership within liberal theory. We observe that liberals rejectgroup rights and radical cultural pluralism out of concern that they may lead to a reduction ofiiiindividual autonomy and an erosion of cross-group dialogue. We demonstrate that although theliberal state is not completely neutral with regards to the promotion of a certain conception ofthe good life, it is more neutral than a communitarian state because it provides for individualautonomy and creates a structure for democratic dialogue. However, Kymlicka’s work showsthat within the global economy, cultural identity is an increasingly important qualitative elementin an individual’s life, providing her with an enhanced local social structure and with personalself-respect.Although a reconciliation of liberal and communitarian conceptions of citizenship appearunlikely in pure theory, in the Canadian context, constitutional provisions have afready actedto create elements of individual and collective rights. This reality implies that new theories haveto be developed to explain the dynamic between individual and collective rights in particularpolitical cultures. In Part II, we attempt to reconcile the fragmented concepts of citizenshipwhich afflict the contemporary Canadian polity. This Thesis sets out that status quo federalismand homogenous liberal citizenship are threatening the stability of the Canadian polity.However, because of the interactive loyalties and differentiation inherent in the Canadian federalregime, federalism may provide the flexibility to accommodate the demands of Québécois, aswell as aboriginal nationalists. Conversely, this thesis maintains that the arguments in favourof a politics of difference for oppressed social and cultural groups should be rejected, not onthe grounds that these groups do not exist or that they do not speak in “different voices”, butbecause it would undermine the democratic dialogue and test the fragile ties which bond citizensto one another. A further reason to reject a politics of difference or radical cultural pluralismivis that it would limit the autonomy of individual members of groups who want to be judged bytheir actions and words rather than their ethnicity, culture or gender. The liberal state can pursuepolicies to include non-territorial groups without granting group rights and representation.For their part, Aboriginal communities and the province of Quebec should be recognizedas distinct societies in Canada. The meaning of distinct society should be defined using section1 of the Charter as a model. These distinct societies should be given minor group rightprovisions, in order to preserve and promote their collectivities which do not violatefundamental human rights These minor provisions could be considered reasonable limitationsin free and democratic aboriginal and Québécois distinct societies within Canada.Concomitantly, any new constitutional accommodation must also recognize that a preconditionof federal citizenship is that all citizens whether members of self-governing aboriginalcommunities or citizens residing in the province of Quebec must accept decisions of the federaljurisdiction and be able to transcend their personal or national motivations and acknowledgetheir responsibility to others in the Canadian moral community if they hope to retain thebenefits that our community provides all of its citizens.VTABLE OF CONTENTSAbstract iiTable of Contents vAcknowledgement ViiDedication viiiPreface 1Introduction 8Part I: Theoretical considerations about diversity and uniformity in conceptions ofcitizenship in liberal democratic societies 14Chapter 1 Liberal considerations about differential citizenship 15A. Liberal orthodoxy and the politics of difference: a defense of formalequality 16B. The myth of the neutral state in liberal thought 181. The liberal state as a tolerant structure for dialogue 202. Liberalism and the promotion of a certain conception of the good life inCanada 21Chapter 2 Cultural relativism and group rights 24A. Positive liberty, recognition and modern identity 25B. Group rights, cultural pluralism and the seeds of societal anarchy 26C. Cultural incommensurability and identity absolutism 28Chapter 3 The attempt by Kymlicka to reconcile cultural membership with liberal theory32A. Kymlicka’s reinterpretation of the contemporary liberal position concerningindividual rights 321. The Rawisian conception of formal equality 332. Cultural membership as a key element in the Kantian conception of respect35B. Weaknesses in Kymlick&s attempted reconciliation 381. Kymlicka’s failure to satisfy both communitarian and liberal thinkers 382. Kymlicka’s selective reference to liberal thinkers 403. Kymlicka’s belief that culture is a circumstance rather than a choice 414. Kymlicka’s failure to differentiate between the claims of different groups 44Part II: Reconciling conceptions of citizenship in Canada 46Chapter 4 Federalism and conceptions of citizenship in Canada 47A. The nature of Canadian federalism 48vi1. Canadian federalism and the development of competing loyalties 492. Federalism and the exacerbation of regional cleavages 51B. The evolution of the Canadian federal state from Quebec’s perspective 531. The BNA Act as a “pact of honour” between French and English speakingCanadians 542. The Tremblay Report as a framework for Quebec’s view towards culturalpreservation and Canadian federalism 563. The Massey Commission and the outline of a Canadian citizenship based ona national commitment to liberal values 584. The failure of the Meech Lake and Charlottetown Accords 60C. Liberalism in ROC and the concern for community in Quebec: a reconciliationin conceptions of Canadian citizenship 611. The relationship between individual and collective rights in Canada andQuebec 622. Conceptions of the good life in Canada and Quebec 653. The need to distinguish nationality from citizenship 67Chapter 5 Aboriginal rights, individual rights and Canadian citizenship 71A. Historical and contemporary political considerations about aboriginal grouprights and citizenship in Canada. 74B. Group versus individual rights and the applicability of the Charter of Rightsand Freedoms to self-governing Indian communities 771. The mainstream Indian position concerning the applicability of the Charter792. The minority Indian position concerning the applicability of the Charter 823. The lack of consensus about the applicability of the Charter 85C. The degree of commensurability between Indians and non-Indians inCanada 871. Indian citizenship 882. The existence of a moral community between Indian and non-IndianCanadians 913. A reconciliation of Indian and Canadian citizenship 94Chapter 6 Non-territorial groups and the politics of difference in Canada 100A. The rationale for differentiated citizenship 102B. A critique of the politics of difference 1051. Which groups deserve differentiated citizenship? 1052. The dangers of stigmatization 1063. The erosion of democratic dialogue 1084. The agenda of advocates of the politics of difference 110Conclusion 112Selected Bibliography 122viiAcknowledgementAll of my ideas have been developed through discussion with Stephanie LeBlond. Hercomments, editing prowess and personal support have been crucial in the completion of mythesis. I am deeply grateful for her love and support.I would like to also extend my heartfelt thanks to my supervisor, Professor Sam LaSelvaand to my examiner Professor Alan Cairns who provided me with insights and support throughout my year at UBC and demonstrated a high degree of professionalism and humanity.I would also like to thank my friends Mark Graham and Roger Greger for going overprevious drafts of my thesis and providing valuable comments and insights. Finally, I owe muchto the love and support of my family. Any remaining errors or omissions are mine alone.viiiDedication:I would like to dedicate this thesis to the memory of my dear sister, Dr. Cynthia Joan Homer(April 19, 1964 - April 17, 1994)Her love, friendship and academic and professional achievements always encouraged and willcontinue to nourish my academic pursuits.1Preface“A conununity of citizens owes the character of its existence to what its constituentmembers have in common and this entails transcending the order of individual needs and wantsto recognize that we are a moral body whose existence depends on the common ordering ofindividual needs and wants into a single vision of the future in which all can share.”Benjamin Barber, Strong Democracy“The point of the cultural pluralist’s arguments is that imposing a unitary conception ofcitizenship on historically excluded groups won’t instill a sense of common identity or purposeeither. If excluded groups do not see an affirmation of their identity in the institutions of thenation, they will continue to feel excluded and marginalized.”Will Kymlicka, “Recent Work in Citizenship Theory”Citizenship is a multi-layered concept. In its ancient Greek sense it implied the act ofbelonging to a community and involved a reciprocal relationship of duties, obligations andrights. In contemporary liberal democracy, citizenship has become less duty oriented andincreasingly focused on political and social rights to be expected from the community. In hisessay, “Recent Work in Citizenship Theory”, Kymlicka traces the different currents of politicalthought which shape conceptions of citizenship theory. His survey of this literature reveals thatcitizenship is a prominent issue across the spectrum of political thought. For example, twentiethcentury neo-conservative thinkers including Hayek, argue that “welfare citizenship” fails toadequately focus on the duties and responsibilities of citizens. They blame the passive natureof rights-based citizenship as a principal cause of apathy and loss of public spiritedness in thepublic arena and contend that citizens should be as economically self-sufficient as possible andvoluntarily serve their community. Similar to this strand of conservative thought, civil societytheorists argue that a healthy democracy requires a degree of civility and self-restraint by2citizens.’ These writers contend that the role of the state has expanded at the expense of civilsociety and argue that through offering blanket tax credits for voluntary organizations,citizenship could be reinvigorated.The left, for its part, dismisses the duty-oriented discourse of elements of contemporaryconservative thought and argues that participatory democracy and civic life should bereinvigorated by economic citizenship.2Several leftist thinkers believe that voluntary citizenshipconcepts fail to acknowledge the fact that certain groups have unequal means to participate. Forexample, the feminist critique of contemporary liberal democratic citizenship argues that womencannot participate as full citizens because they lack resources due to lower wages and lack timesince they are assigned child rearing roles in the family.3Feminists therefore claim that societymust re-engineer its patriarchal structure in order to achieve equal citizenship. Liberal virtuetheorists, who also share a state-enforced view of citizenship, contend that interest groupliberalism must be made more transparent to permit a public debate on policy issues.The goal of this thesis is not to engage in an abstract examination of rights oriented orduty oriented conceptions of citizenship. Rather, our objective is to use philosophical andKymlicka, Will, “Recent Work in Citizenship Theory” (Toronto: University of Toronto Press,1992), 12.2 Thid.See also Chantal Mouffe, ed., Dimensions of Radical Democracy: Pluralism, Citizenship andCommunity (London: Routledge, 1992)Ibid., 15.3conceptual analysis to examine communitarian critiques of homogenous liberal conceptions ofcitizenship and the recognition pressures in the contemporary Canadian polity.This essay will examine the communitarian critique that liberal citizenship focuses onlegal rights and material benefits at the expense of identity and culture issues. Among themultiple strands of communitarian thought Taylor, in particular, emphasizes the importance ofrecognition to modern identity. He believes that ethnocultural identity, shared language andlifestyle identities are important aspects of individuals lives and may be deserving of affirmationin liberal democratic societies. However, some elements of communitarian thought such as,theocratic communitarians, reject the toleration of difference, while other communitariansbelieve that community is impossible unless the community is a face to face collectivity whereall members know each other. We will specifically analyze one strand of communitarian thoughtand the particular sense of community it advocates by focusing on national minorities,ethnocultural groups and communities of shared life situations in contemporary liberaldemocracies.In contemporary Canadian political thought, the belief in the liberal sentiment thatdifferences between citizens can be transcended by our common citizenship is rejected byTaylor as a superficial portrayal of the “deep differences” in Canadian society. For Taylor, thereare distinct sociological nations in Canada: the multiple aboriginal nations, the Quebécois andEnglish Canada or “the rest of Canada” (ROC). Since Confederation, Québécois and aboriginalnationalists have resisted assimilation into a purely Canadian citizenship. These “national4minorities” see themselves as self-determining nations with distinct cultures and shared historiesthat pre-date the Canadian state. Both groups received special status upon their entry intoConfederation. Canada became a federal state largely in order to accommodate French-speakingCanadians living in Lower Canada. Conversely, in the British North America (BNA) Act of1867, status Indians were given special constitutional status and were subsequently treated as“wards” of the Canadian state who had to be assimilated into the dominant culture. As Johnsonsarcastically writes, “for the first nations over whom Canada asserts jurisdiction, the experienceof Canadian citizenship has been somewhat less than ennobling.”4In fact, until 1960, if statusIndians wanted to become full Canadian citizens, they were obligated, through the process ofenfranchisement, to give up their Indian status. For the native peoples of Canada, Canadiancitizenship was viewed as a tool of assimilation, and as a mechanism for the state to justify itsprolonged assault on native culture. As a result, contemporary aboriginal nationalists reject theidea of Canadian citizenship and seek substantial autonomy in order to protect their distinctsocieties. Aboriginal groups including the Assembly of First Nations (AFN) argue thataboriginal culture is incommensurable with the procedural liberalism that imbues the Canadianpolitical culture. They seek the establishment of aboriginal self-government, exempt from theCharter. For its part, the province of Quebec has been seeking recognition as a distinct societywithin Canada with special powers to preserve and promote the Quebécois collectivity.However, Quebec and aboriginal demands for recognition as distinct societies have beenJohnson, Darlene, “First Nations and Canadian Citizenship,” in William Kaplan, ed.,Belonging (Montreal: McGill-Queens University Press: 1993), 349.5met with apprehension by the citizens and the political elites of English Canada. ROC issuspicious of collective rights and views these recognition pressures as a threat to the prevalentliberal conception of citizenship. This apprehension is embedded in a profound misperceptionbetween ROC and Quebec concerning the nature of Canadian federalism. Quebec views Canadaas a pact of honour while ROC maintains that the equality of provinces is the preeminentprinciple of federalism.There is also an increasing body of literature which argues that there are otherdifferences between Canadians that are as deep as those among English Canadians, FrenchCanadians and aboriginal peoples. For example, Young and Jackel argue for “differentiatedcitizenship” in the form of group rights and representation for both cultural and social groupswhich are oppressed by racist, sexist, homophobic, ageist and ablest behaviour.5Moreover, incontemporary political thought, there is an expanding literature which argues that oppressedsocial and cultural groups cannot be represented by anyone outside of their group, and thereforemerit group rights and institutionalized representation.In order to take into full consideration the citizenship debate in Canada, this paper willfocus on the demands of Status Indian and Quebecois nations within Canadian federalism andwill also examine the demands of non-territorial communities. However, this thesis will notYoung, Iris, “Polity and Group Difference: a Critique of the ideal of Universal Citizenship,”Ethics (Vol. 99, n.2, January 1989), 7.Jackel, Susan, “Rethinking Equality and Citizenship,” (Mimeo distributed in Political Science502, UBC, 1994), 45.6enter into an extensive justification of the right to self-determination, except to note that incontemporary Canadian politics, the Québecois and aboriginal collectivities are making claimsfor increased autonomy.Our examination will attempt to discern the degree of differentiation that the Canadianliberal democracy can bear. The thesis is consequentialist in its orientation and seeks to respondto the question of whether or not the “federal spirit”6 which has preserved the Canadian stateintact can help Canadians make the conceptual leap necessary to accept further differentiatialcitizenship for aboriginal and Quebecois Canadians. In this thesis, when we speak of “ROC”or “Quebec”, we are referring to the elite representatives and institutions of English Canada andQuebec. When we discuss “status Indians” in Canada and aboriginal self-government we arereferring to reserve-based status Indians as defined by the Indian Act and their representativebody the AFN, unless otherwise stated. Although the word Indian is criticized as being a termimposed upon aboriginal nations, it is also used by different aboriginal groups in Canada todifferentiate between reserve based status Indians, Métis and Inuit Nations and will thereforebe used for reasons of clarity. By limiting our discussion to status Indians, our discussion ofaboriginals in Canada is therefore incomplete, because we do not examine the unique positionsof Métis and Inuit peoples in Canada. However, this limitation is necessary for reasons of spaceand the need to simplify; and although our study of aboriginal is incomplete, we will focus on6 Carl Friedrich described the federal spirit as follows: the federal spirit involves a highly pragmatic kind of politicalconduct which avoids all insistence upon agreements of fundamentals and similar forms of doctrinal rigidity. Suchbehaviour proceeds in the spirit of competition and accommodation.” In Trends in Federalsim in Theory and Practice(New York: Praeger, 1968), 39.7the largest and most significant category of aboriginal peoples in Canada.8IntroductionLiberal thought has traditionally assigned priority to individual rights over collectiverights. The enlightenment values of individual rights, universal values and uniform nationalcitizenship were originally criticized by thinkers of the French counter-revolution, by eighteenthand nineteenth century continental romantics and by Herder. In contemporary political thought,the Herderian criticism of enlightenment values has been seized by post-modern and culturalpluralist thinkers in order to criticize the liberal conception of justice as sameness. Thiscontemporary criticism argues that liberal “equality of treatment” promotes assimilation, reflectsa cultural bias and leads to unjust treatment of oppressed cultural or social groups.7Historically,nineteenth century liberal thought assumed the desirability of the assimilation of culturalminority groups. This assimilationist ideal was embraced by thinkers such as Lord Durham, whorecommended that the French speaking majority of Lower Canada be assimilated into theEnglish majority. Durham contended that deep rooted cultural cleavages in a modern nationwere incompatible with political and economic justice.8 The liberal conception of justice asequality of treatment also inspired the UN Declaration of Human Rights. In Canada, the liberalgoal of equality and uniform citizenship was one of the Liberal government’s principal reasonsfor the recommendation in the 1969 White Paper on Indian Policy to eliminate differentialYoung, Iris Marion, Justice and the Politics of Difference (Princeton: Princeton UniversityPress, 1990), 161.8 Ajzenstat, Janet, “Liberalism and Assimilation: Lord Durham Reconsidered,” in StephenBrooks, ed., Political Thought in Canada (Toronto: Irwin Publishing, 1984), 243.9citizenship between status Indian and non-Indian Canadians. In the 1960’s, many liberals wereoptimistic that modernization and liberal individual rights would eventually make ethnicattachment irrelevant.However, since the 1960’s, critiques of liberal democratic citizenship have developed tocriticize the liberal conception of “justice as samenesst’.The communitarian critique opposes theliberal transformation of humans into “rights bearing individuals” and the social justice critiqueargues that the extension of equal citizenship rights has not led to social justice and equality.Both of these assaults on the traditional concept of liberal democratic citizenship maintain thatidentical treatment often produces inequality and that true equality can only be achieved throughthe accommodation of differences. Taylor’s neo-communitarian critique, for example, argues thatliberal citizenship neglects identity and cultural issues. This critique asserts that the liberal state,by favouring procedural liberalism over cultural membership promotes a certain conception ofthe good life and therefore contradicts liberal assertions that the liberal state be neutralconcerning questions of the good life. Other commentators on uniform citizenship haveattempted to demonstrate that cultural membership has a more significant status in liberal theorythan is explicitly recognized.9Among these critics of the absolutist individual rights paradigm,Kymlicka has attempted to defend and interpret minority rights as an integral element withinKymlicka, Will, “Liberalism, Individualism, and Minority Rights,” in Allan Hutchinson andLeslie Green eds., Law and Community (Toronto: Carswell, 1989), 188.See also Kymlicka, Will, Liberalism, Community and Culture (Oxford: Oxford University Press,1989)10the liberal tradition. Kymlicka argues that cultural membership determines an individual’s rangeof options and conception of the good, and that cultural minorities may face disadvantagesbecause of their cultural membership. Therefore, individuals deserve to have group rights torecognize and protect their identities.1°Other critics of uniform citizenship have promoted a “politics of difference” foroppressed cultural and social groups. This current of critical thought contends that differencesin culture, gender and social status are almost incommensurable, and that the only way toattempt to resolve these deep differences is to provide institutionalized means for the explicitrecognition and representation of oppressed groups.’1 Accordingly, national institutions inCanada are criticized for not adequately taking into account the particular cultural and socialidentities of citizens.This phenomenon is not unique to Canada. In fact all contemporary liberal democracieshave been assaulted by an awakening of group identity. These groups seek to enlist the powerof the state to positively affirm the group and to support political mobilization.’2The spectaculargrowth in individual, group and national self-consciousness has been described as a byproduct10 Ibid., 189.Young, “Polity and Group Difference: a Critique of the ideal of Universal Citizenship,” 7.12 Cairns, Alan, Williams, Cynthia, Constitutionalism, Citizenship and Society in CanadaVolume 33 (Toronto: University of Toronto Press, 1985), 8.11of democracy and capitalism in a context of relative affluence.13The cultural factors which havecontributed to this movement are the post-modern assault on established values and the lackof credibility of public institutions. The result of this value flux, according to Elshtain, is thatprivate values and identities dominate the traditional role of the citizen.14The recognition pressures in Canada and other liberal democracies have profoundimplications for traditional democracy which is based on the concept that citizenship transcendsparticularity and difference. Is this traditional conception of democratic citizenship compatiblewith a multicultural and multi-racial society? Would differentiated citizenship in Canada dilutethe bonds of common citizenship to the extent that people would no longer feel like they belongto a single community? To what extent may difference be expressed without destroying thecommon purpose of a liberal democratic society?Canada is a multi-national country originally composed of native peoples, and resultingfrom the federation between English and French speaking residents of Upper and LowerCanada. Canada is also a poly-ethnic state because of the steady flow of immigrants.15 TheCanadian