This is a revised version of a literature review leading to a survey regarding Aboriginal Self-Government submitted for a course about Research Methodologies in the Indigenous Learning Program at Lakehead University in the spring of 2016.

Aboriginal Self-Government

Introduction

The literature review is part of a larger research strategy. Typically, that will take the form of an annotated bibliography leading to the review. I have chosen to write this literature review as the refining process whereby a topic is refined into a question and, finally, into a thesis statement. Given that my chosen topic area is ‘Aboriginal self-government’, this literature review will seek to refine that topic with the goal of moving towards an explicit research question (and sub-set of questions) in its conclusion. In other words, the research question emerges from the literature review rather than pre-defining it.

The goal will be to move through the articles looking for those key points which enable the refining and clarifying of the topic into the questions and thesis statement which I intend to pursue. In what follows, each article is discussed separately, as in an annotated bibliography entry, followed by a discussion or ‘take’ as I have labelled them, which represents the portion of my literature review which attempts to interpret an article’s relationship to the other essays in light of the emergent questions and thesis for the survey to be undertaken.

A number of issues emerged from my literature review of Aboriginal self-government.

The primary issues which emerged were:

• Different models of Aboriginal self-government
• Different packages or allocations of rights across different forms of governance
• Divergent stories of legitimate authority in Canada
• Parallels between Indigenous Nations and ‘la nation canadienne’

The final step of the literature review is to pose the question: are we on the road to reconciliation or the road of irreconcilable conflict?This question emerged out of the apparent evidence of divergence, confusion, paradox and deception, the tradition of “sweet promises”, found in the literature review. I finish the literature review with a few sample questions:

Do new immigrants need to be asked the fundamental question of identity and loyalty?

Which kind of immigrant do you see yourself as? - A colonial immigrant? - A decolonized immigrant?

Which version of Canada do you intend to join and support? - A colonial society? - A treaty federalism?

Do you understand the differences?

The survey is organized into 3 parts.

Part I

The respondents are asked fundamental questions of identity, primarily around Indigenous and Settler expressions of self-identity.

Part II

The respondents are asked questions related to rights packages and their allocation across different forms of governance.

Part III

The respondents are asked questions related to history, story and identity, and legitimacy and claims of sovereignty.

Finally, the respondents are asked if the different claims to sovereignty are reconcilable or not, from the survey respondent’s point of view.

Strictly speaking, as an exploratory project, the survey does not embody a single exclusive thesis, but a series of related questions which need to be articulated and analyzed as a set of interconnected theses.

The idea of developing a single thesis in order to test a theory which the thesis statement could logically falsify based upon data results, is simply too advanced for the context of this research project at this point. We are not entertaining a theory of that kind in this context. Rather we are exploring a set of interconnected questions to see if they reveal points of interest for further research. At best the final question in the survey, regarding reconciling claims of sovereignty, may be construed as a tentative thesis statement. However, at this point, it remains unclear if all the previous questions provide proper logical support for the final question having such thesis status. In other words, this project remains a work in progress.

Four Pathways to Aboriginal Self-Government in Canada

Abele, F., & Prince, M. J. (2006). Four Pathways to Aboriginal Self-Government in Canada. American Review of Canadian Studies, 36(4), 568–595. http://doi.org/10.1080/02722010609481408

This article offers some highly relevant ideas for analytically refining and clarifying the topic of Aboriginal self-government.

The Abele and Prince article primarily outlines four analytically distinct, i.e., mutually exclusive, models of self-government. The four models range from lesser to greater degrees of Aboriginal autonomy, independence and self-determination. The first, the ”mini-municipalities” model, is a cut above the band system of chief and council insofar as municipalities have more policy, programming and taxing tools than bands do under the regime of the Indian Act. The second model, which the authors call “adapted federalism”, has Aboriginal self-government taking the form of new territories or provinces within the existing Canadian federation. The third model, represents a ”third-order” of Aboriginal government within the Canadian Confederation, and is more independent than the first two models while remaining internally related to provinces, territories and federal institutions. Finally, the fourth model, ”nation-to-nation”, envisages a more autonomous model of governance outside, but having integral links with, the Canadian Confederation.

The authors, at the time of publication (almost a decade ago, now), saw widespread support among municipalities, provinces and federal level bureaucrats and politicians for the “mini-municipality’’ model. However, they found no Aboriginal support for this model except as a stepping-stone to more independence from the Indian Act. Regarding “adapted federalism”, the authors see Nunavut as a unique and unlikely to be repeated example. They note that the Inuit of Nunavik, for comparison, appear to be firmly located in Québec. They also note that Saskatchewan is on its way to become a majority Aboriginal province by mid-century. Additionally, they consider the likelihood of a single Aboriginal province representing all Aboriginal Peoples in Canada as a possible example of this model. However, they found no advocates for it.