state has afready entrenched collective rights of minority language rights,multiculturalism, and catholic and protestant schools. These group rights are juxtaposed with13 Ibid., 11.14 ELshtain, Jean Bethke, Democracy on Trial (Concord: Anansi Press, 1993), 40.15 Kymlicka, Will, “Liberalism and the Politicization of Ethnicity,” in The Canadian Journalof Law and Jurisprudence (University of Western Ontario, July 1991, Vol. I #2), 239.12the individual rights-oriented Charter of Rights and Freedoms. The nature of Canadianfederalism also leads to a division of loyalties between regional and national identities. Theeffect of this division is that the question of priority of membership remains open. Canadiansexhibit a plurality of identities and appear to lack a common purpose or unifying force at acrucial period of Canada’s history. There are a number of factors in the contemporary politicalsetting that will test Canadians commitment to tolerance. The majority of federal MP’s fromQuebec are from a party that seeks the secession of the province. The Parti Québecois (PQ),who also seeks the secession of Quebec seem poised to return to power. Furthermore, the RoyalCommission on Aboriginal Peoples seems likely to recommend an extensive package ofaboriginal rights which will give native peoples in Canada substantial autonomy and asubstantially different relationship with the state than non-native Canadians. Given thecontemporary political setting, the reconciliation of the legitimate demands of aboriginals andQuebec for recognition of their distinct societies within Canada will require Canadians to acceptfurther differentiation for aboriginals and Quebec citizens. Our debate must attempt to discernthe level of diversity between citizens where people begin to feel that they no longer belong tothe same political and moral community. Although this level is not readily quantifiable, we canargue that citizenship becomes too differentiated when citizens or groups of citizens can nolonger reach agreement on common objectives.In an effort to determine the degree of difference that Canadian society can support, inPart I of this thesis we will examine theoretical considerations about diversity and uniformityin both liberal and communitarian conceptions of citizenship. In Chapter 1 we will review13liberal considerations about differential citizenship. In Chapter 2 we will examine the post-modern emphasis on cultural relativism and the challenges posed by the expression of grouprights in a liberal democratic society. In Chapter 3 we will analyze Kymlicka’s attempt toreconcile cultural membership with contemporary liberal thought. In Part II of this paper we willexamine the fragmented conceptions of citizenship which afflict the Canadian polity. In Chapter4 we will review the impact of federalism on conceptions of Canadian citizenship and thedifficulty in reconciling the aspirations of the province of Quebec to preserve its language andculture with ROC’s commitment to the equality of provinces and to the supremacy of individualrights. In Chapter 5 we will attempt to discern the challenge of aboriginal nationalism and willattempt to reconcile status Indian conceptions of citizenship with Canadian citizenship. Finally,in Chapter 6 we will critically examine the arguments employed to advocate a politics ofdifference for non-territorial groups in Canada.14PART I Theoretical considerations about diversity and uniformity in conceptions ofcitizenship in liberal democratic societiesAccording to Gutman, “the traditional liberal democratic conception of formal equalcitizenship underestimates the need for people, as members of discrete ethnic, linguistic andother cultural groups, for recognition and preservation of their particular cultural identities. u16Gutman’s observation is supported by a host of communitarian thinkers. This communitariancritique of undifferentiated citizenship has led some theorists to expand the concept ofcommunity to include social groups such as low income people, women, gays and lesbians, thehandicapped and the aged. For example, Young argues that the state should create group rightsand representation for social and cultural groups that are oppressed by racist, sexist,homophobic, ageist and ablest behaviour. Post-modern pluralism sets out the view of the stateas the “conferrer of legitimacy and as the mediator of identities”, whereas liberals view the stateas providing the framework for liberty and democracy. 17An examination of the arguments put forward by communitarians and by the advocatesof a politics of difference requires an initial review of the traditional liberal view of differentialcitizenship in Chapter 1. In Chapter 2 we will analyze the arguments put forward by culturalrelativists, and in Chapter 3 we will examine Kymlicka’s attempt to reconcile culturalmembership with liberal theory.16 Gutman, Amy, ed., Multiculturalism and the Politics of Recognition (Princeton: PrincetonUniversity Press, 1990), 9.17 Kernerman, Gerald, (Lecture: March 23, 1994)15Chapter 1: Liberal considerations about differential citizenshipThe French revolution proclaimed the enlightenment values of formal equality. The 1789Declaration of the Rights of Man and of the Citizen set out the equality of rights for all citizensand formal equality before the law.18 These values were in sharp contrast with the feudal viewthat an individual’s original status was determined by religious or ethnic membership or statusin a statified society.’9 For Berlin, the French revolution, in its Jacobin form, was also aneruption of “positive freedom, of collective self-direction on the part of a large body ofFrenchmen who felt liberated as a nation.”2°In liberal democratic societies, the egalitarian idealwas refined with the growth of the welfare state and the emancipatory social movements of thetwentieth century. Concomitantly, the expression of minority cultural membership becametolerated and protected in the private sphere. Our analysis of liberal considerations aboutdifferential citizenship will first examine the argument that group rights are likely to restrictindividual rights. Second, we will expose the myth of a neutral liberal state in liberal thoughtand suggest that liberal democratic society is based on a consensual commitment to a set ofnorms and values which enforce a specific conception of the common good.18 Bobbio, Noberto, Liberalism and Democracy (London: Verso, 1990), 33.Kymlicka, “Recent Work in Citizenship Theory,” 24.20 Berlin, Isaiah, Four Essays on Liberty (Oxford: Oxford University Press, 1969), 162.16j,..Liberal orthodoxy Lfljpolitics Ldifference: &defense Lformal equalityIn nineteenth century liberal thought, Lord Durham and others rejected minority grouprights. For Lord Durham, liberalism presupposed that particular traditions and particular loyaltieshad to be discarded if liberal beliefs were to be disseminated, and liberal values to prevail.2’According to Ajzenstat, Lord Durham’s belief that assimilation of minority cultures wasnecessary was not predicated on a belief in the superiority of one culture over another. Instead,it was based on the notion that “unassimilated minorities would be unable to benefit from liberalrights and freedoms equally with members of the dominant culture.”22 For Lord Durham andother liberals, the welfare of the individual mattered more than the cultural survival of aminority group.Therefore, in traditional liberal thought, the formal equality ideal is based on the beliefthat freedom and equality are “incompatible with allocating rights differently on the basis ofethnic or racial membership, and that collective rights inevitably involve restricting individualrights.”23 Liberals also argue that formal equality represents an unambiguous standard ofequality which maximizes an individual’s ability to develop without any constraints of groupnorms and expectations.2421 Ajzenstat, “Liberalism and Assimilation: Lord Durham Reconsidered,” 9.22 Thid., 245.23 Kymlicka, “Recent Work in Citizenship Theory,” 33.24 Young, Justice and the Politics of Difference, 158.17Accordingly, traditional liberal thought views cultural membership as an individualchoice whereby members of a cultural community are responsible for promoting their culturewithin the cultural market place. For example, Mill believed that as sentient moral beings,humans should not imitate their forbearers’ norms and traditions, but profoundly reflect upontheir meaning and accept or reject them. In On Liberty, Mill epitomizes the enlightenment idealof rational human beings by stressing the individual’s faculty to interpret traditions and customsin her own way. He concludes that,“Although customs may be both good and suitable, to defer to customs does not educateor develop the individual in any of the qualities which are distinctive endowments of a humanbeing. The human faculties of perception, judgement, mental act, and moral preference areexercised oniy in making a choice.”25As Lustgarten evocatively writes, “Mill cherished individuality both intrinsically andinstrumentally as a means of fostering moral and technological progress; and he despised actionsbased upon inherited custom.”26Although twentieth century liberal thought supports pluralism as a positive force insociety and as a check on “state absolutism”, it is wary of voluntary ethnocultural associationsthat seek partial or preferential treatment by the state. As Glazer explains, “the state sets beforeitself the model that group membership is purely private, a shifting matter of personal choice25 Mill, John Stuart, On Liberty (New York: Norton, 1975), 123.26 Lustgarten, L.S. “Liberty in a Culturally Plural Society,” Of Liberty (Cambridge: CambridgeUniversity Press, 1983), 102.18and degree.”27 According to Glazer, the liberal state should neither oppose the liberty ofindividuals to express their cultural attachments, nor should it nurture such expressions; itshould respond with “benign neutrality”.28Since ethnicity is a private matter, liberals oppose theuse of ethnic criteria in the distribution of rights and resources and oppose any speciallegislation or explicit government recognition of groups.29For example, Trudeau’s defense of the 1969 White Paper on Indian Affairs, which wouldhave removed any differential citizenship for status Indians, was based on these liberalassumptions. Trudeau viewed cultural preservation as the responsibility of the individualmembers of the cultural community. He believed that the state should not be enlisted to prolongthe survival of separate identities and sub-cultures. Similar to Trudeau, Rockefellar argues thatliberalism and liberal democracy inevitably conificts with “any rigid idea of, or absolute rightto cultural survival.”30The myth 2Lflneutra1 state jujiberal thoughtFor civil libertarians and some contemporary liberal theorists, in order to maximizeindividual autonomy, the state must demonstrate a substantial degree of neutrality. According27 Glazer, Nathan, “Individual Rights Against Group Rights,” in E, Kamenka, A. Tay, eds.,Human Rights (London: Edward Arnold, 1978), 98.28 Ibid.29 Ajzenstat, Janet, “Liberalism and Assimilation: Lord Durham Reconsidered,” 251.Rockefellar cited in Gutman, Multiculturalism and the Politics of Recognition, 91.19to Raz in his essay, “Neutral Political Concern”, there are two factors underpinning stateneutrality. First, the state must be neutral concerning each person’s chances of implementing hisideal. Second, the state should be neutral concerning the likelihood that a person will adopt oneconception of the good rather than another.31 Dworkin maintains that liberalism takes as itsconstitutive political morality that in order for a government to treat its citizens as free, or asindividuals, or with equal dignity it must be neutral on the question of the good life.32 Dworkindescribes the non-liberal or conservative conception of equality as the view that governmentcannot be neutral because “a government cannot treat citizens as equal human beings withouta theory of what human beings ought to be.”33 As Morton contends, “minority rights are aspectsof pre-liberal society in which the health of the soul is a public concern and government activitypromotes some choices about the good life.”34 Communitarians and advocates of the politics ofdifference argue that the liberal state is by no means neutral. The following paragraphs firstindicate that the liberal state creates a tolerant structure for dialogue, but also espouses a certainconception of the common good, and therefore cannot be wholly neutral. Second, we willdemonstrate the biased nature of the liberal state by examining liberalism in Canada.31 Raz, Joseph, “Neutral Political Concern,” in Morality of Freedom (Oxford: Clarendon Press,1986), 111.32 Dworkin, Ronald, “Liberalism,” in Stuart Hampshire ed., Public and Private Morality(Cambridge: Cambridge University Press, 1978), 127.Ibid.Morton cited in Kymlicka, Liberalism, Community and Culture, 191.201. The liberal state as a tolerant structure for dialogueAccording to Geilner, liberalism creates a structure which promotes dialogue based onliberal epistemological and sociological traditions. First, the liberal epistemological traditionworks to create cumulative bodies of knowledge and shared definitions of phenomena.35 Theliberal search for truth aims to eliminate all self-maintaining, circular belief systems and seeksto destroy all unsystematic or idiosyncratic explanations of reality. As Geliner states,“inconvertible currencies are not suitable for trade and ungeneralizable explanations are uselessfor a practical and cumulative body of knowledge.”36Second, the liberal sociological approachpostulates that different cultures can communicate, and that all of them share the same worldin which they compete. Geilner describes this intra-cultural communication in Oakeshottianterms, not as the uttering of truth but rather as a flow of sympathy. In other words, a civildialogue can take place.Both Gellner and Rockefellar agree that the liberal democratic state is not neutral withregard to the promotion of a certain conception of the good. Rockefeller believes that liberalismhas its own value system, and echoes Dewey’s assertion that “liberalism is the expression of adistinct moral faith and way of life.”37Geilner, Ernest, Relativism and the Social Sciences (Cambridge: Cambridge University Press,1985), 93.36Rockefellar cited in Gutman, Multiculturalism and the Politics of Recognition, 90.21It appears normal that the dominant cultural group will create a constitution and statewhich reflect its conception of the good. This is the norm in nation states in the world andwould be considered normal in terms of Herderian notions of community. Obviously,constitutions and the laws of the state reflect the democratic preferences of the majority. Thusmany liberals concede that procedural liberalism promotes a certain conception of the good lifeby creating a context of choice. However, they argue that the extension of minority or grouprights could create a more restrictive context of choice.2. Liberalism and the promotion of a certain conception of the good life in CanadaFor example, the Canadian state demonstrates a substantial degree of neutrality but isnot neutral on conceptions of the good life. As a liberal democratic society the contemporaryCanadian state exhibits the liberal bias in favour of individual rights, and the liberal conceptionof the good life. In Canada, as in all democracies, there is a majority bias in public policy atthe expense of minority social and cultural groups. Furthermore, the two founding nations inCanada, protestant English and catholic French have a privileged position in the Canadianconstitution. Québécois and aboriginal nationalists as well as other social and cultural groupsargue that the supremacy of individual rights embodied in the Charter represents a bias by thestate against those “who value remaining true to the culture of their ancestors and those whomight want to cut loose in the name of some individual goal of self-development.”38 Turpel38 Taylor, Charles, “Shared and Divergent Values,” in Reconciling the Solitudes (Montreal:McGill-Queens University Press, 1989), 175-76.22argues that “the Charter and conceptions of rights can be situated culturally, they are no meansuniversal or progressive especially in so far as they affect aboriginal peoples.”39 Turpel alsobelieves that the preamble to the 1982 Constitution Act which states, “Canada is founded uponprinciples that recognize the supremacy of God and the rules of law”, is also a portrayal of theliberal, WASP conception of the good.4°Gays and lesbians complain that through social andfiscal policy the Canadian state sets its preferences for certain forms of social activity.Ethnocultural groups complain that the Charter,“perpetuates the established ethnic hierarchy by limiting protections for ethnic minoritiesto the area of individual rights, while clearly spelling out protections for the collective language,religious and educational rights of Canada’s entrenched ethnic majority, the English protestantand the French Catholic charter groups.”4’According to Kallen, the Charter fails to recognize and protect equally the collectiverights of all Canadian ethnocultural collectivities. It is important to note that this is not a biasof liberalism but a deviation from it. The paradox within the Canadian polity, is that the Charterprovides both liberal individual rights and collective rights of aboriginals according to section25 and 35. The BNA Act for its part provides collective rights for English protestants andcatholic French. The AFN contests the individual rights of the Charter while ethnoculturalgroups argue that liberalism in Canada is distorted to favour the two founding nations.Turpel, Mary, “Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies,Cultural Differences,” Human Rights Year Book (1990), 26.Ibid.Kallen, Evelyn, “Ethnicity and Collective Rights,” Leo Driedger ed., Ethnic Canada (Toronto:Copp Clark Pitman Ltd., 1987), 335.23We will develop our analysis of the divergent conceptions of citizenship in Canada inPart II of our thesis. We will now examine the arguments employed by communitarians andcultural pluralists in favour of the recognition of collectivities by the endorsement of differentialrights for minorities.24Chapter 2: Cultural relativism and group rightsThe communitarian critique of liberal orthodoxy offered by Taylor sets out that thetraditional liberal democratic position underestimates the need for people who are members ofcultural groups for public recognition and positive affirmation of their cultural identities. Taylorin particular emphasizes the importance of language to communities. As we noted in ourpreface, not all communitarians are concerned with difference because the acceptance oraffirmation of difference can work against the project of community as defined by somethinkers. The strand of communitarian thought that is relevant to our discussion of culturalgroup rights is best exemplified by the work of Taylor. Taylor’s account of cultural membershipis based on the premise that individuals capacity for choice can only be developed andemployed in a conducive cultural context and that the measures needed to sustain this contextare incompatible with liberal beliefs about individual rights and the neutrality of the state.42 Inorder to correct the bias inherent to a liberal state, Taylor and Young argue that nationalminorities, and historically oppressed social and cultural groups should be given group rightsand or institutionalized position in the policy-making process. In addition, several culturalpluralist thinkers, including Lustgarten and Van Dyke, share the view that the expression ofindividual rights is inherently linked to the affirmation of various collective interests, whichcannot survive un-protected in liberal democratic societies. The following paragraphs will firstoutline Berlin’s conception of positive liberty. Although Berlin is critical of positive liberty, his42 Taylor as presented in Kymlicka, Liberalism, Community and Culture, 2.25description of the concept helps explain the desire for recognition by minority cultural groups.Second we will analyze the emphasis placed by cultural pluralists on group rights as well as theproblems posed by cultural relativism in a society where the development of plural rights mayresult in conflicting jurisdictions and a state of anarchy. Finally, we will review culturalrelativism and the resulting stalemate for multicultural liberal democratic societies.Positive liberty, recognition jmodern identityBerlin defines his conceptions of negative and positive liberty in his essay, “TwoConcepts of Liberty”. Negative liberty is described as “the area within which the subject - aperson or group of persons - is or should be left to do or be what he is able to do or be withoutinterference by other persons.”43 In contrast, positive liberty is defined as, “what or who, is thesource of control or interference that can determine someone to do or be, this rather than that.”44Positive liberty is at the heart of the awakening of modern group identity in liberal democraciesthat seeks group rights in order to positively affirm the group. For Berlin, positive libertyderives from the wish of self-mastery, the elimination of obstacles, be they irrational institutionsor the opposing wills or behaviours of others.45 The notion of freedom in its positive sense isat the heart of the demands for recognition.46 Berlin argues that, “social, political, economicBerlin, Four Essays on Liberty, 121.Ibid., 122.Ibid., 146.46 Ibid., 169.26groups represent collectivities of people with conscious needs and purposes... and seekrecognition as, “... sources of human activity, as entities with wills of their own, not to be ruled,educated guided, with however light a hand. Although Berlin is opposed to positive liberty,he argues that the desire for status is also linked to solidarity, mutual understanding andassociation. He states that “to be governed, even mis-governed by members of my own groupmay be preferable than being influenced by a group which does not understand me”48. As weshall see in Part II of this thesis, Berlin’s description of the yearning for positive liberty appliesto our discussion of recognition pressures in Canada due to the profound misunderstandingsbetween ROC and Quebec, ROC and aboriginals and Quebec and aboriginals.B. GrouD rights. cultural pluralism jijthpotentia1_jLanarchyAdvocates of differential citizenship and some radical cultural pluralists argue thatgroups do not require sovereignty in order to achieve recognition. The state can recognize orpositively affirm minority cultural groups by permitting differential moral spheres for differentcultural groups. For example, Lustgarten asserts that “ethnic minorities should be permittedunrestricted freedom to follow their own customs and religious practices, be governed by theirpersonal law, and receive education in their language and cultural tradition.”49 Lustgartenattaches only two qualifications to this unrestricted freedom: first, a practice may be outlawedIbid., 156.48 Ibid., 157.Lustgarten, “Liberty in a Culturally Plural Society,” 101.27if it results in severe physical abuse, and second if its implementation appears to be whollyimpracticable.Van Dyke shares Lustgarten’s belief that a sophisticated view of liberty requires theacceptance of cultural pluralism. He asserts that,“It is clear that ethnic communities and peoples may have collective interests. I think itis clear that individuals have interests that can best be promoted and protected by granting aright to the community or to put it conversely, that some interests of individuals cannot beeffectively served unless a right is conceded to the group to which the individual belongs.”50Lustgarten argues that the state is not neutral because the educational system and thelaws of the land naturally reflect the bias of the dominant culture. Although Lustgarten assertsthat his defense of cultural pluralism is not meant to enforce difference among people ofdifferent cultures, this is the natural consequence of his project. Therefore, the postmodernistemphasis on relativism and the equality of ideas comes into obvious conflict with the modernliberal democratic goal of forging a common ground for citizenship. Furthermore, thephilosophical underpinnings of modernity, the enlightenment principles of civic duties and thebalance of democracy and toleration are seen by post-modernists as a violation of theirprinciples of relativistic equalityCultural pluralists, however, fail to respond to the question, “what is the source of unityVan Dyke, Vernon, Human Rights, Ethnicity and Discrimination (London: Greenwood Press,1985), 16.51 Pangle, Thomas, The Ennobling of Democracy (Baltimore: John Hopkins University Press,1992), 213.28in a society which recognizes differentiated citizenship?”52If Lustgarten’s radical definition ofliberty were to be implemented, it would lead to a fragmented society, and dissolve peoples’sentiment that they belong to the same political and moral community. Even the left agrees thatradical cultural pluralism would undermine civil society. Mouffe argues that, “an extreme formof pluralism, where all interests, opinions, and differences, are seen as legitimate could neverprovide the framework for a political regime.”53The plurality of norms and laws that would result in a radical culturally plural societywould destroy any bonds of commonality. For example, according to Lustgarten, polygamyshould be permitted for islamic minorities in Britain. This would result in the interaction ofcitizens in different, potentially conflicting legal spheres. In Lustgarten’s society, would amoslem man in such a situation be allowed to have a non-moslem as one of his wives? Whatabout gender equality? Therefore, it seems that the Herderian notion that humans should livein “natural cultural communities” would lead to anarchy in modern multicultural liberaldemocratic societies.£Cultural incommensurability njidentity absolutismThe politics of difference debate is often phrased in terms of Herderian populism. Berlindescribes Herder’s populism as, “the belief not merely in the multiplicity, but in the52 Kymlicka, “Recent Work in Citizenship Theory,” 32.Mouffe, Dimensions of Radical Democracy: Pluralism, Citizenship and Community, 13.29incommensurability of the values of different cultures and societies’. Berlin argues that Herder’sposition was revolutionary because it rejected the supremacy of certain values over others.54Herder considered each value as an incommensurable absolute, a premise which in fact deniedthe viability of culturally plural societies.If we follow the logic of Herderian populism and cultural absolutism for which theflourishing of a certain way of life is a priority, we could argue that those who kept Canadaclosed to non-Europeans and non-Christian immigrants for so long acted ethically.55Furthermore, in the Canadian context, one could argue that the state should actively promotefull assimilation in order to protect the dominant culture and that Canadians of British heritageshould have used their majority position to promote strict Anglo-conformity. In this repressivesetting, multiculturalism would be unthinkable and as mentioned, immigration from non-caucasian countries would be prohibited. This ironic outgrowth of cultural incommensurabilityis understated by advocates of a politics of difference.Radical cultural pluralism can clearly undermine the foundations of liberal democraticsoceity. Although a Straussian thinker, Pangle has developed theoretical arguments which canbe used to defend a liberal conception of the good life. Pangle does not believe in theincommensurability and cultural relativism theory, intrinsic in the arguments of the politics ofBerlin, Isaiah, Vico and Herder: Two Studies in the History of Political Ideas (London:Hogarth, 1976 ), 207.Howard, Rhoda, “Cultural Absolutism and the Nostalgia For Community,” in Human RightsQuarterly (Vol.15, John Hopkins University Press), 325,30difference. He writes,“what threatens us is not the excesses of passionate diversity but rather the deadeningconformism to a bloodless and philistine relativism that saps the will and the capacity to defendor define any principled basis for life.”56Beyond the dangers of anarchy, Pangle perceives the emergence of a relativistdogmatism, described as “the post-modern prejudice”. According to Pangle, Herder’s andLustgarten’s thought is premised on,“the easygoing belief that all ways of life and all points of view are equal; thence to theon that none is really worthy of, or in need of profound examination and passionate defense;and finally into the stridently moralistic belief that those who do insist on arguing for thesuperiority of their way of life or beliefs are elitist anti-democratic, and hence immoral.”57Pangle’s thought can be used to defend a liberal conception of the good life which setsout that the liberal state provides the environment for a real democratic dialogue. Democracyrequires an open dialogue. A chief virtue of democratic societies is that they are generallytolerant of unpopular ideas, even those which undermine the democratic foundations themselves.We have reviewed the liberal assertion of citizenship as a defense of formal equality in orderto protect individual rights. We have also examined the critique of liberal equality as beinginsensitive to cultural membership, and have established that the liberal state is not neutral.Since many citizens in Canada attach utmost importance to their group identity, we must strivefor a compromise or reconciliation of cultural membership with the liberal tradition. Kymlickahas attempted to demonstrate that cultural membership has a more significant status in liberal56 Pangle, The Ennobling of Democracy, 215.Ibid., 216.31thought than is explicitly recognized, and in the following Chapter we will examine hisambitious attempt to reconcile cultural membership with the liberal tradition.32Chapter 3: The attempt by Kymlicka to reconcile cultural membership with liberal theoryOur preceding discussion in Chapters 1 and 2 revealed that a reconciliation of grouprights and cultural membership with liberal individual rights appears unlikely, even impossibleon logical grounds. However, Kymlicka asserts that contemporary liberal theory can bereinterpreted to take into account communitarian elements in the formation of individualautonomy.58The unwillingness to grant collective rights in contemporary liberal thought is based ontheir perceived threat to individual autonomy. Collective rights can threaten individual autonomybecause members of minority groups may prefer to assimilate rather than be granted specialstatus, in order to avoid any form of stigmatization or psychological re-segregation.59 In thefollowing paragraphs, we will initially analyze Kymlicka’s attempt to reconcile individual andgroup rights within the framework of contemporary liberal thought. We will then examine theweaknesses in Kymlicka’s reinterpretation.LKvmlicka ‘S interpretation 2Lftcontemuorarv liberal position jLindividua1 rightsBased on Kymlicka’s interpretation, the following paragraphs outline the role of cultural58 Kymlicka, “Recent Work in Citizenship Theory,” 33.Kymlicka, Will, “Liberal Individualism and Liberal Neutrality,” Ethics (Vol. 1, 1989), 899.Kymlicka, “Liberalism, Individualism and Minority Rights,” 183.33membership in underpinning individual rights and strengthening an individual’s sense of self-respect.1. The Rawisian conception of formal equalityIn contemporary liberal thought, the basis of liberal conceptions of formal equality isfound in Rawls’ Theory of Justice. According to Rawis’ original position, behind the veil ofignorance, it would be rational for individuals to support a principle of formal equality beforethe laws of the state.6° Individuals are viewed by Rawis as “self originating sources of validclaims”: every individual has equal moral worth and deserves equal treatment, and communitieshave no moral existence or claims of their own. Therefore, as long as individuals are treatedequally, it is not necessary for communities to be treated equally.6’In response, Kymlicka argues that it would also be rational for individuals in the originalposition to recognize that loss of culture would cause loss of self-identity, and would thereforebe detrimental to personal agency.62 On the surface, Kymlicka’s assertion seems congruous withthe strand of communitarian thought associated with Taylor, and other communitarian thinkers.For example, in his essay, “The Procedural Republic and the Unencumbered Self”, Sandelmaintains that liberal concepts of justice misinterpret the relationship between the self and itsRawls, John, A Theory of Justice (Oxford: Oxford University Press, 1971), 14.61 Ibid.62 Kymlicka, “Liberalism, Individualism, and Minority Rights,” 189.34social roles and relations. His communitarian critique of Rawlsian liberalism sets out that theliberal conception of justice depends on a concept of self that is unencumbered by social andcultural attachments, whose freedom is exercised by abstracting it from its social and culturalsituation. For Sandel, individuals move in a history they neither summon nor command, whichnonetheless carries consequences for their choices and conduct, and therefore that liberalsexaggerate the capacity for, and the value of, individual choice.63 Other critics of Rawls arguethat Rawls fails to base his theory on neutrality since the primary goods serve to advance manydifferent individual plans, but they are less useful in implementing views that hold a good lifeto be achieved only in certain social structures.Kymlicka, although ultimately critical of the conimunitarian discourse, argues thatelements of the communitarian critique of liberalism can be reconciled within the liberaltradition. According to Kymlicka, in order to defend minority rights within liberalism, twofactors must be demonstrated:“Firstly, that cultural membership has a more important status in liberal thought than isexplicitly recognized and secondly, that members of minority cultural communities may faceparticular kinds of disadvantages with respect to the good of cultural membership -disadvantages whose rectification requires and justifies the provision of minority rights”64Second, Kymlicka attempts to demonstrate that traditional liberal thought significantlyrelies on cultural membership by considering social conditions as a determinant of what is63 Sandel, Michael, “The Procedural Republic and the Unencumbered Self,” Political Theory(Vol. 12, February 1984), 90.Kymlicka, Liberalism, Community and Culture, 1.64 Kymlicka, “Liberalism, Individualism and Minority Rights,” 188.35valuable in life.65 Kymlicka’s qualitative arguments are entrenched in a renewed perspective ofthe Kantian ideal of respect for persons.2. Cultural membership as a key element in the Kantian conception of respectIn A Theory of Justice, Rawls argues that the most important primary good is that ofself-respect. Rawls’ Kantian ideal of respect has two components: first, it includes a sense ofone’s value, one’s conviction that one’s conception of the good, or plan of life is worth carryingout; and second, it infers a confidence that so far as in one’s powers one can fulfil one’s goals.66Rawls argues that without self-respect, “all desire and activity become empty and vain and wesink into apathy and cynicism, therefore the parties in the original position would wish to avoidat almost any cost the social conditions that undermine self-respect.” 67Kymlicka attempts to draw upon Rawls’s concept of self-respect as a means to integrategroup rights into liberalism. He agrees with Rawls’s assertions that there are certain goods,resulting from social cooperation such as income, and wealth, opportunities and powers. Theseliberties and rights are necessary for the pursuit of the good life.68 Rawls argues that in a justsociety, self-respect is achieved by our uniform citizenship and hence our recognition as equal65 Ibid., 189.66 Rawls, A Theory of Justice, 440.67 Thid.68 Ibid., 92-95.36citizens.69 Kymlicka, however, makes the provocative assertion that the community is not, ascommunitarians seem to think, a concept which is alien to Rawis’ primary goods. Instead, heargues that cultural membership should be accorded the status of a primary good.7°Accordingto Kymlicka, the sense that one’s life plan is worth carrying out is determined by one’s culture,and individuals may require a cultural structure to make sense of their lives.7’ Kymlicka writes,“liberals should be concerned with the fate of cultural structures not because they havesome moral status of their own but because it’s only through having a rich and secure culturalstructure that people can become aware of the options available to them.” 72In contrast to Schwartz, Kymlicka argues that special rights are justified for aboriginalsin North America, because they have a legitimate claim to the protection of their culturalmembership, whether or not the lives of non-aboriginals are thereby improved or enriched.73Hemaintains that group rights can be equated with liberal acceptance of affirmative actionprograms.74 He argues that if liberals are concerned about whether inequality is the result ofconscious choices or unchosen circumstances, then they should also be concerned with theunchosen culture of an individual. In sum, Kymlicka believes that a person’s cultural heritageprovides a foundation of emotional security, personal strength and self-respect, and is an69 Ibid., 544-45.Danley John, “Liberalism, Aboriginal Rights and Cultural Minorities,” in Philosophy andPublic Affairs (Vol. 20, 1991), 169.,Kymlicka, “Liberalism, Individualism and Minority Rights,” 191.72 Ibid., 190.Ibid., 191.Kymlicka, Liberalism, Community and Culture, 190.37unchosen circumstance that may affect our very sense of agency.75 Drawing upon sociologicaland anthropological research, he asserts that language is not just a neutral medium but is valueladen and represents a marker of societal goals.76 In Kymlicka’s opinion, although it may bepossible for people to voluntarily give up their cultural identification, liberal society should notimpose its conception of the good and should not expect individuals to relinquish their culturalassociations. Kymlicka argues that the importance of cultural heritage to individual agency hasnot only been recognized by sociologists but also by racist and oppressive regimes around theworld, who have tried to destroy and degrade the cultural heritage of the people they oppressin order to undermine their sense of personal efficacy.77Kymlicka argues that Rawls and Dworkin do not recognize culture as a primary goodbecause they “work with a very simplified model of the nation state, where the politicalcommunity is co-terminus with one and only one cultural community.”78Kymlicka argues thatit is false to assume that the white settler colonies of Canada and the United States representhomogenous cultural communities. He argues that if we drop that assumption, then culturalmembership, as a source of possible injustice and inequality should become a primary good.79Kymlicka, “Liberalism, Individualism, and Minority Rights,” 193.76 Ibid.Ibid.78 Kymlicka, Liberalism, Community and Culture, 178.Ibid.38Weaknesses jKvmlicka’s attemoted reconciliationHowever, in his attempt to reconcile the liberal conception of individual rights withenhanced cultural rights, Kymlicka fails to satisfy either communitarians or liberals. This failurewhich we will initially examine, is indicative of several weaknesses in Kymlicka’s arguments.Secondly, we will examine how Kymlicka’s interpretation of liberalism, appears to be highlyselective and would be rejected by several classic liberal thinkers. Thirdly, we will set forth thatby considering culture as a circumstance, Kymlicka suggests a situation where an individual hasno choice to identify himself or not to his given cultural community. Finally, we will suggestthat by arguing that culture is a circumstance, Kymlicka fails to differentiate between the claimsof different cultural groups and neglects to consider involuntary membership in social groups.1. The failure to satisfy both communitarian and liberal thinkersIn an effort to deflect the criticism that group rights provisions may lead to a denial ofchoice for individuals in the group, Kymlicka defends minority rights that “serve to protect thecultural community as a context of individual choice”. He does not believe that culturalstructures should deny choice; he criticizes, as a result, the Pueblo nation for restricting religiousfreedom.8°However, in attempting to salvage his argument, he contradicts his apparent goal aswell as the goal of leaders of national minorities, such as North American aboriginals.MacDonald describes Kymlicka’s attempted reconciliation as a “welfare liberal defense of80 Kymlicka, “Liberalism, Individualism, and Minority Rights,” 203-204.39collective rights”.8’ The limits to Kymlicka’s argument are that liberals will only extendcollective rights for those cultures that support the formation of autonomous individuals.82Native peoples whose personal identity is historically rooted in a collective-oriented non-individual rights framework would be ineligible for group rights according to Kymlicka’sassumptions.Taylor also criticises Kymlicka’s attempted reconciliation and especially his comparisonof group rights provisions with affirmative action programs.83 Taylor argues that in the politicsof recognition debate, cultural groups are not seeking an equal playing field. He does notbelieve that the affirmative action analogy is effective for cultural groups, for the goal is “notto bring us to a difference-blind social space but, on the contrary to maintain and cherishdistinctiveness not just now but forever.”84 Taylor argues that although Kymlicka tries to arguein favour of a politics of difference within a theory of liberal neutrality, he fails to capture theactual demands made by cultural groups with respect to their goals of survival.85Kynilicka’s attempted reconciliation therefore does not go far enough to satisfycommunitarians. Conversely, Kymlicka’s reconciliation cannot satisfy liberals. First, in the81 MacDonald, Michael, “Should Communities Have Rights?,” in The Canadian Journal of Lawand Jurisprudence (University of Western Ontario, Vol. I, # 2, July 1991), 235.82 Ibid.83 Taylor in Gutman, ed. Multiculturalism and the Politics of Recognition, 40.84 Ibid.85 Ibid., 40-41.40original position, a rational individual may want to have culture but may not want a pluralityof cultures. Second, a rational individual, behind the veil of ignorance, would not choose grouprights as a principle of justice because such an individual could envision membership in acollectivity which was too restrictive of individual freedom. Liberals also argue that group rightsand representation will undermine Rawis’ conception of personal autonomy and self-respectbecause individual members of a group may not want to be judged by their cultural identity,skin colour, speech or dress.As Glazer argues, “if we begin to attach rights or members of parliament to ascriptivecommunities, this will hurt members of these communities who want to integrate or assimilatein the mainstream culture.”86 Finally, liberals would also oppose Kymlicka’s affirmative actionanalogy in support of minority rights for the opposite reason of the communitarians. Liberalsare willing to accept temporary measures on the road to a difference blind society but will notaccept permanent differential citizenship for different segments of the population.2. Kymlicka’s selective reference to liberal thinkersA second weakness in Kymlicka’s argument is his attempt to draw upon the writings ofpre-Worid War Two liberals, Green, and Hobhouse. He argues that these thinkers recognizedthat, “human freedom was tied to the existence and consciousness of a common cultural86 Glazer, “Individual Rights Against Group Rights,” 98.41membership.”87 He writes that Hobhouse argued that ‘equality of franchise may have to bemodified where cultural minorities exist”88 Kymlicka’s reference to liberal thinkers appears tobe highly selective since he ignores other significant liberal orthodox thinkers including LordDurham, who would be opposed to Kymlicka’s views regarding the treatment of minorities.One could argue that in order for Kymlicka to make his point he only needs todemonstrate that in the history of liberalism there were liberals who recognized the importanceof cultural membership. However, Kymlicka’s substantial discussion of minority rights and theliberal tradition in Liberalism Community and Culture, does not provide sufficient proof thatany liberal would have risked individual liberty or autonomy for the sake of a culturalcollectivity.3. Kymlicka’s belief that culture is a circumstance rather than a choiceKymlicka’s arguments are further weakened by the belief that one’s culture is to beconsidered a circumstance, a premise which implies that it would be necessary to compensatefor all cultural minorities.89Many liberal thinkers argue that there is no need for the individualto accept or perpetuate a set of cultural values and traditions just because one’s parents or87 Kymlicka, “Liberalism, Individualism and Minority Rights,” 202.88 Ibid.and also Kymlicka, Liberalism, Community and Culture, 210.Danley, “Liberalism, Aboriginal Rights and Cultural Minorities,” 175.42community does so.9°Ultimately, culture should be considered as something that a person musttake responsibility for, as opposed to a genetic handicap.91Tushnet argues that an individual can be a member of a group by history, opposition orchoice. By opposition he refers to the fact that an individual may be a member of a group notby choice but because other people define him as such.92 He goes on to argue that becausediscrimination is inherently group-based, when the state prohibits discrimination, it acts to grantde facto group rights.93Tushnet’s argument however, neglects the fact that in Canada, the Charter rights andstate-sponsored campaigns to eliminate discrimination are meant to protect individual rights, notgroup rights per se. However, being a member of a group by opposition is a particularlydifficult issue for liberal thought to reconcile, for although the belief that culture is not acircumstance but a choice has some cogency, the fact remains that an individual who choosesto give up his cultural association may still continue to suffer from negative perceptions of hisor her community by the dominant society, especially if that individual is a member of a visibleJacobs, Leslie, “Bridging the Gap Between Individual and Collective Rights With the Ideaof Integrity,” in Canadian Journal of Law and Jurisprudence (University of Western Ontario,Vol. I, #2, July 1991), 383.Lenihan, Don, “Liberalism and the Problem of Cultural Membership,” in Canadian Journal ofLaw and Jurisprudence (University of Western Ontario, Vol. I, #2, July 1991), 407.91 Danley, “Liberalism, Aboriginal Rights and Cultural Minorities,” 175.92 Tushnet, M., “Law and Group Rights: Federalism as a Model,” in Canadian Journal of Lawand Jurisprudence (University of Western Ontario, Vol. IV, #2, July 1991), 281.Ibid., 284.43minority. For example, many Métis people, prior to their constitutional recognition in 1982,attempted to assimilate into mainstream Canadian society but were the victims of systematicdiscrimination as “Indians”.Drawing upon the work of Shklar, Jackson argues that liberals would want to preventsituations in which an individual felt obliged to pass for something other than what he or shereally was in order to avoid social ridicule and contempt.94 In Canada, although section 15 ofthe Charter prevents discrimination on the basis of association some argue that negative libertyis insufficient for the goals of providing social dignity. According to Jackson,“(section 15) can ensure that one’s freedom to associate will not be obstructed by anyother agent but it cannot ensure that individual’s who choose to associate in ethnic or otherparticular ways will be accorded dignity by the public at large. Negative liberty, other thingsbeing equal is more likely to produce assimilation, for the only way that individuals can acquiredignity in such a climate is to conform to the dominant choice.”95Jackson concludes that if the liberal state is dedicated to personal autonomy ofindividuals belonging to ethnocultural groups, it must do more than tolerate social diversity: itmust take positive measures to support it.96 In the Canadian context, the state provides positiveaffirmation of the plurality of immigrant cultural groups in Canada through the policies ofmulticulturalism but has been unwilling to grant substantial group rights or distinct societyprovisions for either aboriginals or the Québécois. Kymlicka argues that,Jackson, Jennifer, Should the Liberal State Help its Citizens Maintain Their VoluntaryEthnocultural Identities, and Using What Measures? (UBC: M.A. Thesis, 1992), 27.Ibid., 6.96 Ibid., 18.44“a government that gives special rights to members of a distinct cultural community maystill be treating them as individuals; the provision of such rights just reflects a different viewabout how to treat them as individuals and as equals.”97This assertion, however, neglects the particular situation of an individual in Quebec whocannot chose to study in the language of her choice, or the potential for human rights abuseson self-governing aboriginal communities.4. Kymlicka’s failure to differentiate between the claims of different groupsA final weakness with Kymlicka’s arguments is that he fails to differentiate between theclaims of different cultural groups and ignores involuntary membership in social groups. In hisarticle “Liberalism, Aboriginal Rights and Cultural Minorities”, Danley criticizes Kymlicka’sarguments for failing to differentiate between the important moral differences existing amongnational minorities and other immigrant minorities.98Danley points out that national minoritiesincluding the Québécois or the aboriginal nations have characteristics which set them apart fromimmigrant minority groups in Canada.Danley argues that immigrants arriving in Canada did not sign treaties as a member ofa sovereign collectivity. Instead, they entered into a contract with the Canadian government asKymlicka, Liberalism, Community and Culture, 213.98 Danley, “Liberalism, Aboriginal Rights and Cultural Minorities,” 169.45individuals.99Therefore, public subsidization of cultural activities in Canada should be a matterof policy, not right.100 On the other hand national minorities, such as the Québécois oraboriginals in Canada have legitimate claims to the rights of self-determining peoples.Kymlicka also ignores the question of whether or not social groups should receive grouprights. Susan 0km would criticize Kymlicka for failing to mention gender as an additionalgroup whose members are placed at a disadvantage by no choice of their own. In the contextof feminist theory, 0km argues that gender, even more than culture, is a category that theindividual has no choice over. She writes, “like the hierarchy of caste, that of gender ascribesroles, responsibilities and rights and other social goods.”