The authors see the “trilateral federalism”, or third-order of governance, model operating in the Penner Report (early 1980s), the Charlottetown Accord, and the Chrétien government policies of the 1990s. All were attempting to deal with the inherent right to self-government that history, the constitution and court decisions had put in front of them. As the authors see it, what was emerging was a vision of a new division of powers within the Canadian Confederation with the inherent right to Aboriginal self-government expressed as a unique third order structure interacting with municipal, provincial, territorial and federal institutions resulting from negotiations between the various parties. In such a model, Aboriginal legislative power would come through a treaty-reorganization of powers already vested with the current levels of government in the Canadian Confederation. In other words, this appears to be a devolution model of negotiating the internal transfer or redistribution of already distributed powers. As such all the interested parties would likely be at those treaty tables.

In the fourth, “nation-to-nation” model, Aboriginal Peoples remain independent and sovereign, based upon their original, historical sovereignty as Aboriginal nations. Here, a model of “treaty federalism” (Alfred, Henderson, Hueglin) is negotiated between two independent confederations, the Aboriginal Confederacy and the Canadian Confederacy. The basis for this is the fact that Aboriginal Peoples did not participate in the Constitutional negotiations of 1867 and yet those negotiations based themselves, in part, on the Royal Proclamation of 1763 when it came to dealing with “Indians and lands reserved for Indians”. This brings us to some interesting considerations, insofar as the authors note that the two confederations follow a different set of historical and constitutional paths regarding artifacts and documents with which they authorize and legitimize their claims.

Briefly stated here, the Canadian Confederation is based upon the Constitutions of 1982 and 1867, with the Royal Proclamation of 1763 entrenched. On the other hand, the Aboriginal path of legitimacy includes the Kawentah (Two-Row Wampum). We might also add, it may also involve a fundamentally different interpretation of the Treaty of Niagara, 1764, as well. In fact, many different interpretations differentiate the two paths but unfortunately such a discussion exceeds the time frame of this literature review. In any case, the result of this model, is not a central constitution but a negotiated “sovereignty-association” between independent confederacies. One of the interesting bi-products of this line of argument regarding the artifacts of legitimacy, is that, without pursuing the topic in any detail, the authors draw a number of parallels with French Canadians. For example, the Royal Proclamation guaranteed the collective rights of French Canadians regarding language, religion, law and a degree of legislative autonomy.

Refining and Clarifying Our Research Topic: Take 1

In summary, the Abele and Prince discussion raises 3 key themes to consider for our research topic: 1) the analytical breakdown of Aboriginal self-government into four distinct models, 2) the divergent stories of legitimacy based upon different paths of artifacts and documents, and 3) the nature of the relationship between Aboriginal self-government and the historical rights and aspirations of French Canadians as “nations” within and without Canada. If Aboriginal self-government is going to have to be negotiated at some kind of treaty table, then clarifying the who, what, where and when of those negotiations will likely involve each of these 3 key thematic considerations. These 3 themes will organize the structure of my survey.

Aboriginal Self-Government: What does it mean?

Hawkes, D. C. (1985). Aboriginal self-government : what does it mean / David C. Hawkes. –. Kingston, Ont. : Institute of Intergovernmental Relations, Queen’s University, 1985, 1–99.

Whereas the Abele-Prince paper took us back 10 years to 2006, this lengthy article by Hawkes takes us back 30 years to the early 1980s. It is the result of interviews with parties involved in the 1982 constitutional call for discussions regarding the meaning of section 35 rights and in particular the constitutional reform process concerning Aboriginal self-government. The goal of Hawkes’ research effort was to identify different models of self-government and areas of emerging conflict and consensus amongst relevant participants in the section 37 discussions. The methodology was a document analysis of verbatim transcripts, from previous First Ministers Conferences and various reports, which were used to build profiles of each party to the discussion (Aboriginal and governmental), and then those profiles were checked through interviews. A methodology perhaps relevant to our own.

Hawkes begins by asking who section 35 rights apply to (Aboriginal, Indian, Inuit, Métis) and what rights accrue to aboriginality? He identifies a long list of potential rights: land, resources and environment; collective self-determination or self-government; citizenship in aboriginal nations or communities; economic development, employment & training; hunting, trapping, fishing, harvesting, gathering; customary law and enforcement; language, culture, religion; fiscal relations and arrangements; education; health & social services.

From the standpoint of understanding section 35 rights, Aboriginal participants generally saw a “full box” without need of detailed identification, others saw a more limited list which needed to be identified, while others saw an “empty box” requiring negotiations to put anything into it. Typically governments recognized the legal status quo of Canadian federalism. Section 37, the call for discussions, was seen by most as an opportunity to identify rights. It is precisely within this section 37 process that Hawkes’ research is undertaken.

Hawkes then goes on to discuss the relationship between aboriginal rights and title in terms of use and occupancy, collective ownership, and European versus Indigenous notions of relationships to traditional lands. Some participants argued that Aboriginal rights were extinguished by treaties, as was Aboriginal title. In the absence of conquest, the Canadian experience, such issues become a matter of treaty interpretation, legal adjudication and negotiation.