°’ Therefore, a liberal society must finda way to break down the economic structures and customs that perpetuate the patriarchalideology.102 Gay and lesbian groups are also citing an increasing body of scientific literaturewhich asserts that their sexual preference is not a matter of choice but of genetic predisposition.We will return to the issues of feminist and homosexual group rights in Chapter 6 when wediscuss non-territorial groups.Ibid., 185.Glazer, N. Ethnic Dilemmas (Cambridge: Harvard University Press, 1983), 227.Kymlicka, Will, “Liberalism, Ethnicity and the Law” (Toronto: University of Toronto Press,1988), 24.Kymlicka, “Liberalism and the Politicization of Ethnicity,” 250.101 0km, Susan “Justice and Gender” in Philosophy and Public Affairs (Vol. 17, #5, 1987), 56.102 Ibid.46PART II Reconciling Conceptions of Citizenship in CanadaAlthough Kymlicka fails to reconcile cultural membership within liberal theory, his workunderlines the importance of cultural membership for individuals. Kymlick&s attemptedreconciliation underscores the need for a debate attuned to the practical implications of thedemands for recognition made by communities in Canada. The majority of ROC believes thatliberal democratic society can provide an environment conducive to the maintenance of thegroup identities without conferring permanent group rights. However, because of the recognitionpressures threatening to divide the country we must examine whether or not Canada shouldgrant further differential citizenship for groups in Canadian society in order to avoid theseparation of Quebec, violent or civil disobedience in aboriginal communities or a decline inthe credibility of public institutions. We will now shift our focus from theoretical considerationsto the practical reality of the centrifugal forces in Canadian society. In Chapter 4 we will reviewthe impact of federalism on conceptions of Canadian citizenship and the difficulty in reconcilingthe aspirations of the province of Quebec to preserve its language and culture with ROC’scommitment to the equality of provinces and to the supremacy of individual rights. In Chapter5 we will examine the challenge of aboriginal self-government to conceptions of Canadiancitizenship, and will attempt to reconcile Indian citizenship with Canadian citizenship. Finallyin Chapter 6 we will critically examine the arguments employed to advocate differentialcitizenship for non-territorial groups in Canadian society.47Chapter 4: Federalism and Conceptions of Citizenship in CanadaFederalism is central in our discussion of diversity and uniformity in conceptions ofCanadian citizenship because it is the dominant strain of Canadian political culture. It acts todivide citizens’ loyalties between Canadian and provincial identities and has provided theconstitutional basis to bolster the French Canadian majority in Quebec. The profound effect offederalism has moved beyond the fostering of dual provinciallfederal identities towards anincreasingly complex debate centred on the establishment of non-territorial group rights.Advocates of differential citizenship for oppressed social and cultural groups argue thatfederalism, which provides group representation based on territory, should also grant grouprights and representation to non-territorial cultural or social groups.103 Advocates of aboriginalself-government believe that self-governing aboriginal communities should be given aninstitutional position within the federal structure.104 The aim of this chapter is not to examinethe primary questions related to federalism, such as whether or not it promotes a greater amountof freedom than unitary states and whether or not it embodies a set of values or goals.105 Theaim of this chapter is to discuss the impact of federalism on conceptions of Canadian103 Kymlicka, Will, “Group Representation in Canadian Politics,” in Leslie Seidle ed., Equityand Community: The Charter, Interest Advocacy and Representation (Montreal: [RPP, 1993),68.Macklem, Patrick, “First Nation Self-Government and the Borders of the Canadian LegalImagination,” McGill Law Journal (Vol. 36, #2, April 1991), 382.Neumann, Franz, “Federalism and Freedom: A Critique” in Arthur MacMahon, ed.,Federalism, Mature and Emergent (Garden City: Doubleday, 1955)48citizenship, and the degree of differentiation that the Canadian liberal democratic society canbear. We will question whether or not the federal spirit that has preserved the Canadian federalstate intact can provide the flexibility to further accept and affirm the deep sociologicaldifferences in Canadian society which are currently being exacerbated by aboriginal andQuebecois political elites.In this chapter we will initially review the nature of Canadian federalism and the impactof federalism on the Canadian identity: we will examine the impact of competitive loyalties toliberal democratic societies and review how Canadians citizens have accommodated themselvesto this reality. We will then analyze the roots of discontentment in Canadian federalism byretracing the creation and evolution of the federal state in Canada from a Quebecois perspective.Finally, we will examine the fundamental disputes in conceptions of Canada between ROC andQuebec: we will demonstrate that the crisis of Canadian federalism originates in the cleavagebetween procedural liberalism in ROC and the concern for community in Quebec.A.The nature of Canadian federalismThis section will first outline the relationship between the existence of separate ordersof government and multiple identities. Second, we will describe how the elements which haveensured the resiliency of Canadian federalism have also fostered cleavages which impede thedevelopment of a common conception of Canadian citizenship.491. Canadian federalism and the development of competing loyalties.Federalism can be defined as a constitutional division of powers between central andregional authorities which neither side can modify unilaterally. Smiley offers a more concisedefinition, describing federalism as “territorial pluralism.”o6Livingston stated that at its origin,“federalism is a function not of constitutions but of societies.”°7However, Cairns and Smileyhave demonstrated that the long-term resiliency of federalism is also a result of the apparatusand relative autonomy of governments.108 It is also clear that the federal government structurehas acted to establish societal organizations along federal lines. In Smiley’s words, “bothCanadian government and Canadian society are federalized in the sense that conflicts andidentities are demarcated by national and provincial 109The effect of federalism on citizenship is seen in the creation of two distinct loyaltiesfor citizens to maintain due to the existence of two separate orders of government. Thecoexistence of distinct loyalties in a federal state was valued by thinkers such as Lord Actonand Proudhon. They believed that competing loyalties within the framework of federalism act106 Smiley, Donald, The Federal Condition in Canada (Toronto: McGraw-Hill Ryerson Ltd.,1987), 5.107 Livingston W.S. Federalism and Constitutional Change (Oxford: Clarendon Press, 1950),4.Cairns, Alan, “The Governments and Societies of Canadian Federalism,” Canadian Journal ofPolitical Science (Vol. 10, 1977), 696.108 Cairns, Ibid., 699.Smiley, The Federal Condition in Canada, 6.109 Smiley, Ibid., 5.50to increase the freedom of choice of the individual and prevent the development of tyranny.’1°According to Vernon’s analysis, Proudhon favoured a polity in which the question of priorityof membership would remain permanently open. Proudhon advocated a set of systematicallycompetitive loyalties, of which neither province nor state would enjoy monopoly.11’Vernonargues that Proudhon’s belief in “agnosticism towards the community” as a means to enhanceself-determination, was an original contribution to political thought.112Vernon’s analysis applies to our discussion on Canadian citizenship because the questionof priority of membership remains open in Canada. Although federalism may divide loyaltiesat the abstract level, at the practical level, membership remains open. According to Ellcins’ andSimeon’s research, “(Canadian) citizens generally see no need to choose sides to renounce eithertheir federal or their provincial loyalties or identities.”3The fact that a person is born in aparticular province and receives a marriage licence and unemployment insurance from differentlevels of government holds little saliency for the majority of Canadians outside of Quebec. Allcitizens have multiple identities and in the hierarchy of identities, one’s religion, language,gender or ethnocultural association may be far more important than an individual’s association110 Vernon, Richard, “The Federal Citizen,” in R. Olling and M. Westmacott eds., Perspectiveson Canadian Federalism (Scarborough: Prentice-Hall, 1988), 11.,,Vernon, Richard, “Freedom and Corruption: Proudhon’s federal Principle,” Canadian Journalof Political Science (Vol. 14, 1981), 792.112 Vernon, “The Federal Citizen,” 10.113 Elkins, David, Simeon, Richard, et al. Small Worlds: Provinces and Parties in CanadianPolitical Life (Toronto: Menthuen, 1980), 308.51to province or even country. As LaSelva argues, Canadian federalism is a device that attemptsto accommodate ethnic and other particularities within the framework of a morally open2. Federalism and the exacerbation of regional cleavagesHowever, it has also been observed that all political systems have a specific bias infavour of the exploitation of some kinds of conflict and the suppression of others.115 As a resultof their organizational structure, federalist systems favour inter-governmental conflicts andcentre-periphery conflicts over class conflict. Canadian federalism has acted to reinforceregionalism and has encouraged a politics in which provincial particularisms are accordedspecial prominence.”6Federalism has led to the separation of provincial and federal partysystems and to different voting patterns in federal and provincial elections. In addition, indemocratic elections at both the provincial and federal level, governments attempt to deflect theblame for unpopular policies to the other level of government. Therefore, regional differencesaffect attitudes towards Canada. The bias towards regionalism inherent in federalism hasimportant implications for our discussion of citizenship. The nature of provincial jurisdictions114 LaSelva, Samuel, “Re-imagining Confederation: Moving Beyond the Trudeau-LevesqueDebate,” Canadian Journal of Political Science (Vol. XXVI: 4 , December 1993), 716.115 Schattschneider cited in Hueglin, Thomas, “Federalism in Comparative Perspective” inPerspectives on Canadian Federalism,” R.Olling, M. Westmacott eds. (Scarborough: PrenticeHall, 1988), 27.116 Cairns, “The Governments and Societies of Canadian Federalism,” 718.52and the determination of Quebec to follow a strict multi-national federal model have thwartedthe creation of a strong pan-Canadian identity which some argue is central for the creation ofa bond of loyalty to the political community.In Quebec, the francophone majority has always viewed federalism as a means toprovide the province with enough power to ensure the survival of its language and culture.Despite the fact that polling indicates that Quebec citizens are profoundly attached to bothQuebec and Canada, their aspirations to preserve their language and culture represent the mostsalient cleavage in Canadian federalism.”7This cleavage is the result of divergent conceptionsof federalism in ROC and Quebec. Many Canadians think that federalism provides a morenuanced representation of their interests and more opportunity to participate in the democraticprocess but express frustration with the ability of the provinces, especially Quebec, to preventthe articulation of a national will. The lack of common identity inherent to a federal polity hasled some Canadians to support greater centralization and others to support expanded decentralization. The differences that undermine the relationship between ROC and Quebec arethe divergent perceptions of federalism whereby Quebec defends dualism and ROC promotesthe recognition of provincial equality as the preeminent principle of federal justice.”8 Themajority of English Canadians see federalism as a mere administrative division which providesregional autonomy and responsive government. They are not willing to come to terms with the117 Maclean’s/Decima Poll (July 1994)Russell, Peter, ‘Can Canadians be a Sovereign People? ,“ Canadian Journal of PoliticalScience (Vol. 24, 1991), 70853Québécois nationalist sentiment that Canada is a multi-national federation more akin toSwitzerland than Australia.In order to understand the origin of these diverging conceptions of federalism, it isnecessary to examine the creation and evolution of federalism in Canada from a Québécoisperspective.,.The evolution &ilic.Canadian federal state from Quebec’s perspectiveThe decision to create a federal dominion in Canada had its genesis in the sociologicalreality of entrenched regional elites who aspired to retain a degree of autonomy. Almost acentury later, the Tremblay Commissioners interpreted the BNA Act as giving Quebec authorityover all matters related to its culture. The well-articulated view of federalism according toQuebec, expressed by the Tremblay Report severely contrasted with the Massey Commission’sgoal of forging a strong pan-Canadian cultural identity. The divergent conceptions of Canadiancitizenship underpinning these cleavages have recently appeared in the failure of the MeechLake and Charlottetown accords. This section will review these four historical landmarks, theBNA Act, the Tremblay Commission, the Massey Commission and the Meech Lake andCharlottetown Accords to outline the evolution of Canadian federalism and divergentconceptions of Canadian citizenship in ROC and Quebec.541. The BNA Act as a “pact of honour” between French and English speakingCanadiansIn 1867 it was agreed that the new Canadian dominion would be a federal state becausethe predominantly French-speaking and Catholic residents of Lower Canada and the Maritimeprovinces would have vehemently opposed any unitary regime type.119 According to Smiley andCareless, the BNA Act was a significant innovation with regards to the relationship betweencultural nationhood and political organization.’20 In Smiley’s opinion, “the fathers ofconfederation explicitly put aside both the assimilationist premises of the Act of Union and theconsociational devices which had developed as a response to English-French duality.”2’Smileyargues that the BNA Act created a series of provisions in the domain of language, religion andculture, including sections 92, 93 and 133, that represented the basis of a contract or in thewords of Henri Bourassa “a pact of honour” between French and English speaking Canadians.This notion of dualism became deeply ingrained in the mythology of Quebec history and hasalways been used by Quebec nationalists to argue that Quebec has been betrayed by EnglishCanada.In practice, the two-nation view of confederation was never fully achieved: after 1867,119 Brady, Alexander, “Quebec and Canadian Confederation,” Canadian Journal of Economicsand Political Science (August, 1959), 260.120 Smiley, Donald, “Reflections on Cultural Nationhood and Political Community in Canada,”in Ken Carty, Peter Ward, eds., Entering the Eighties: Canada in Crisis (Toronto: OxfordUniversity Press, 1980), 26.121 Ibid.55Canadians who were not of Anglo-Saxon heritage were not given an equal role in Canadianaffairs, and the federal government did not safeguard cultural, linguistic and religious dualityagainst English speaking and protestant provincial majorities.122 In contrast, in the post-confederation period, the English-speaking minority in Quebec had sufficient economic powerto protect its duality within the province of Quebec. Consequently, the BNA Act’s failure toinitiate an acceptable pact for both French and English speaking Canadians has entrencheddivergent perceptions of federalism in ROC and Quebec.Since 1867, successive governments in Quebec have always defended a strict dualisticfederal structure in Canada in the face of centralizing and homogenizing tendencies in Canada.According to Ryder, in the case of jurisdictional disputes Quebec has always used a classicalparadigm or a “watertight compartments” interpretation of Section 91 and 92 of the BNA Actin order to restrict federal intrusion.’23 Ever since Lord Durham’s Report, which set out that,“French speaking people would abandon their vain endeavour to preserve a French Canadiannation once they were under the vigorous rule of an English majority,” the French have fearedthat English Canada would use the federal government as an instrument of assimilation. TheTremblay Commission or the Quebec Royal Commission of Inquiry on Constitutional Problems122 Ibid., 28.Please see Coleman “Tremblay Commission and the Defense of French Canadian Culture,” TheIndependence movement in Quebec 1945-1980 (Toronto: University of Toronto Press, 1984),76. For a list of cases.123 Ryder, Bruce, “The Demise and Rise of the Classical Paradigm in Canadian Federalism:Promoting Autonomy For the Provinces and First Nations,” McGill Law Journal (Vol. 36, #2,April 1991), 308.56provides an insight into Quebec’s anxiety within federalism and describes Quebec’s vision ofitself as the guarantor of French civilization.’242. The Tremblay Report, as a framework for Québec’s view of cultural preservationand Canadian federalismThe section of the Tremblay Commission that is of most interest to our inquiry is partone on French Canadian culture. The philosophy expressed by the Report, described by Bradyas “catholic pluralism”, insists that cultural groups should be given the necessary freedom tosurvive, and that individuals should be given the freedom to develop their personalities in agroup.’25The report employs Herderian imagery in its description of French-Canadian culture. Itargues that the French-Canadian culture is innate in the spirit rather than a conscious choice.Culture is linked with ethnic homogeneity and embodies not only religion and language, butalso national genius.’26 According to the Report, cultural preservation constitutes the commongood of any nation, because to live in an environment commensurate with one’s cultural heritageis the prerequisite for the success of every person.’27 The Report expresses the view that theBNA Act gave the provinces jurisdiction over everything “that touched the human side most124 Coleman, “Tremblay Commission and the Defense of French Canadian Culture,” 65.125 Brady, “Quebec and Canadian Confederation,” 267.126 Kwavnick, David ed., The Tremblay Commission (Toronto: McClelland and Stewart Ltd.,1973), Chp. 1.127 Ibid., 210.57nearly and which most influenced the Canadian citizens’ manner of 128 Accordingly, thecommissioners viewed the BNA act as granting Quebec authority over all matters arising fromits historical, cultural and religious character, and jurisdiction over civil rights and aspects oflanguage. The Commissioners therefore concluded that Quebec was the, “accredited guardianof French-Canadian civilization.”29 In essence, the Tremblay Report articulated a vision ofQuebec’s place in Canadian federalism that would enable it to perpetuate the French Canadianculture.As a result, the Tremblay Commission Report argues that the federal government couldnot try to create a pan-Canadian community of citizens because it would go against the spiritof federalism and dualism and represent a threat to Quebec culture. The Tremblay Commissionwas critical of the recommendations of the Massey Commission on National Development inthe Arts, Letters and Sciences. These recommendations, which promoted the creation of nationalcultural institutions, including, the CBC the NFB and the Canada Council, were attacked byDuplessis and the Commission as, “unwarranted intrusions into areas of provincialjurisdiction.”30In Coleman’s words, “the (Massey Commission) report raised the prospect ofthe imposition of cultural institutions and practices from above by a government taking itsinspiration from a community whose values differed from those of French-Canadians.”3’This128 Thid., 45.129 Ibid.130 Coleman, “The Tremblay Commission and the Defense of French Canadian Culture,” 69.131 Thid.58view that the federal government was the agent of ROC is central in the writings of Groulx andthe Action Nationale. This opinion also reflects the Parti Quebecois’s core arguments for theseparation of Quebec and the contemporary Quebec Liberal party’s justification of expandedpowers for Quebec.3. The Massey Commission and the outline of a Canadian citizenship based on anational commitment to liberal valuesIn contrast, the Report of the Massey Commission characterized the optimism followingthe Second World War that a Canadian identity could be formed. The Anglo-Canadiancentralistlnationalist theses put forward by Creighton and others assumed that the task of centralgovernment was to create a Canadian people, influenced the policy recommendations of theMassey Report.’32 Trudeau also viewed the creation of a pan-Canadian identity as adevelopment congruent with the spirit of federalism. Trudeau’s Liberal governments’ attemptedto respond to the nascent nationalist movement in Quebec by forging a common Canadianidentity. The foundations of this identity were the equality of individuals and provinces and thepolicy instruments employed to achieve these goals were: bilingualism, multiculturalism and theCharter. The Liberal strategy had mixed results. Although ROC generally acceptsmulticulturalism and accepts the Charter and the equality of provinces, significant elements of132 Cairns, Alan, (Correspondence: May 30, 1994)See also Cairns, Alan, “The Judicial Committee and It’s Critics,” Canadian Journal of PoliticalScience (Vol. 4, 1971)Scott, F.R., Essays on the Constitution: Aspects of Canadian Law and Politics (Toronto:University of Toronto Press, 1977)59ROC reject bilingualism.’33Conversely, Quebec rejects multiculturalism, and the strict equalityof provinces, and Quebec nationalists reject the Canadian Charter as well as bilingualism forQuebec. The majority of Quebec francophones have remained firmly committed to the primacyof Quebec as their political community and have resisted federal attempts at forging a pan-Canadian national identity.’34The fundamental disagreement concerning dualism and/or provincial equality is centralin the misunderstanding between ROC and Quebec. French Canadians residing in Quebec viewCanada as a compact between two nations. On the other hand, English Canada, especiallywestern Canada has never felt dualism to be a day to day reality. With the increasingly diversedemographic make-up of ROC and the concomitant demise of anglo-conformity, one can nolonger describe English Canada as a nation as we can Quebec. As a result, ROC views theCharter and the procedural liberalism that it embodies as a common reference point in anincreasingly heterogenous society. Conversely, nationalist elements in Quebec believe that thepreservation of the French speaking Québdcois collectivity in North America is of paramountimportance.According to their vision of Canada as a pact between two nations, Quebec elites wantto renegotiate the agreement in order to provide the province with the means of preserving and33 Maclean’s/Decima PollMcRoberts, Kenneth, “Disagreeing on Fundamentals: English Canada and Quebec,” inKenneth McRoberts, Patrick Monahan eds., The Charlottetown Accord, the Referendum and theFuture of Canada (Toronto: University of Toronto Press, 1993), 260.60promoting its distinct society. The acceptance of Quebec’s demands could entail either equaldecentralization, separation or some form of asymmetrical federalism. By rejecting the MeechLake and Charlottetown Accords, ROC affirmed it’s principled belief that Quebec is a provincelike any other and that any collective ambition of Quebec must be subordinated to theCharter.’35 For example, though polling data reveals that although 35% of English Canadiansagree that “Canada is a pact between two founding groups, English and French rather than acountry of ten provinces,” only 17% of English Canadians are willing to give Quebec specialstatus as a condition of keeping it within Canada.’364. The failure of the Meech Lake and Charlottetown AccordsThe failed attempts of constitutional reconciliation of the Meech Lake and CharlottetownAccords highlighted these profound differences of opinion. The political debate over the MeechLake Accord revealed the willingness of provincial elites to play partisan politics with nationalunity and the Canadian publics unwillingness to accept any longer closed door executivefederalism. The fall out of the failed Meech Lake Accord is that a future reconciliation ishampered by the fact that the closed door “executive federalism”, where elite accommodationand compromise was possible no longer appears acceptable to the Canadian people. However,although one could argue that this type of elite accommodation took place in Canada fromMackay, Wayne, “Linguistic Duality and the Distinct Society In Quebec: Description ofSociological fact or Legal Limits on Constitutional Interpretation,” in K. Swinton, C.J. Rogers,eds. Competing Constitutional Visions (Toronto: Carswell, 1988), 109.136 Maclean’s/Decima Poll61confederation until the Meech Lake Accord, popular opinion has more than once unravelledclosed door agreements, even before the demise of the Meech Lake Accord. The multi-lateralnegotiations, popular referendum and subsequent failure of the Charlottetown Accord make itlikely that future constitutional amendments will involve an ever widening group of nongovernmental actors and will again have to pass the scrutiny of the electorate. The referendumprocess is a desirable development but it holds the danger that provincial elites will play partypolitics with proposed amendments. The fact that Quebec is a distinct society with its ownlanguage, traditions and shared history, is a sociological reality but it is politically unpopularwith ROC and therefore provincial elites use populist rhetoric to condemn Quebec’s demandsfor special status. ROC’s view is that Quebec is a province like any other and that all Canadiansshould have the same rights. According to polling date there is a fusion of internal and externalpreferences on behalf of a majority of English Canadians regarding what Canadian citizenshipshould entail.’37C. Liberalism in ROC and the concern for community in Quebec: a reconciliation inconceutions LCanadian citizenshipThe differences that undermine the relationship between ROC and Quebec go beyonddivergent perceptions of federalism where Quebec defends dualism and ROC promotes therecognition of provincial equality as the preeminent principle of federal justice.’38 There is amore profound and intrinsic philosophical division between ROC and Quebec. As we shall first137 Thid.138 Russell, “Can Canadians be a Sovereign People?, “ 708.62examine this debate is centred on the degree of flexibility that ROC and Quebec will accept intheir interpretation of individual rights, and of the “good life”. Finally, we will show that thisdebate stresses the need to differentiate nationality from citizenship in the Canadian polity.1. The relationship between individual and collective rights in Canada and QuebecQuebec accepts the Charter but also seeks distinct society status and accepts minorinfringements on individual rights in order to preserve and promote the Québecois collectivity.On the other hand, ROC sets forth the preeminence of individual rights as the guarantor ofhuman dignity, and as a common reference point for all Canadians. In the debate about thecontent of the Meech Lake Accord, English Canada expressed concern with the impact oflinguistic duality and distinct society provisions on the interpretation of the Charter. The conflictbetween the individual rights of the Charter and Quebec’s desire to be recognized as a distinctsociety is a fundamental stumbling block in constitutional reconciliation. The Charter impliesindividual rights and national standards, and distinct society involves collective rights to aparticular kind of culture and a recognition of regional differences. Taylor reflects uponQuebec’s and ROC’s diverging priorities in his essay, “Shared and Divergent Values”. He pointsout the irony that Canadian federalism is in crisis at a time when individual citizens’ valuestowards equality, non-discrimination, rule of law, and social provision have never been moresimilar.’39In English Canada, the Charter acts as a centralizing and unifying instrument because139 Taylor, “Shared and Divergent Values,” 156.63it has established a set of national standards for the protection of civil liberties.140 Taylordescribes the difference of opinion as follows: “the new patriotism of the Charter has given animpetus to a philosophy of rights and of non-discrimination that is highly suspicious ofcollective goals.”4’ For example, when the Quebec Liberal government invoked thenotwithstanding clause after Bill 101 was judged unconstitutional by the Supreme Court, ROCbecame increasingly critical of an undefined distinct society clause in the Meech Lake Accord.Even though the Quebec Liberal government did not renew the notwithstanding clause and nowpermits English signage, education in the language of one’s choice remains restricted and ROCis wary of what measures a Quebec government could take to preserve and promote theQuébécois collectivity.From a liberal perspective, the problem is that policies which aim to preserve andpromote culture actively seek to increase the community’s membership by coercive policies. InQuebec, Bills 22, 101 and 178 limited the rights of individuals in Quebec to attend the schoolsand hang signs in the language of their choice. The concerns about these bills are in part aresponse to the ominous language used by the government in the debate leading up to theiradoption. For example, the government document introducing the Charter of the FrenchLanguage stated that, “when the national language and culture are not threatened, the existenceof vigorous and active cultural minorities can only be a source of enrichment, provided the140 Hogg, Peter, “Federalism Fights the Charter,” in David Shugarman, Reg Whitaker, eds.,Federalism and Political Community (Toronto: Broadsview Press, 1989), 249.141 Taylor, “Shared and Divergent Values,” 165.64individuals concerned have sufficient knowledge of the national language to enable them tointegrate into the society. 142 René Levesque claimed that “every more or less clear headed andopen-eyed person surely knows that the nation is almost as vital to his balance and growth asthe family. De-nationalized, he becomes disoriented, incomplete, a member of an impoverishednation; a fearful nation, uncertain of everything including itself; he is thus degraded. Within adynamic nation on the contrary, he feels magnified, prouder and stronger.”143 Thiscommunitarian discourse has led to the underlying criticism that Quebec nationalism ispotentially harmful for minority groups in Quebec. The critical question will always remain asto how far the province of Quebec would go in order to preserve and promote a distinctQuébécois collectivity? Quebec nationalism has raised fears among citizens living in Quebecwho are not ethnically “pur lame” Québécois and who do not speak French as their mothertongue. The historical result of these concerns has been a steady exodus of anglophones andallophones from Quebec to other parts of Canada.The challenge of Quebecois nationalism and the question of individual and collectiverights leads us to a larger philosophical debate over the nature of community and the good life.As we discussed in our theoretical section, this debate represents a central dispute incontemporary political thought between liberal and communitarian thought.142 Quebec’i Policy on the French Language (Government of Quebec: March 1977), 41.143 Rene Levesque cited in Smiley, “Reflections on Cultural Nationhood and PoliticalCommunity in Canada”.652. Conceptions of “the good life” in Canada and QuebecIn her examination of the political thought of Lord Durham, Ajzenstat sets out that the“mainstream liberal analysis tells us that justice is threatened when a particular way of life isprivileged.”44Taylor, as a communitarian, disagrees with her assessment, and would argue thatthe state, “is not neutral between those who value remaining true to the culture of theirancestors and those who might want to cut loose in the name of some independent goal of self-development.”145 As we discussed in our theoretical section, liberal states are far from neutral.The Canadian state, by espousing liberal values obviously adopts an individualistic conceptionof the good life. In practice, whether a state promotes individual rights or collectivist rights, itnaturally creates substantive moral commitments with regards to a particular conception of thegood life. In Quebec, the flourishing of the French culture and language is viewed by manyQuébécois as a good in itself. In Cameron’s words, “membership in a collectivity is for manya condition of the good life: a conception of well-being which was exhausted by the idea ofmaterial security and possession would miss much of what is most important in the life of man,and within Canada to neglect the importance of either an individuals’ personal autonomy or hisreliance on cultural association for the good life would be to misconstrue the animating spiritof a great many Canadians”.’46For both Taylor and Cameron, cultural association is viewed as144 Ajzenstat, Janet, The Political Thought of Lord Durham (Montreal: McGill-QueensUniversity Press, 1988), 100.Taylor, “Shared and Divergent Values,” 175-76.146 Cameron cited in Ajzenstat, The Political Thought of Lord Durham, 15.66a human good comparable to national security and the acquisition of possessions.’47The importance of cultural association to individuals in Canada also raises the issue ofminority cultural groups in Quebec. In the course of this thesis we have highlighted theimportant differences in the claims of national minorities and immigrant minorities. Followingour logic, the Québécois, as a national minority and a founding people have the right to demandthat immigrants living in Quebec learn the language of the majority. However, because therewere English Canadians living in Quebec prior to Confederation, the same logic cannot applyto the anglophone minority residing in Quebec.Taylor argues that in a multi-national federation, one must yield to different conceptionsof the good life and allow communities to take active measures to protect their culture. Taylordistinguishes between, “fundamental liberties and privileges and immunities which are importantbut can be revoked or restricted for reason of public policy.”48 Taylor point out that there isa difference between basic human rights and the right to hang signs in the language of one’schoice. Although liberals are wary of permitting exceptions with regards to the freedom of theindividual, the distinct Anglophone community in Quebec must realize that a community canreject the ascription of language rights exclusively to individuals without embracing racism orexhibiting intolerance and violating the dignity of the individual.’49Ibid., 93.‘48 Taylor, “Shared and Divergent Values,” 176.149 Ibid.673. The need to distinguish nationality from citizenshipThe Charter patriotism expressed in ROC reflects an acceptance of individual rightsbased liberalism. We have already pointed out the irony that the Québécois also share liberalvalues and take for granted the procedural and substantive rights guarantees of the Charter.However, as we stated in Part I in our theoretical examination of positive liberty, recognitionand the myth of the neutral state, the forces behind Quebec nationalism may require significantreform of the Canadian polity in order to be reconciled. However, ROC’s unwillingness torecognize Quebec’s specificity increases the possibility of separation-by-default.Nevertheless, if the Québécois vote to separate from Canada, an independent Quebecwould have the same “recognition pressures”, that currently exist in Canada. If Quebec separatesthere would still be demands for self-government by aboriginals in Quebec, as well as demandsof other societal and cultural groups who may not share the same conception of the good lifeas Quebec elites. Breton argues that because the province of Quebec is viewed as the guarantorof the Québecois identity, there will be increased pressure to define the membership, not interms of ethnicity but in terms of language and citizenship.’5°Furthermore, according to Breton,“the political values and norms that prevail in Canada and Quebec will exert pressure towardsthe full inclusion of minorities in public institutions.”5’Finally, the low birth rate and150 Breton, Raymond, “From Ethnic to Civic Nationalism in English Canada and Quebec,”Ethnic and Racial Studies (Vol. 11, #1, 1988), 98.151 Ibid., 99.68demographic projections will drastically alter Quebec nationalism. Demographers estimate thatif the present birth rate in Quebec remains at the same level, by 2080 only 12% -15% ofQuébécois will be able to trace their ancestry to today’s population.152 The demographicprojections for Quebec indicate that because of the a shrinking population of “pur lame”Québécois who are most inclined to be nationalists, the window of opportunity for a majorityvote in favour of separation is narrowing and may be impossible in the long term.However, in the short- to medium-term, Canadian federalism will continue to bestrained by the Québécois nationalist movement. The misperception of Quebec in EnglishCanada and the fact that the federal government must be generous with Quebec interests for fearof raising nationalist criticisms have severely tested the workability of Canadian federalism. Thefact that Western Canada voted for the Reform party in the 1993 federal election demonstratesthat ROC will no longer accept favouritism towards Quebec or nationalist blackmail. There isa fundamental dispute between the view of ROC that the Charter and the liberalism that itembodies symbolizes a common reference point in its increasingly heterogenous territory on theone hand, against the desire of Quebec to preserve and promote the distinct society of theQuébecois collectivity on the other.Quebec should be recognized as a distinct society. Federalism was originally institutedin Canada largely to accommodate the French speaking majority in Lower Canada. It is a factthat Canadian confederation was a compact between French and English speaking Canadians.152 Ibid.69However, contemporary Canada no longer fits this dualistic mould. Multiculturalism and Charterpatriotism have replaced Anglo-conformity as the defining feature of ROC. Quebec’s claims forspecial consideration are joined by the claims of aboriginals and other oppressed social andcultural groups. The Canadian state’s ability to accept and affirm further differential citizenshipfor aboriginal and Québécois Canadians will in turn depend on the willingness of the aboriginal,and Québecois nationalists who seek differentiation and the provincial political elites whooppose differentiation, to moderate their demands. Federalism already provides for a significantdegree of differential citizenship. Different policies adopted by provincial governments forexample in the areas of union organization, welfare entitlements and age of majority act todifferentiate the law regime of Quebec from that of ROC. Federalism is also flexible enoughto create an institutionalized position for self-governing aboriginal communities. A problemremains in discerning the threshold where differentiation is excessive and so dissolve the bondsof common citizenship and common political community.Resnick argues in his book Thinking English Canada, that in order for ROC tounderstand that we live in a multi-national federation it needs to develop a sense of EnglishCanadian nationality. Political elites and public opinion makers in English Canada should actmore responsibly and pro-actively to avoid separation-by-default. Although the imaginedcommunity of Quebec is more contentious than separatists are willing to admit, English Canadashould not underestimate the importance of the French language to the Qudbécois.’53It appears153 LaSelva, “Re-imagining Confederation: Moving Beyond the Trudeau-Levesque Debate,”707.70that Quebecers view separation as a last resort only to be embraced if ROC remains indifferentto their demands for recognition. In order to avoid separation by default a new agreement needsto be reached between Quebec and ROC that recognizes Quebec as a distinct society. Thisagreement would have to affirm language as a fundamental human right but not necessarily thevarious manifestations of language, for example the right to hang a sign in the language of one’schoice. A defined distinct society clause would permit Bill 101 as a reasonable limitation in afree and democratic distinct society.In order to continue our examination of the practical recognition pressures in theCanadian polity, our next chapter will focus on status Indian nations in Canada who, arehistorically involuntary citizens of the Canadian state. The following chapter will examineaboriginal rights, individual rights and the reconciliation of self-governing status Indiancommunities with conceptions of Canadian citizenship.71Chapter 5: Aboriginal Rights, Individual Rights and Canadian CitizenshipThe aboriginal rights debate in Canada is a moral and political challenge.’54The historicoppression and continuing inequity between native peoples and the majority of Canadians makesthe resolution of the debate a moral imperative. The desire of aboriginal peoples to have anentrenched right to self-government also represents a political challenge for Canada in so faras it is opposed to traditional concepts of Canadian federalism and citizenship. Moreover, thedebate over aboriginal rights and self-government is inherently controversial because itsoutcome may “dissolve the moral and political ties between aboriginals and other citizens.”55The aboriginal rights and self-government debate is penetrated by a sense of guilt, taboosand demands for inter-generational justice.156 The inhibiting legacy of the historical assault onnative culture clouds the discussion about the functioning of future self-governing aboriginalcommunities. For example, Cairns believes that many anthropologists and political scientistsunderstate incidents of abuse of power in native communities in order not to jeopardize themovement for self-government. This behaviour is paternalistic because it assumes that nativescannot participate in such discussions as equals. Cairns believes that if non-natives opt out of154 LaSelva, Samuel, “A Dialogue of Democracy: Aboriginal Self-Government and CanadianFederalism,” 284.155 Ibid.156 Cairns, Alan, Lecture: “Aboriginal Citizenship” (Vancouver, March 24, 1994)See also Cairns, Alan, “Ritual, Taboo and Bias in Constitutional Controversies in Canada,”Timlin Lecture: University of Saskatchewan (November 13, 1989)72the debate, democratic discussion is impossible.’57Another issue underpinning the aboriginal question is the heterogenous nature ofaboriginal communities. As Cairns writes,“aboriginal nationality is a label for an indeterminate number of nations divided by tribe,treaty status, location, presence or absence of a land base and by a history of separateadministration for status Indians that Inuit and Métis 158The representative organizations of aboriginals are prone to factional tendencies. Indianpeoples do not consider themselves one nation; some bands are wealthier and larger than othersand therefore seek greater political and administrative autonomy.159 However, in their demandsfor significant autonomy, status Indians clearly exhibit first loyalties to their respective groups,which they consider as nations)6°Our attempt to describe aboriginal conceptions of citizenship is further hampered by the“absence of rich intellectual capital?? to describe how self-governing aboriginal communities areto relate to the rest of Canada.16’This lack of literature is not only a result of the small cadre157 Ibid.158 Cairns, Alan, “The Fragmentation of Canadian Citizenship?? in William Kaplan, ed.,Belonging (Montreal: McGill-Queens University Press, 1993), 188.159 Bear, Boldt, Menno, Long, Anthony, Pathways to Self-Determination (Toronto: Universityof Toronto Press, 1984), 178.,Boldt, Menno, J, Anthony, Long, “The Sovereignty and Nationhood of Canadian Indians:Tribal Traditions and European-Western Political Ideologies: The Dilemma of Canada’s NativeIndians,” Canadian Journal of Political Science (Vol. 17, September 1984), 551.161 Cairns, “Aboriginal Citizenship”73of aboriginal writers, but is also due to the fact that natives are reluctant to embrace the “whiteman’s” concept of citizenship.’62Despite these limits, the likelihood of expanded differential citizenship for aboriginal andnon-aboriginal Canadians underscores the merit of an examination of how self-governingaboriginal communities will interact with Canada. We will not enter into the debate about thesource of an “inherent” government authority of First Nations. Instead we will examine thereconciliation of self-governing aboriginal communities with Canada, working under theassumption shared by many legal scholars that an aboriginal right to self-government has beenentrenched in section 35 of the Charter, and that the powers of aboriginal government arelimited in scope and can only be exercised within the context of the Canadian federation.163It is important to note that substantial differential citizenship already exists between statusIndians and non-native Canadians because according to the Indian Act and section 25 of theCharter and Section 35 of the 1982 Constitution Act, aboriginals retain special group basedstatus and rights 164 For example, section 25 of the Charter protects any rights or freedoms heldby aboriginal peoples from treaties, the Royal Proclamation of 1763 or that will be gained inland claim settlements from being abrogated or derogated by the Charter.162 Interviews: Native Long House - UBC163 Slattery, Brian, “First Nations and the Constitution: a Question of Trust,” Canadian BarReview (Vol. 71, 1992), 262.164 Boldt, Long, “The Sovereignty and Nationhood of Canadian Indians. Tribal Traditions andEuropean-Western Political Ideologies: The Dilemma of Canada’s Native Indians,” 551.74Our discussion of aboriginals in Canada will be limited to reserve-based status Indiansas defined by the Indian Act. Within the framework of the historic and contemporary aboriginaldebate, this Chapter will first review considerations about aboriginal group rights and citizenshipin Canada. Second, we will examine the debate concerning aboriginal rights and theapplicability of the Charter to self-governing aboriginal communities. Third, we will challengethe arguments put forward by some aboriginal scholars who view aboriginal and non-aboriginalcultures as incommensurable. Finally, we will attempt to reconcile Indian conceptions ofcitizenship with Canadian citizenship. This reconciliation is not only essential for thepreservation of moral ties between natives and non-natives, but also for the possibility of apolitical and economic dialogue.A. Historical and contemporary political considerations about abori&nal group rights andcitizenship jj.CanadaThe historic relationship between status Indians and non-Indian Canadians has beencharacterized by oppression, cultural imperialism and paternalism. In the BNA act of 1867,status Indians were given special constitutional status and were subsequently treated as “wards”of the Canadian state who had to be assimilated into the dominant culture. In fact, until 1960,if status Indians wanted to become full Canadian citizens, they were obligated, through theprocess of enfranchisement, to give up their Indian status. As a result, Canadian citizenship wasviewed by them as a tool of assimilation, and as a mechanism for the state to justify itsprolonged assault on native culture. Ever since status Indian’s rejected the 1969 White paper,a vocal native critique of the liberal rights paradigm has developed. As we noted in our75theoretical observations, this communitarian perspective, premised on the belief that identicaltreatment and citizenship is a form of cultural imperialism, criticizes the liberal conception ofjustice as sameness”, and seeks the entrenchment of group rights in the constitution. Despitethe weaknesses in Kymlicka’s attempt to reconcile cultural membership with mainstreamliberalism, aboriginal rights do not necessarily clash with liberalism itself. As Danley argues,aboriginals could be granted special rights within the liberal tradition, based on liberal theoriesof property and liberal doctrinal nationalism whereby nations should be self-determining.165The theoretical debate about individual versus group rights within Canadian liberalismis also influenced by practical political considerations. First, there is substantial pressure fromthe international community that Canada be generous and compassionate with the aboriginalpeoples because of the historic discrimination and cultural imperialism levelled against them andalso because of the contemporary social problems in aboriginal communities. Second, thecontemporary Canadian political elites are more sensitive to native culture and recognize thatnative communities represent distinct societies. In the Charlottetown round of constitutionalnegotiations, in contrast with the province of Quebec, native groups were successful inextracting group rights concessions, in principle, from Canadian political elites. Despite thefailure of the Charlottetown Accord, the eventual acceptance of aboriginal group rightprovisions, and guaranteed aboriginal representation in national institutions seems inevitable.The Charlottetown Accord would have guaranteed aboriginal representation in the House ofCommons and the Senate; and the Royal Commission on Aboriginal Peoples is expected to165 Danley, “Liberalism, Aboriginal Rights and Cultural Minorities,” 184.76recommend an expanded package of group right provisions for self-governing nativecommunities. Furthermore according to Boldt and Long, if Canada denies the claims ofaboriginals for meaningful aboriginal self-government through political or legal stratagems, itwill inhibit the economic, social and political development of aboriginal communities and couldlead to violent extra-legal action on the part of frustrated native groups.’66 The violent conflictat Oka serves as a warning to Canadian elites on the dangers of not proceeding with aboriginalself-government within Canadian federalism.However, despite these international pressures, moral suasion and increased culturalunderstanding, and potential for extra-legal action, political elites in Canada are reluctant toexpand aboriginal rights and self-government because of their concern for the territorial integrityof Canada, the ownership of resources and the potential for individual rights abuses in selfgoverning aboriginal communities. There is also a fear that expanded differentiation betweenstatus Indians and non-aboriginal Canadians would undermine the moral and economic tiesbetween natives and non-natives. These concerns are reflected in the debate about theapplicability of the Charter of Rights and Freedoms, which is outlined in the following section.166 Boldt, Menno, HPhilosophy, Politics and Extra-Legal Action: Native leaders in Canada,’Ethnic and Racial Studies (Vol. 4, 1981), 205-21.77B. Group versus individual rights and the apnlicability of the Charter of Rights andFreedoms seIf-governing aboriginal communitiesAs we discovered in our theoretical section, collective rights for native peoples areproblematic because of their perceived threat to individual rights.167 A dialogue between Indiansand non-Indians must therefore address the potential for human rights abuses by self-governingIndian communities.In the political discussion of aboriginal self-government in Canada, the issue of collectiveversus individual rights remains unresolved and was one of the reasons for the failure of theconstitution conferences following the 1982 Constitution Act. Although the central stumblingblocks were the issues of a delegated or inherent right to self-government and fundingarrangements, another significant issue of contention was whether or not the Charter wouldapply to self-governing Indian communities.168 In particular, AFN leaders argued that self-governing aboriginal communities should be able to restrict mobility, property and voting rightsto non-aboriginals in spite of the Charter, whereas some provincial premiers were adamant thataboriginal self-government be subordinated to the Charter.It is important to remember that many of the aboriginal provisions in the CharlottetownAccord were only political accords to be negotiated at a later date. In other words, the same167 Kymlicka,‘tLiberalism, Individualism, and Minority Rights,” 188.168 Hawkes, David, Aboriginal Peoples and Constitutional Reform: What We Have Learned(Kingston: Queens University Press, 1989), 17.78obstacles which existed in the post-1982 constitutional setting persist today, and the issue ofwhether or not the Charter would apply to self-governing Indian communities is still pending.Our theoretical examination revealed that liberals are concerned that group rights could permitcollectivities to enforce oppressive social orders where individual deviancy would bepunished. 169 In her article, “Cultural Absolutism and the Nostalgia for the Community”, Howardprovides a powerful justification for liberal human rights.170 Her article is relevant to the currentcritique of the liberal individual rights paradigm from the perspective of aboriginal group rights.Howard argues that communitarians who dwell on romantic notions of peaceful historicalcommunities forget the oppressive features of rigid social orders based on custom. In thecontemporary Canadian aboriginal context, there is concern among Indians and non-Indians thataboriginal rights could be used to discriminate against individuals.171While the liberal position on the applicability of the Charter is firmly anchored in thebelief that in so far as aboriginals are Canadians they should abide by the Charter, the Indianposition remains divided. The following paragraphs will first present the mainstream andminority aboriginal positions concerning the applicability of the Charter. Finally, we willexplore the alternative solutions which have attempted to overcome the lack of consensusamong Indians.169 Howard, “Cultural Absolutism and the Nostalgia for Community,” 317.170 Ibid.171 Green, Joyce, “Constitutionalizing the Patriarchy: Aboriginal Women and AboriginalGovernment,” in Constitutional Forum (1992), 110.791. The mainstream Indian position concerning the applicability of the CharterThe majority of Indian leaders prefer the internal codes, tribunals and commissions tothe external protection provided by the Charter)72 In general, the individual approach of theCharter is seen by many Indians as serving the original intention of the 1969 White Paper, thatis imposing individual rights on aboriginals in order to promote cultural assimilation.’73TheAFN views the Charter as an infringement on its sovereignty and mistrusts the Canadian judicialsystem’s sensitivity towards collective Indian rights.’74 Kymlicka argues that Indian leaders havesought exemption from the Charter, not in order to ‘restrict dissent” in their communities butrather to protect their intergroup rights from charges of being discriminatory, according tosection 15, and in order to prevent individual and collective rights from being judged in abiased fashion by non-aboriginal judges.’75Several aboriginal scholars argue that cultural or group rights are necessary to protectaboriginal communities from internal Charter challenges. In particular, Mary Turpel, in her172 Gibbins, Roger, Ponting, Rick, “An Assessment of the Probable Impact of Aboriginal Self-Government in Canada,’ in Alan Cairns, Cynthia Williams, eds., The Politics of Gender,Ethnicity and Languages in Canada (Toronto: University of Toronto Press, 1986), 217.Ibid., 84.Gibbins, Roger, “Citizenship, Political and Intergovernmental Problems with Indian SelfGovernment,” in Rick Ponting ed., Arduous Journey (Toronto: McClelland and Stewart, 1986),374.175 Kymlicka, “Recent work in Citizenship Theory,” 49.soarticle “Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, CulturalDifferences”, contends that the existing liberal individual rights paradigm in Canada isincommensurable with aboriginal conceptions of community based citizenship. She believesthat the existing legal culture cannot account for the lived experience of aboriginals inCanada.’76 She states,“any case which presents a Canadian court with the opportunity to expand a rightsanalysis will be an opportunity to undermine the recognition of the aboriginal peoples asfundamentally different cultures.”177Turpel argues that Canadians must seek to move from the continued oppression of thestatus quo to the “tolerance of differences and the recognition of incommensurablecommunities.”178Scott supports aspects of Turpel’s analysis. He promotes the entrenchment of the inherentright to self-government in order to minimize or eliminate intervention by external legislativeor judicial authorities. Scott believes that the entrenchment of self-government is necessary forthe survival and revival of indigenous institutions.179 He argues, “appeals to external authoritiesare clearly inappropriate.., they lack the cultural knowledge of local authorities to decide matters176 Turpel, “Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, CulturalDifferences,” 33.177 Ibi&, 44.178 Ibid., 45.179 Scott, Cohn, “Customs, Traditions, and the Politics of Culture: Aboriginal Self-Governmentin Canada,” in Noel Dyck and James Waldram eds., Anthropology, Public Policy and NativePeoples in Canada (1993), 326.81of custom and community precedent.”18°Slattery believes that section 27 of the Charter, which provides, “this Charter shall beinterpreted in a manner consistent with the preservation and enhancement of the multiculturalheritage of Canadians’, acts to force the judiciary to interpret aboriginal cases in a mannerconsistent with the culture and traditions of aboriginal peoples18’For its part, the AFN rejects the application of the Charter because it is “white” andargues that its imposition would be a “continuation of imperialism with one set of valuesimposed upon another.”82The Grand Chief of the AFN, Ovide Mercredi argues that the Charterwould undermine traditional forms of Indian government and dispute resolution.’83He cites thecase of hereditary systems of government as an example of a native tradition that could bechallenged by the one-person one-vote premise of the Charter. He argues that the hereditarysystem with direct consultation and involvement with the people is also democratic. Accordingto Boldt, Indian leaders also fear that Charter equality provisions could undermine band counciljurisdiction over membership criteria’84,in other words, that a “series of Charter-based judicialdecisions in favour of individual interests over community interests could lead to a snow-balling180 Ibid., 327.181 Slattery, “First Nations and the Constitution: A Question of Trust,” 287.182 Green, “Constitutionalizing the Patriarchy: Aboriginal Women and Aboriginal Government,”115.183 Mercredi, Ovide, Turpel, Mary, In the Rapids (Toronto: Penguin, 1993), 98.Boldt, Menno, Surviving as Indians (Toronto: University of Toronto Press, 1993), 148.82destruction of their communal society.”1852. The minority Indian position concerning the applicability of the CharterAFN objections to Charter individualism fail however, to address the legitimate concernsof Indians who want to retain Charter protection both within self-governing Indian communitiesand in Canadian society when they seek employment, accommodation and services.186 Indianobjections to the Charter fail to recognize that although the international community expectsCanada to grant autonomy to aboriginal communities it also expects the Canadian governmentto make sure that there are no human rights abuses in self-governing Indian communities.In defense of the community-oriented nature of aboriginal communities at the expenseof the Charter, the AFN seems to ignore the penetrated realities of Indian communities.Traditional conceptions of aboriginal self-governance and decision-making were developed ata time when Indian communities were generally homogenous. However, in the contemporarysetting, Indian communities are heterogenous in philosophy and values. As a result of thisheterogeneity, Boldt argues that Indian communities are conducive environments for individualrights violations)87185 Ibid.., 148-49.186 Ibid., 151.187 Ibid.83Furthermore, additional fears of human rights abuses on self-governing Indiancommunities surfaced in the preliminary report of the Royal Commission on Aboriginal Peoples.According to the Report,“Many women, urban residents, and community members, while supportive of self-government, are worried that its implementation might perpetuate existing inequities, such asa lack of community control and accountability, abuses of power, elitism, and infringements ofindividual rights.”188The Royal Conunission also reported that concerns about band council and AFNaccountability and performance were voiced by aboriginals in every region of Canada. Forexample, in her submission to the Commission, Grace Meconse argued that,“with reference to the political process, the Indian leadership is a one party system. Ifwe are going to have democracy, the Indian leadership (must) understand the political anddemocratic process.”189The fears of nepotism, corruption and human rights abuses are based on contemporarycontroversies on Indian reserves. For example, many Indian women reinstated after the C-3 1amendments to the Indian Act have been denied the right to return to reserves. Some bandcouncils have argued that the collective interests of the band have priority over the individualrights of the women concerned)90The Native Women’s Association of Canada (NWAC) hasdocumented the patriarchy, violence and intimidation that are a fact of life on Indian reserves.In addition, the Canadian Panel on Violence Against Women has shown that Indian women are188 Framing the Issues (Royal Commission on Aboriginal Peoples: Ottawa, 1992), 24.189 , 25.Boldt, Surviving as Indians, 152.84two times as likely as non-native women to suffer from physical, sexual, psychological or ritualabuse. 191 NWAC is concerned that unless the Charter applies to self-governing Indiancommunities, aboriginal governments could invoke inherency or tradition to support measuresthat discriminate against women.192 Joyce Green describes the case of the Rosseau RiverReserve in Manitoba where the band council asked the RCMP and the tribal police to leave thereserve in order to replace them with local “warriors’. Women fearing for their safety had torequest that Grand Chief Ovide Mercredi intervene.’93 Doris Young of the Indian Women’sCollective argues that the Charter must continue to apply to self-governing Indian communitiesbecause,“although we believe that we have an inherent right to self-government we alsorecognize that since European contact, our leaders have mainly been men, men who are byproducts of colonialization, we believe that traditional values with respect to aboriginal womenare not practised in a total sense by our leaders.”94Many native women favour the use of the Charter because of its positive impact on thereinstatement of Indian women who had lost their status. The Charter has also helped Indianwomen highlight the sexual inequality in aboriginal communities.195191 Green, “Constitutionalizing the Patriarchy: Aboriginal Women and Aboriginal Government,”111.192 Ibid., 116.193 Ibid., 118.194 Framing the Issues, 24.195 Burrows, John, “Contemporary Traditional Equality: The Effect of the Charter on FirstNations Politics,” in University of New Brunswick Law Journal (Vol. 43, 1994), 7.853. The lack of consensus about the applicability of the CharterThe question of whether or not the Charter of Rights and Freedoms should apply to self-governing Indian communities has caused considerable division within Indian communities.’96In the process of aboriginal debates, rights are dismissed as being incompatible with aboriginalapproaches to land, family, social life, personality and spirituality. However, they are alsoenlisted to support aboriginal struggles against oppression.’97According to Burrows, the Chartercontains many values that are currently accepted and were traditionally endorsed by aconsiderable number of Indian peoples.198A real democratic dialogue has not yet taken place among the disparate Indiancommunities. The lack of internal dialogue regarding the legitimate concerns of Indiansundermines the credibility of democratic self-governing Indian communities. NWAC andaboriginal feminists have been derided as “puppets of white Toronto feminists” and arecriticized for “undermining the greater goal of aboriginal liberation.”199 Indian leaders argue thatmale and female Indians must present a unified front against a society which oppresses themequally. In the Charlottetown negotiations, NWAC was marginalized by the other native groups196 Ibid., 2.197 Nahanee, Teresa, “Dancing with a Gorilla: Aboriginal Women, Justice and the Charter,” inAboriginal Peoples and the Just Society (Ottawa: Supply and Services, 1993), 359-364.198 Burrows, “Contemporary Traditional Equality: The Effect of the Charter on First NationPolitics,” 3.199 Green, “Constitutionalizing the Patriarchy: Aboriginal Women and Aboriginal Government,”118.86and did not receive funding from the federal government. However, the debate over the rightbalance of collective and individual rights has also affected NWAC. Two leaders of NWAC,Sharon Maclver and Teresa Nahanee as well as the legal counsel Mary Eberts, were recentlyvoted out of their positions because of the perception that they were “too liberal rightsoriented.”200Gibbins and Ponting argue that to place self-governing Indian communities outside ofthe Charter is to severely weaken the citizenship of Indian Canadians.20’They predict that asbands experiment with self-government, there will be failures and injustices committed.202 ForGibbins, the potential for violations of individual rights and freedoms in self-governing Indiancommunities is enormous because of the small size, homogeneity, and extensive kinship andfamily ties.203 The extensive kinship ties could lead to nepotism and corruption. Other factorsthat contribute to the risks of self-government are the economic problems, the remoteness andthe lack of trained personnel.In an effort to protect Indians from the risks associated with self-government, NWAChas proposed the creation of one or several aboriginal charters of rights and freedoms. They do200 Interview John Burrows - Director of the First Nation Law Program (UBC Faculty of Law)April 12, 1994201 Gibbins, Ponting, “An Assessment of the probable Impact of Aboriginal Self-Governmentin Canada,” 218.202 Ibid, 235.203 Gibbins, “Citizenship, Political and Intergovernmental Problems with Indian SelfGovernment,” 375.87not want to modify the Canadian Charter but prefer to emulate the UN Charter. Obviously anative charter would be more salient for native dignity and nationalism than would be amodification of the existing Canadian Charter. Other commentators have recommended thatbands be given a notwithstanding clause which would require a three-quarter majority to beimplemented.204However, if Indian charters do not reflect substantial consensus of Indians, the Canadiangovernment should extend the protection of the Charter to self-governing Indian communities.The argument that natives who are unhappy with potential infringements on individual rightscan always leave the community and join mainstream Canadian society is not an acceptableargument, for it does not address the reality that in the international community, Canada wouldbe criticized for any human rights abuses in self-governing aboriginal communities.Furthermore, the weakest members of the community would typically experience the mostsevere exploitation and would be least able to leave the community and prosper in thesurrounding English or French society.£The decree Lcommensurabi1itv between Indian jiinon-Indians_jCanadaOur examination of the group versus individual rights debate revealed that a central issuein the establishment of Indian self-government was the degree of commensurability betweencontemporary Indians and non-Indians. The failure to find a common ground destroys thepurposes of defining a conception of citizenship acceptable for all members.204 Boldt, Surviving as Indians, 148.88In contemporary political thought, there is an expanding literature that argues that certaincultures are incommensurable with other cultures or with the dominant culture. As a result ofthis incommensurability, minority cultural groups may face systemic discrimination and shouldtherefore be represented only by members of their group.205 For example, Ovide Mercrediargues that, “we can speak for ourselves and no one else has the political or spiritual authorityto speak for us because Canadians are different.”206 However, Mercredi also indicates that,“(aboriginals) have to appeal to what we hold in common with non-native society... wehave a rich heritage of nation to nation, treaty to treaty, government to government relations.By reclaiming our past we will not destroy Canadian society, we will improve it.”207In the following paragraphs we will first outline the contours of a potential Indiancitizenship within the Canadian state, before examining the extent to which Indian and nonIndian societies in Canada are penetrated. Finally we will attempt to reconcile Indian andCanadian conceptions of citizenship.1. Indian CitizenshipThe implementation of Indian citizenship is contentious primarily because it is based onju&sanguis rather than jjj.j..jjs. Full aboriginal citizenship in self-governing aboriginalcommunities is generally based on Indian blood as defined by the Indian Act. Since the C-3 1amendments to the Indian Act, aboriginal band councils have adopted membership codes based205 Young, “Polity and Group Difference: A Critique of the Ideal of Universal Citizenship,” 7.206 Mercredi, Turpel, In the Rapids, 36.207 Ibid., 45.89on one or two parent rules or blood quantum rules. These membership codes pose seriousproblems for the future of Indian communities and for the equality of aboriginal citizens.In their study, ‘Population Implications of the 1985 Amendments to the Indian Act”,Clatsworthy and Smith demonstrate how the C-3 1 amendments and the subsequent heterogeneityof membership codes adopted by band councils, will lead to a declining register Indianpopulation in roughly fifty years and create differential status and aboriginal citizenship.208Bill C-3 1 was created in order to meet Charter equality provisions by eliminatinginequality between male and female aboriginal persons by reinstating status Indian women andtheir children who married non-Indians and lost their status prior to 1985. C-3 1 createsdifferential status, full Indians registered under 6(1) and half indians registered under 6(2). Theyhave unequal rights because they differ in their capacity to pass Indian status to their children.These descent rules are an unsatisfactory means to define citizenship in self-governing Indiannations 209In the words of Clatsworthy and Smith,“C-3 1 legislates inequality and violates first nations traditions which employ equalparticipation, the enjoyment of resources collectively, and decision making by consensus; it is208 Clatsworthy, Stuart, Smith, Anthony, “Population Implications of the 1985 Amendments tothe Indian Act, “ vii.209 Ibid.90also in contradiction to the democratic principles underlying the Canadian political system.”21°C-3 1 also creates a third class of people in first nation communities. Non-Indian spousesand children of 6(2) parents have the right to live on a reserve provided, that their spouse orparent is a band council member, but enjoy no rights within them unless the band council votesto make them members. C-3 1 revoked the right of non-Indian spouses to have legal status andhas the potential to create tension within first nation communities by creating within themfundamental differences in opportunities and rights. This tension could become entrenched inthe social and political life of first nation communities and could result in internal Charterchallenges to band council membership codes and the lack of political rights of spouses andnon-Indian children who grow up on reserves. A further issue of dispute will be the transfer ofcertificates of possession on reserves.21’The membership rules represent a serious threat to Indian democracy and areincompatible with the premises on which any form of Canadian citizenship should be based. Itis conceivable, however, that band councils be elected by a minority of residents in a reservewhich has a two parent membership code.The differential status of Indians within self-governing Indian communities will createsignificant human rights controversies within Indian communities. It is important to note that210 Ibid, 55.211 Ibid.91although Slattery has attempted to argue that aboriginal nations are “constitutional entities”rather than ethnic or racial groups, because of the definition of a status Indian in the Indian Actand the membership codes adopted in aboriginal communities, access to membership and henceto self-government, is also based on blood. An example of the types of controversies to beexpected was the recent events on the Kahnawake reserve in Quebec. On March 16, 1994, thechiefs of the Kahnawake reserve in Quebec asked 143 people to leave in order “to protect thegenetic quality of the community”212 The Globe and Mail reported that the chiefs asked peopleto leave because of a shortage of land and the need to protect the genetic quality of thereserve”. Band Councils defend the right to define what membership is by arguing that allnations define their membership. However, this example is not fully representative of therelationship between Indian and non-Indians in Canada. Contrary to this movement, thefollowing paragraphs describe the interlocking realities of Indian and non-Indian Canadians.2. The existence of a moral community between aboriginals and other CanadiansThere are mixed messages coming from Indian elites with regards to how much nativesand non-natives have in common. In order to gauge the commensurability of Indian and nonIndian culture in Canada, it is revealing to examine the existing similarities and shared realities.For example, 34% of Indians marry non-Indians, a figure which is projected to rise.213 Indian212 Globe and Mail (Toronto: March 17 1994)213 Clatsworthy, Smith, “Population Implications of the 1985 Amendments to the Indian Act,”vii.92communities below the 60 parallel have substantial contact with non-aboriginals. According toMercredi, approximately 60% of status Indians live in urban areas, off their reserves; in fact,according to his book, almost 10% of all Indians live in metro Toronto.214 Other similaritiesrelate to modernization, employment, mobility and the requirement of gender equality.215 Cairnsdescribes Indian societies as penetrated societies, “their members live in many worlds at onceand relate to more than one community”.216LaSelva argues that despite the legacy of oppression, a moral community exists betweenIndians and other Canadians. As evidence of this community, he asserts that the central politicalstrategy of natives is the “politics of embarrassment” which is predicated on a set of moralclaims that are intended to appeal to non-natives. He also points out that all propositions forself-government assume some form of continued fiscal support which again implies a series ofmoral claims.217 However, the evidence put forward by LaSelva does not suggest a pro-activemoral community; rather, it describes a community based on the awareness of the other party’sweaknesses.Building upon his analysis of the moral interdependence of aboriginal and non-aboriginalCanadians, LaSelva disputes the incommensurability of cultures thesis, the rejection of214 Mercredi, Turpel, In the Rapids, 43.215 LaSelva, “A Dialogue of Democracy,” 304.216 Cairns, Alan, “Aboriginal Canadians, Citizenship and the Constitution,” 23.217 LaSelva, “A Dialogue of Democracy,” 305.93liberalism and the stereotypes of de-colonization put forward by some advocates of aboriginalcultural rights. He contends that the aboriginal strategy aims at creating a mythical era ofpeaceful native culture prior to European contact and compares the rejection by many nativescholars of the individual rights of the Charter with the third world de-colonization movement.Both Cairns and LaSelva believe that the widespread use by Indian leaders of the discourse ofcolonialism in describing their aspirations for self-government is problematic. For these authors,it implies that in order to be liberated, Indians must secede. However, only the Mohawk andsome Albertan nations speak of real sovereignty. Therefore, this de-colonization discourse is notonly an inaccurate representation of Indian goals but it is also potentially irresponsible as itrejects the obvious similarities between aboriginals and non-aboriginal Canadians. Furthermoreas Flanagan has demonstrated, “sovereignty” is not well suited either to the political traditionsor aspirations of status Indians in Canada.218 For the current generation of Indian leaders, thesovereignty discourse is a means to an end rather than an end in itself.219Although the de-colonization discourse is a powerful rhetorical device of Indian leaders,it contradicts the penetrated reality of aboriginal communities in Canada. Even if a substantialdevolution of power accompanied aboriginal self-government, Indians will continue to interactwith, marry and work with non-aboriginal Canadians. Strong homogenizing tendencies haveemerged, including the commitment to gender equality, and the widespread desire to reap the218 Flanagan, Thomas, “The Sovereignty and Nationhood of Canadian Indians: A Comment onBoldt and Long,” Canadian Journal of Political Science (Vol. 18, June 1985), 367.219 Boldt, Long, “The Sovereignty and Nationhood of Canadian Indians,” 537.94benefits of modern technology. The reality is that the liberal value of gender equality is assalient for aboriginal women as non-aboriginal women and that modern technology hasdrastically altered the traditional native way of life. In Boldt’s words,‘After more than a century of exposure to Euro-Canadian hierarchical, political andeconomic and social institutions, norms and values, tribal customs and traditions have becomeinoperative and no longer guarantee the human dignity of individual members within theircommunities.”22°It is clear that Indian communities will have to cooperate with those that exploitedthem.22’The incommensurability thesis of Turpel does not recognize the inter-connected realityof aboriginals. Native leaders cannot return to the past traditions as natives are in various stagesof acculturation and share many of the values of Canadian liberalism. The various degrees ofacculturation present in Indian communities could either act as a natural safeguard for individualrights or could push bands to attempt to reduce acculturation through promoting the survivalof the collective culture at the expense of the individual.3. A reconciliation of aboriginal and Canadian citizenshipThe penetrated reality of natives in Canada, their weak economic resources and theirphysical dispersion makes native separation all but impossible for the vast majority of aboriginalcommunities. Furthermore, the Canadian government will not accept full independence or220 Boldt, Surviving as Indians, 151.221 Cairns, Lecture: “Aboriginal Citizenship”.95absolute sovereignty for Canada’s Indians.222 A continuing relation with Canada is thereforeinevitable and our discussion of the existence of a moral community between Indians and ROCsuggests that we can work together.223Indian self-government implies that Indian peoples will be citizens in three communities,their native community, their province and also the pan-Canadian community. The centralquestion that native self-government confronts us with is to what extent are native peoplecitizens of Canada and to what extent are they citizens of first nation governments and how canthese different conceptions of citizenship be reconciled?224Kymlicka argues that self-governing native communities will naturally lead to distinctand separate citizenship identity for each group but that it is possible for people to have twooverlapping communities.225According to Gibbins and Ponting,“no matter what is the status of aboriginal self-governing communities, the residents ofsuch communities will continue to have an interest and a stake in the affairs of the federalgovernment. Aboriginals will want the right to participate in national debates as Indians and as222 Boldt, Long, “The Sovereignty and Nationhood of Canadian Indians,” 548.223 Cairns, Lecture: “Aboriginal Citizenship”.224 Cassidy, F., Bish, R. Indian Government (Toronto: IRPP, Oolichan Books, 1989),. 53.225 Kymlicka, “Recent Work in Citizenship Theory,” 36.96Canadian citizens and would not want their opportunity limited by their Indian status.”226Gibbins, in his contribution to Arduous Journey argues that in order for Indians to retainCanadian citizenship, three basic conditions should be met. First, Indians should retain thefranchise and Charter protection. Second, Indians should start to pay taxes. Third, there shouldbe a redistribution within and among self-governing Indian communities.227 The status Indianposition on taxation is clear; it insists on a complete exemption, arguing that taxes have alreadybeen paid in perpetuity by the loss of aboriginal lands. Gibbins and Ponting argue that theaboriginal free-rider status could undermine political support for continued fiscal transfers.228They also argue that because the Canadian government will continue to provide financialassistance to self-governing communities, it gives the federal government the right to imposeconditions on self-government, such as Charter protection.229In response to native demands for self-government, Cairns hopes that “a basis forsympathy, empathy and sharing can survive the reinforcement of difference.”23°Cairns believesthat some form of special positive status is desirable and inevitable but outlines the potentialdangers for aboriginal communities of over-sufficient and under-sufficient differentiation. Cairns226Gibbins, Ponting, “An Assessment of the Probable Impact of Aboriginal Government inCanada,” 207.227 Gibbins, Arduous Journey, 370-71.228 Gibbins, Ponting, “An Assessment of the Probable Impact of Aboriginal Self-Governmentin Canada,” 214.229 Ibid., 233.230 Cairns, “Aboriginal Canadians, Citizenship and the Constitution,” 23.97believes that a resolution, should “stress connections to the Canadian community and the valuesof a common citizenship as well as giving sufficient support to natives to protect theirculture”.231 The incommensurable thesis put forward by Turpel is not a invitation for a realdialogue between aboriginals and non-aboriginals. Turpel’s arguments can be viewed as anexaggeration of difference in an effort to realize her political goal for aboriginals- the inherentright to self-government. Fortunately, other aboriginal writers such as Burrows are attemptingto create a conversation between liberal rights and aboriginal traditions. Natives and non-nativesshare a moral community and as LaSelva stresses, “Canadian federalism is flexible enough topromote aboriginal emancipation while recognizing the social and moral constraints ondifferentiation.”232There is a growing consensus among both English and French Canadian elites thataboriginal peoples represent self-determining nations which are deserving of increased powersof self-government. It is possible that this consensus could be reconciled within the liberaltradition not because cultural membership is necessary for political autonomy, but by appealingto liberal notions of doctrinal nationalism, international law regarding self-determining peoplesand liberal theories of property. For example legal scholars such as Macklem argue that AngloCanadian conceptions of property, contract, sovereignty and constitutional right can bereconceptualized “to permit the construction of legal spaces in which First Nation self231 Ibid., 27.232 LaSelva, “A Dialogue of Democracy,” 284.98government can take root and flourish.’233Aboriginal communities in Canada are geographicallydispersed, heterogenous in language, culture, values, economic resources and the majority arepenetrated by liberal values and require continued fiscal transfers from the federal government.In light of these realities, it is necessary for aboriginal and non-aboriginals to work together.This chapter focused primarily on status Indians and its goal was to raise legitimatequestions about the contemporary debate over Indian citizenship and self-government. Thehuman tragedy of Indian reserves requires that Canadians accommodate Indian demands forsubstantial autonomy. However, before substantial autonomy can be granted, an honestdemocratic dialogue must take place within Indian communities about issues of accountability,aboriginal feminism and the problems of different classes of aboriginal citizens created bymembership codes. A second dialogue must take place between aboriginal and Canadian leadersabout how we are going to work together in the future and how aboriginal communities aregoing to guarantee individual rights protections. The end result of these dialogues could be amodification of Canadian federalism to accept a third order of aboriginal government, anaboriginal justice system for criminals who are not a threat to others and provisions to preserveand promote aboriginal language and culture. These dialogues, however, must reflect theinterconnected reality of Indian and non-Indian Canadians and provide concrete provisions forthe protection of fundamental human rights in self-governing Indian Communities.233 Macklem, “First Nation Self-Government and the Borders of the Canadian LegalImagination,” 382.99In Chapters 4 and 5 we examined the recognition pressures of the Québécois andaboriginal national minorities in the Canadian polity. In Canada, however there exists anincreasing body of literature which argues that there are other differences between Canadiansthat are as deep as between English Canadians, French Canadians and aboriginal peoples. Thisliterature refers to non-territorial groups of interest that share a particular life situation. In ourfinal Chapter we will critically examine the arguments employed to advocate differentialcitizenship for non-territorial groups in Canadian society.100Chapter 6: Non-territorial groups and the politics of difference in CanadaAs we noted in our theoretical considerations, recognition is an important part of modernidentity and is increasingly considered as an integral part of citizenship. For Taylor, identity iswhat defines us as human agents; it is who we are and recognition implies acceptance ofourselves by others.234 Although Taylor is primarily concerned with national minorities, he isaware that the discourse of recognition could unleash an avalanche of demands by social andcultural groups. However, in the Canadian context there is a significant difference between thedemands for recognition as distinct societies from the Indian and Québécois political elites, whoseek governing powers within deep diversity communities and the claims of non-territorialgroups who seek to be recognized and represented as a category of citizens with a particularlife situation.235 The latter movement has been developed by critical race and feminist scholarswho argue for differential citizenship in the form of group rights and representation for bothcultural and social groups which are oppressed by racist, sexist, homophobic, ageist and ablestbehaviour.Ironically, and contrary to the Québécois and aboriginal national minorities, until the1960’s, many of the groups which are now calling for group rights sought to assimilate into auniform citizenship.236 The movement for differentiated citizenship seems to have originated234 Taylor, “Shared and Divergent Values,” 190.235 Ibid., 191.236 Young, Justice and the Politics of Difference, 161.101from the frustration of social and cultural groups who fought to be included in the “we”community of undifferentiated citizenship, only to realize that they could not achieve real socialequality and respect, despite the apparent removal of discriminatory measures.In the Canadian context, an example of these non-territorial group pressures are thedemands of scholars including Jackel and the claims of womens’ groups such as the NationalAction Committee on the Status of Women that the Canadian House of Commons and Senateshould become “houses of equality” and act as a forum where the different voices of oppressedgroups could be heard through a system of guaranteed representation.237 In Canada, citizensexhibit a plurality of identities. Traditions, and traditional views towards sexual conformity,gender roles and sexual lifestyles have been eroded by the pressures of group consciousness.238Our theoretical discussion in Part I demonstrated that liberalism is not opposed to theerosion of traditions. Liberals such as Mill valued the diversity and uniqueness of individuals,groups and civilization and detested narrowness, uniformity, the crippling effect of persecution,the crushing of individuals by the weight of authority, custom or public opinion.239 However,Mill and contemporary liberals oppose the discourse of the advocates of the politics ofdifference who argue for the institutionalization of “specific traditions, practices, languages, and237 Young, “Polity and Group Difference: A Critique of the Ideal of Universal Citizenship,” 7.238 Cairns, Williams, Constitutionalism, Citizenship and Society in Canada, 12.239 Berlin, Four Essays on Liberty, 176.102other culturally specific forms of social existence” 240 Our theoretical observations revealed thatliberals oppose group rights, and radical cultural pluralism that threaten individual autonomy,but also to the democratic dialogue. We will now examine the discourse of the advocates of apolitics of difference and then analyze the theoretical and practical weaknesses linked to theirarguments.A.The rationale fQLdifferentiated citizenshipIn her article, “Polity and Group Difference”, Young argues that no general perspectiveexists which all persons can adopt or from which all experiences and perspectives can beunderstood and taken into account.241 According to Young, the only way to express all groupexperiences and social perspectives is to have special group rights and representation.242Youngargues for “differentiated citizenship” in the form of group rights and representation for socialgroups that are oppressed by racist, sexist, homophobic, ageist and ablest behaviour. Heranalysis draws upon the traditional arguments in favour of affirmative action programs. Shestates that the equal treatment of social groups with unequal power resources is insufficient andtherefore tends to sustain the existing imbalance of justice. Young contends that although theliberal ideals of equal citizenship may be blind to race, gender and other group differences,240 Young, Justice and the Politics of Difference, 161.241 Young, “Polity and Group Difference: A critique of the ideal of Universal Citizenship,”7.242 Ibid.103society is not. The logic of conferring special privileges to needy groups is based on theconception that,“Privilege allows dominant groups to assert their experience of and perspectives on socialvents as impartial and objective. In a similar fashion, their privilege allows some groups toproject their group-based capacities, values and cognitive and behavioral styles as the norm towhich all persons should be expected to conform” 243In the contemporary political setting, Young describes three public policy areas of specialinterest for the implementation of her arguments: first, affirmative action, second, comparableworth, and third, bilingual and bicultural education and service. According to Young, in seekingsocial justice within these policy areas,“The goal is not to give special compensation to the deviant until they achieve normalitybut rather to de-normalize the way institutions formulate their rules by revealing the pluralcircumstances and needs that exist or ought to exist within them.”244Many oppressed social and cultural groups insist that society affirm their difference andprovide various kinds of institutional support and recognition for their difference. For example,public funding for group-based organizations, language rights, guaranteed representation inpolitical bodies, and legal exemptions for cultural practices are advocated. These demands mustbe debated in contemporary liberal societies. It is important to note that the CanadianEthnocultural Council has declared that it will not seek group rights protections for “hyphenatedCanadians. However, Canadian ethnic groups are seeking government services and educationin languages other than English or French.243 Thid., 10.244 Ibid., 13.104Young believes that liberal pluralism can work if disadvantaged groups are given aninstitutionalized position in the policy process. She argues that,“people necessarily and properly consider public issues in terms influenced by theirituated experience and perception of social relations. Different social groups have differentneeds, cultures, histories, experiences and perceptions of social relations which influence theirinterpretation of meaning and consequences of policy proposals and influence the form of theirpolitical reasoning.”245Young has faith in the liberal political process to catalyze a real public dialogue onceoppressed views are given an institutionalized position. She argues that liberal democraticsocieties should remove the pretext of impartiality and describes her politics as a politics ofinclusion. Young’s thought echoes that of Lustgarten in the sense that they both believe that ifgroups are recognized it will strengthen the commitment of individuals within groups tosociety-at-large.Kymlicka agrees with the inclusionary ideals of Young’s vision of citizenship. He argues,“that if the aim of citizenship is full membership and participation, then people can bedenied effective citizenship if they feel culturally excluded, if they are unable to identify withsocieties institutions and customs.”246245 Ibid., 5.246 Kymlicka, “Recent Work in Citizenship Theory,” 23.105&&critigue Qj1hpoIitics LdifferenceIronically, the inclusionist objective of advocates of differentiated citizenship may resultin re-segregation within liberal democratic society. In the paragraphs that follow we will analyzethe reasons underpinning the negative outcome. First, the politics of difference could lead togroup rights provisions, where individuals are defined by ascriptive categories. Second, grouprepresentation could cause an erosion of cross-group empathy. Third, group rights could provecounterproductive to the goal of including oppressed groups by creating a societal backlash ofincreased racism and resentment. A further result of differentiated citizenship could be a declinein the democratic principles of public reasonableness.1 Which groups deserve differentiated citizenship?An initial impediment to the implementation of differentiated citizenship is the difficulttask of determining which oppressed social and cultural groups should receive group rights.Young admits that most people in modern society have multiple, cross-cut group identities anddifferences. In fact, one category, that of the aged, is eventually shared by all citizens.Therefore, how can we determine who should receive special group representation?Kymlicka criticizes Young’s categories, arguing that they would include approximately80% of the Canadian population: “in short everyone but relatively well-off, relatively young106able bodied heterosexual white males.”247 Kymlicka also argues that group representation couldlead to an endless proliferation of sub-groups clamouring for further sub-division of grouprepresentation and bitter disputes about who should receive it.2482 The dangers of stigmatizationAs we discussed earlier in the critical review of Kyniiicka’s attempted reconciliation,group representation can stigmatize individuals and reduce individual autonomy because it actsto psychologically segregate people as defined members of ascriptive groups. In “Democracyand the Politics of Difference”, Elshtain provides a defense of the traditional liberal citizenship.She describes the cultural pluralist discourse as promoting the politics of re-segregation andwants to return to the traditional democratic ideal where differences are expressed in the privatesphere and are not endorsed by the state.249The stigmatization that would result from group representation may also undermine itsgoal of giving disadvantaged groups a meaningful voice in the public policy process. Kymlickaquestions the desirability of group representation when he states that it could become an excusefor white men not to understand or represent the needs of others.25°In support, he cites research247 Kymlicka, “Group Representation in Canadian Politics,” 76.248 Kymlicka, “Recent Work in Citizenship Theory, “ 5.249 Elshtain, Democracy on Trial, 81.250Kymlicka, “Group Representation in Canadian Politics,” 68.107that contends that the guaranteed representation of the Maori people in New-Zealand has beentaken by the non-Maori as an excuse to absolve them of any representative function in Maoriaffairs. Therefore, Kymlicka acknowledges the potentially negative consequences of a politicsof difference. For example, he writes, “if affirming difference is required to integratemarginalized groups into the common culture, there may cease to be a common culture.”251Furthermore, he argues that to renounce the possibility of cross-group representation is torenounce the possibility of a society in which citizens are, “committed to addressing each othersneeds and sharing each others fate.”252Kymlicka believes that if group representation for oppressed social and cultural groupswas to be enacted, it should be viewed as the temporary measure of a society on the road toequality. He contends that if there were no “sunset clauses” placed on group representation, theycould act to permanently segregate society. In fact, groups might actively pursue a politics ofdifference and deny that a more egalitarian society had been achieved in order to retain theirspecial privileges.253 Furthermore, if the state extends official constitutional recognition orbenefits of public policy based on groups it could, “induce individuals to redefine themselvesto enhance their capacity to receive state support.”254251 Kymlicka, “Recent Work in Citizenship Theory,” 24.252 Ibid.253 Kymlicka, Liberalism, Community and Culture, 171.254 Cairns, Williams, Constitutionalism, Citizenship and Society in Canada, 14.1083. The erosion of democratic dialogueThe most dangerous side effect of the arguments employed by advocates of a politicsof difference is that it is premised on the assumption that we cannot have empathy with othercitizens from different social and cultural groups.Elshtain responds to the advocates of a politics of difference and group rights in herwork Democracy on Trial. Elshtain argues that if no amount of thought or sympathy, no matterhow careful or honest, can transcend the barriers of experience, then we must renounce thepossibility of cross-group representation and hence the possibility of democratic dialogue. ForElshtain, the politics of difference leads to identity absolutism, where people are judged by whatthey are rather than what they say.255 Elshtain’s concept of identity absolutism relates to Cairns’sdescription of the “insider/outsider” phenomenon in discussions on aboriginal, feminist, and gayand lesbian affairs in Canada, whereby only a member of the group can describe internal groupdebates.256 Identity absolutism, or incommensurability destroy public reason, political judgement,and compromise.257 If we literally cannot understand each other then the human dialogueessential for democratic communication is impossible.258255Elshtain, Democracy on Trial, 40.256 Cairns, “Ritual, Taboo and Bias in Constitutional Controversies in Canada,” 17.257 Elshtain, Democracy on Trial, 58.258 Ibid., 75.109In his essay, “Recent Work in Citizenship Theory”, Kymlicka classifies Elshtain’sarguments as belonging to “liberal virtue theory”. Liberal virtue theory maintains that theultimate political virtue of citizenship is the willingness to engage in public discourse.259“Public discourse is not just the willingness to participate in politics, or to make one’sjews known, rather it includes the willingness to listen seriously to a range of views which,given the diversity of liberal societies, will include ideas the listener is bound to find strangeand even obnoxious. The virtue of political discourse also includes the willingness to set forthone’s own views intelligibly and candidly as the basis for a politics of persuasion rather thancoercion.”26°The concept of “public discourse” applies to the politics of difference debate because areal dialogue should take place in the public sphere where participants use reason, not coercionor manipulation. Liberal citizens should learn to justify their political demands with publicreasons that other citizens of different faith and opinion can understand and accept as consistentwith their status as free and equal citizens.261 It is not acceptable to permit groups to say, “I amdifferent, you cannot understand me and I demand the following” without a real debate. A realpublic discourse requires that inhibitions and political correctness recede into the backgroundto enable an honest dialogue.259 Kymlicka, “Recent Work in Citizenship Theory,” 18.260 Ibid.261 Thid., 18.1104. The agenda of the politics of differenceA further limit to the arguments supporting differential citizenship is that they mayconceal an agenda that goes beyond their apparent goal of civic inclusion. In fact, advocates ofdifferential citizenship may want to move beyond equality of opportunity, to compete in theeconomic and cultural marketplace, to equality of result. For example, Jackson, who argues thatthe negative liberty in section 15 of the Charter is not enough to ensure that individuals whochoose to associate in a given group will be accorded dignity by the community at large doesnot seem to realize that the liberal state cannot legislate dignity.In seeking the equality of result between individuals and groups, supporters of thepolitics of difference favour an interventionist state. For example, the politics of differencemovement seeks to expand the economic citizenship of individuals, although these ambitionsare not prominent in its discourse. Young mentions the marxist interpretation of societalstructure at the beginning of her article, “Polity and Group Difference”, but declines to enterinto the debate. A marxist interpretation would assert that, “economic life is not sufficientlyunder the control of citizens to affect the unequal status and treatment of groups.” 262Mouffe, however, is more honest in her desire to expand economic citizenship as a wayto democratize capital accumulation. In fact, the politics of difference appear to be deeplyrooted in critical race and marxist theory. Advocates of differentiated citizenship argue that the262Young, “Polity and Group Difference: A Critique of the Ideal of Universal Citizenship,” 2.111liberal belief in formal equality and public discourse is a rhetorical tool to retain privilege anddominance. 263 An underlying problem with the agenda of advocates of a politics of differenceis that their criticisms of liberal democratic citizenship relate to larger issues such as thestructure of the capitalist economy and the dynamics of majority preferences in democraticregimes.263 Kernerman, Lecture.112ConclusionPart I of our thesis analyzed the theoretical aspects of individual versus group rights andliberal and communitarian conceptions of citizenship. In Chapter 1 we reviewed the classicalliberal conception of citizenship as the promotion of equality and undifferentiated rights as aguarantor or individual welfare. Our examination revealed that liberals reject group rights andradical cultural pluralism out of concern that it could lead to a reduction of individual autonomyand an erosion of cross-group dialogue. In Chapter 2 we examined the communitarian critiqueof liberal conceptions of citizenship. We analyzed the cultural pluralism of Lustgarten and VanDyke and reviewed the concepts of positive liberty and recognition as the driving forces behindgroup rights pressures in liberal democracies. Our observations demonstrated that although theliberal state is not completely neutral with regards to the promotion of a certain conception ofthe good life, it is more neutral than a communitarian state because it fosters individualautonomy and a structure for democratic dialogue. In Chapter 3 we critically reviewed theattempt by Kymlicka to reconcile cultural membership within the liberal tradition. AlthoughKymlicka fails to reconcile cultural membership with liberal theory, his work underlines thebenefits of cultural membership for individuals. Kymlicka’s work suggests that within the globaleconomy, cultural identity is an increasingly important qualitative element in an individual’s life,providing him with an enhanced local social structure and with personal self-respect. Ouranalysis of Kymlicka’s attempted reconciliation also revealed that liberal thought is wary ofinequalities that could result from group membership by opposition, whereby an individual maybe designated as a member of a group in spite of his individual choice. In response to this113situation, liberals support multiculturalism and affirmative action programs to promote groupsthat face discrimination. However, liberals stop short of accepting group rights or representation.Although a reconciliation of liberal and communitarian conceptions of citizenshipappears unlikely at the theoretical level, in the Canadian context, constitutional provisions havealready acted to create elements of individual and collective rights. Our study revealed that therealready exists differential citizenship for Quebec and status Indians according to the provisionsin the BNA Act and the Charter. As shown in Part II, the contemporary Canadian polity isconfronted by differential citizenship paradigms and recognition pressures, which will dominateits future evolution. In Chapter 4 we reviewed the nature of Canadian federalism and examinedthe fundamental disputes between ROC and Quebec. These disputes originate in misperceptionsconcerning the nature of federalism and the conflict between Quebec’s aspirations to preserveits language and culture and ROC’s commitment to the equality of provinces and to thesupremacy of individual rights. However, because of the interactive loyalties and differentiationsinherent to the Canadian federal regime, federalism may provide the flexibility to accommodatethe demands of Québecois, as well as aboriginal nationalists. In Chapter 5 we examined thecomplex moral, political and economic debate involved in reconciling aboriginal demands forself-government and differential citizenship. We discovered that the cultures of aboriginal andnon-aboriginal Canadians are not incommensurable and that the interconnected reality ofaboriginal and other non-aboriginal Canadians will inevitably define and restrict the scope ofaboriginal self-government and citizenship. Finally in Chapter 6, we analyzed the argumentsemployed by advocates of group rights for oppressed social and cultural non-territorial groups.114We concluded that the stated goal of their advocates, which is to include excluded groups, couldin fact act to re-segregate groups and jeopardize cross-group dialogue.This thesis was not empirical in nature, but used philosophical and conceptual analysisand logical argument to analyze the degree of difference that Canadian society could supportwithout destroying the sentimental bond of citizenship that develops when citizens feel theybelong to the same moral and political community. The assumption made in our introductionwas that diversity or differentiation becomes too exaggerated when citizens no longer feel likethey are similar and can reach agreement on common objectives. The central and recurrentstumbling block in our search of Canada’s minimal common denominator was the contentioussupremacy of individual rights over group or collective rights, reflected in the debate concerningthe applicability of the Charter. What emerges from our discussion is the conceptual appeal ofthe Charter as a common Canadian focal point, based on the idea that building a society inwhich differences of ethnicity, sex, religion, and culture are no longer relevant to people’s rightsremains a noble project. The Charter can be a common denominator because while it recognizesdifference, it also provides a significant degree of commonality between Canadians. However,although the Charter can provide Canadians with a shared object, our discussion also set forththe vital role of communitarian identity for the welfare of many Canadians.Our examination of communitarian critiques of homogenous liberal conceptions ofcitizenship and the recognition pressures in Canada have revealed the underlying confusion andthe complex web of interests and ideological conflicts underpinning the Canadian polity.115Although we have focused on the dangers of differential citizenship and have assumed that toomuch difference leads to the lack of common objectives, ironically the real threats to thestability of the Canadian polity appear to be status quo federalism and homogenous liberalcitizenship. It is also ironic that Canada is on the verge of fragmentation despite the fact thatits citizens have never been more similar in terms of their personal values. The growth inindividual, group and national self-consciousness has been described as a result of the post-modern assault on established values, and the lack of credibility of public institutions in thecontext of a relatively affluent democracy. In Canada, the spectacular growth in groupconsciousness has also been a result of historic inequities between groups, the power of ideasand the indescribable yearning for positive liberty and recognition.Any progress in the current stalemate lies in the capacity to overcome the post-modernbelief that groups are incommensurable. Our theoretical and practical discussions have shownthat the incommensurability thesis undermines the necessary dialogue between minority anddominant groups in society. If we cannot understand each other, why have guaranteedrepresentation? Humans are not incommensurable. We share many basic traits in common.Human beings at all times become aware of needing such things as food, shelter, security,language, sexual satisfaction, and human companionship. We are joined by the knowledge ofour mortality, our existential loneliness and our need to love and be loved. Post-modern thoughtundermines democratic society by weakening the appeal of liberal democratic principles andinferring that different social and cultural groups are incommensurable. Liberal democracydepends upon an appeal to reason which infuses the rule of law. Liberal citizens must therefore116try to engage in an intra-cultural human dialogue.Therefore, the minimum requirement for all groups in society appears to be a form ofintegration only so much as to conform to public reasonableness in order to promote ademocratic dialogue. Liberal citizens are free to pursue the public policies of their choice butshould not seek institutional representation on the grounds that other citizens cannot understandthem.Classical conceptions of liberal democratic citizenship may seem artificial or insufficientsince citizens do have deep divisions along cultural, ethnic, class and gender lines. Indeed, theroot cause of the politics of difference movement is the fiction of a neutral liberal individual.However, the arguments put forward by liberal virtue theorists concerning the need for a publicdiscourse are compelling and would stimulate a constructive environment for real cross-groupdialogue and empathy. Unfortunately, liberal virtue theory is often seen by supporters ofdifferentiated citizenship as a mask for the dominant class. It is understandable that liberal virtuetheory may seem like hollow rhetoric to historically oppressed groups, for oppressed groups canargue that discussion has not improved their position. However, a central problem with thepolitics of difference discourse is that many of the underlying criticisms of liberal citizenshiprelate to larger issues, including the structure of the capitalist economy and the dynamics ofmajority preferences in democratic regimes. Moreover, if no amount of empathy can make upfor lack of experience between separate groups, the goals of fraternity, cross-group dialogue andthe search for the public good are jeopardized. It therefore appears that the arguments in favour117of a politics of difference for oppressed social and cultural groups should be rejected, not onthe grounds that these groups do not exist or that they do not speak in “different voices” butbecause it would undermine the democratic dialogue and test the fragile ties which bond citizensto one another. A further reason to reject a politics of difference or radical cultural pluralismis that it would limit the autonomy of individual members of groups who want to be judged bytheir actions and words rather than their ethnicity, culture or gender.It is clear that liberal states are not neutral and liberal democratic societies express thepreferences of the majority. Yet these majority preferences may be tempered with importantsafeguards for individuals, including their freedom to practice the religion, and to associate withthe group of their choice. Liberal states have employed a number of public policies to reduceracism, sexism and prejudice and promote groups that face discrimination. Until racism iseliminated, some groups will seek group based-rights. Liberal states can pursue policies that actto include non-territorial groups without granting group rights and representation. For example,affirmative action programs, literacy programs and sensitivity training for public servants.Furthermore, non-territorial groups who are oppressed can achieve substantive equality withoutpromoting the incommensurability of groups and identity absolutism. Public policy and politicalparties are responsive to interest group pressure and groups that are not “national minorities”must work through the common democratic process available to all citizens. Non-territorialgroups can substantially correct liberal state’s bias by continuing to challenge majorityassumptions.118This is not to say that a homogenous conception of citizenship would be acceptable inCanada as it is in France or the United States. The most visible source of Canada’s troubledconception of citizenship, in which also lies a host of original solutions for the future, isfederalism. Federalism was originally instituted in Canada largely to accommodate the Frenchspeaking majority in Lower Canada and was a compact between French and English speakingCanadians. However, Canada no longer fits this dualistic mould. Multiculturalism and Charterpatriotism have replaced Anglo-conformity as the defining feature of ROC while the legitimateclaims of status Indians and the Québécois for special consideration are viewed withapprehension by English Canada because of ROC’s commitment to the supremacy of individualrights and the equality of provinces. The response to the question we posed at the beginningof this thesis; whether or not the Canadian federal spirit that historically promoted compromiseand accommodation can further accept and affirm the deep sociological differences in Canadiansociety, will depend on whether or not the status Indian and the Québécois on the one hand andprovincial political elites, wary of differential citizenship, on the other, can moderate theirpositions.For aboriginal communities in Canada, separation is not an option. However, there is agrowing consensus among both English and French Canadian elites that aboriginal peoples aredeserving of increased powers of self-government. This consensus can be reconciled within theliberal tradition, not because cultural membership is necessary for political autonomy, butbecause of liberal notions of doctrinal nationalism, international law regarding self-determiningpeoples and liberal theories of property. Aboriginal communities in Canada are geographically119dispersed, heterogenous in language, culture, values, economic resources and the majority arepenetrated by liberal values and require continued fiscal transfers from the federal government.In light of these realities, it is necessary for Indians and non-aboriginals to work together.A constitutional amendment to entrench an aboriginal order of government as foreseenby the Charlottetown Accord could act as an efficient means to grant aboriginals substantialautonomy and resolve disputes between self-governing aboriginal communities and Canadiangovernments. However, fundamental human rights protections in the Charter should apply toself-governing aboriginal communities until one or several native charters that adequatelyprotects native human rights are adopted.On the other hand, if ROC will not accept some form of recognition of Quebec as adistinct society within Canada, the alternatives for Quebecers are clear: they can either seekadditional powers within Canadian federalism or vote to secede. Our discussion concerning thedesire of Quebec to preserve and promote its distinct society in Chapter 4 revealed that thereis a difference between the violation of fundamental human rights and the inability to hangsigns in the language of one’s choice. If ROC refuses an undefined distinct society clause, thesolution may be to promote a defined distinct society clause which clearly sets out which minorindividual rights, such as signage, will be subordinated to the goal of preserving the Frenchspeaking Québécois collectivity. Language is a fundamental human right but its variousmanifestations may not be. Similar provisions can be made for self-governing aboriginalcommunities using section 1 of the Charter as a guide, these distinct societies should be given120minor group right provisions that do not violate fundamental human rights in order to preserveand promote their distinct societies. These minor provisions could be considered reasonablelimitations in free and democratic aboriginal and Québecois distinct societies within Canada.Canadian federalism already accepts that different citizens will have different ways ofrelating to Canada. Furthermore, by affirming the multicultural heritage of Canada, Canada hasalso already accepted a first level of diversity. In Taylor’s opinion, what we need is theacceptance of “second level deep diversity’; whereby, some citizens will view their citizenshipin Canada through their constituent nation be that Mic Mac or Québécois. In Taylor’s words,“the world needs other models to be legitimized in order to allow for more humane and lessconstraining modes of political cohabitation.”264As Kymlicka writes, “in other parts of the worldindividuals are incorporated into the state not universally - where each individual stands in thesame direct relationship to the state but consociationally- where individuals relate to the statethrough membership in a cultural community. Under the consociational model the nature ofrights vary with membership in a cultural community.”265 However, the consociational modelwould not be acceptable to ROC because it implies extensive group rights. Although Resnickshares many of Taylor’s assumptions, he provides a vision that is more compatible withsentiment in ROC. He argues that, “we need to distinguish nationality from citizenship, and ouridentity as English speaking Canadians from our membership in a larger political framework264 Taylor, “Shared and Divergent Values,” 183.265Kymlicka, Liberalism, Community and Culture, 137.121that includes Quebecois and Aboriginal peoples.”266 Canadian federalism can accommodate therecognitions pressures of aboriginal and Québécois national minorities. However for federalismto work in Canada, federal authorities must have the ability to make binding decisions for thepublic good, whether that means pursuing an aboriginal criminal residing in a self-governingaboriginal community or denying a hydro-electric project in the province of Quebec becauseof its environmental side effects. Aboriginal communities and the province of Quebec shouldbe recognized as distinct societies in Canada. However, any new constitutional accommodationmust also recognize that a precondition of federal citizenship is that all citizens whethermembers of self-governing aboriginal communities or citizens residing in the province ofQuebec must accept decisions of the federal jurisdiction and be able to transcend their personalor national motivations and acknowledge their responsibility to others in the Canadian moralcommunity if they hope to retain the benefits that our community provides all of its citizens.266 Resnick, Phil, Thinking English Canada (Toronto: Stoddart, 1994), xi.122Selected BibliographyAjzenstat, Janet, The Political Thought of Lord Durham (Montreal: McGill-Queens UniversityPress, 1988)Ajzenstat, Janet, “Liberalism and Assimilation: Lord Durham Reconsidered” in Stephen Brooksed., Political Thought in Canada (Toronto: Irwin Publishing, 1984)Berlin, Isaiah, Four Essays on Liberty (Oxford: Oxford University Press, 1969)Berlin, Isaiah, Vico and Herder: Two Studies in the History of Ideas (London: Hogarth, 1976)Bear, Boldt, Long, Pathways to Self-Determination (Toronto: University of Toronto Press: 1984)Blais, Andre, Gidengil, Elisabeth, eds., Making Representative Democracy Work Vol. 17(Toronto: Dundurn Press, 1991)Boldt, Menno, Surviving as Indians: The Challenge of Self-Government (Toronto: Universityof Toronto Press, 1993)Borrows, John, “Contemporary Traditional Equality: The Effect of the Charter on First NationPolitics” in University of New Brunswick Law Journal (Vol. 43, 1994)Brady, Alexander, “Quebec and Canadian Confederation,” Canadian Journal ofEconomics andPolitical Science (August, 1959)Breton, Raymond, “From Ethnic to Civic Nationalism in English Canada and Quebec,” Ethnicand Racial Studies (Vol. 11, #1, 1988)Cairns, Alan, “Aboriginal Canadians, Citizenship and the Constitution”Cairns, Alan, “The Fragmentation of Canadian Citizenship” in William Kaplan ed., Belonging123(Montreal: McGill-Queens University Press, 1993)Cairns, Alan, Williams, Cynthia, Constitutionalism, Citizenship and Society in Canada (Toronto:University of Toronto Press, 1985)Cairns, Alan, ‘The Judicial Committee and It’s Critics,” Canadian Journal of Political Science(Vol. 4, 1971)Cairns, Alan, “Ritual, Taboo and Bias in Constitutional Controversies in Canada,” TimlinLecture: University of Saskatchewan (November 13, 1989)Cairns, Alan, “The Governments and Societies of Canadian Federalism,” Canadian Journal ofPolitical Science (Vol. 10, 1977)Citizen’s Plus, Indian Chiefs of Alberta (Edmonton: 1970)Clatsworthy, Stuart, Smith, Anthony, “Population Implications of the 1985 Amendments to theIndian Act”.Gerald Craig, ed., Lord Durham Report (Toronto: McClelland and Stewart, 1963)Danley, John, “Liberalism, Aboriginal Rights and Cultural Minorities,” in Philosophy and PublicAffairs, (Vol. 20 1991)Elshtain, Jean Bethke, Democracy on Trial (Concord: Anansi Press, 1993)Gellner, Ernest, Relativism and the Social Sciences (Cambridge: Cambridge University Press,1985)Gibbens, Roger, Ponting, Rick, “An Assessment of the Probable Impact of Aboriginal SelfGovernment in Canada,” in Alan Cairns, Cynthia Williams, eds., The Politics of Gender,Ethnicity and Language in Canada (Toronto: University of Toronto Press, 1986)124Gibbens, Roger, “Citizenship, Political and Intergovernmental Problems with Indian Self-Government,” in Rick Ponting, ed., Arduous Journey (Toronto: McClelland and Stewart, 1986)Glazer, Nathan, “Individual Rights Against Group Rights,” in E. 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