At this point, not unlike Abele and Prince, Hawkes draws parallels with the experience of French Canadians regarding collective or ethnic rights. Some argued that collective rights are inconsistent with the principles of liberal democracy, yet in Canada collective rights coexist in an effort to balance individualism and pluralism, majoritarian and minority rights, with constitutional protection. Aboriginal participants generally argued against interpretations of extinguishment, whereas governments viewed treaties as extinguishing Aboriginal title. The right of self-government was seen by Aboriginals as evolving from original Aboriginal governance and self-determination which remain un-extinguished.

Many Aboriginal Peoples believed that in order to survive as distinct nations a land base and self-government are required based upon the principle of collective self-determination. All Aboriginal participants saw self-government as a legitimate objective. Six governments agreed, while six supported more internal Aboriginal authority, but not necessarily self-government. Hawkes notes that all made a point of rejecting full independence or sovereignty for Aboriginal Peoples. All Aboriginal participants viewed self-government as an inherent right, while none sought sovereignty outside the Canadian political system.

Hawkes develops a 3-dimensional analytical scheme based upon what he sees to be the 3 key properties of self-government. 1) membership: public or ethnic; 2) scope: local, regional or national; and 3) powers: a short to long list. All proposals came from Aboriginal participants, none from governments. All proposals assumed a land base. Regarding the powers to be exercised, Hawkes breaks out the following sub-properties, whether the Aboriginal governments are autonomous, semi-autonomous or dependent in relation to Canadian governments, and whether the powers exercised are legislative, administrative or some combination of both. Hawkes generates a 3-dimensional cube of possibilities, but by a process of eliminating what he takes to be illogical or impractical, he considers six significant results more carefully: none national, three regional and three local models.

Hawkes largely dismisses any serious discussion of a national level of Aboriginal self-government. He only sees an ethnic option as possible here and only with limited administrative functions, which he sees as failing to qualify as self-government. He dismisses any idea of a public (territorial) national government in addition to the Canadian federal government as logically non-sensical. However, he acknowledges that the federal government might be required constitutionally to double as an Aboriginal government. However, he does not discuss how that doubling would differ from or relate to the non-sensical form of Aboriginal public national government.

He sees three regional models: two public (one autonomous or semi-autonomous, another delegated) and one ethnic model. He sees the Nisga’a and Nunavut proposals (remember he is writing in the early 1980s) as examples of regional models with degrees of autonomy or delegated dependence as ethnic or public governments. He sees proposals around Kativik in Québec and NAN in northern Ontario as examples of more dependent regional governments.

Community or local level models of self-government, exhibit a range of autonomy and dependence regarding legislative or administrative powers. However, Hawkes sees autonomous or semi-autonomous local governments of a public (non-ethnic) type as unlikely. The variations here are whether the local ethnic self-government is autonomous, semi-autonomous or entirely delegated in its legislative and administrative capacities.

All models involve variations of funding (transfers, equalization, conditional grants, shared-costing, taxation) and variations on which levels of government are involved. Hawkes acknowledges that some models could only develop after a lengthy evolutionary process.

He briefly mentions proposals which do not assume a land base, ex., representation in the Canadian houses of government or special advisory bodies. Generally such proposals concern urban or off-reserve Aboriginal Peoples.66

Next, Hawkes explores the possible means by which Aboriginal self-government might be achieved: 1) constitutional entrenchment; 2) treaties; 3) recognition of powers; 4) legislation; 5) intergovernmental agreements; and 6) administrative arrangements. Constitutional entrenchment could lead to a third order of government, treaties could take the form of modern land claims settlements or renegotiating existing treaties. All other methods would require federal and provincial levels of participation and agreement.

Finally, Hawkes discusses the upcoming 1985 First Ministers Conference on section 35 rights and the paradox he saw that there appeared to be a consensus to avoid failure, but no one seemed to know what section 35 rights might include and few governments were actively working on it. The result? Hawkes was not optimistic regarding the outcome of the negotiations.

In hindsight, we would have to acknowledge his foresight. However, Hawkes closes by noting that the drive by Aboriginal Peoples for self-government will not be snuffed out and failure would only strengthen their resolve. Given the recent 2015 election of a Liberal government claiming to realize a mandate of reconciliation by 2017, Hawkes analysis seems to have caught a glimpse of the many years between then and now.

Refining and Clarifying Our Research Topic: Take 2

It is interesting to compare Hawkes’ views and those of Abele and Prince and ponder the twenty years in between. Abele and Prince give much more attention to the evolutionary significance of the national-level (nation-to-nation) model than Hawkes did. Clearly the discussions about packaging up rights and allocating them across forms of governance remain. Post–1985, post-Meech and Charlottetown, post-Oka and RCAP, Abele and Prince operate in a somewhat different universe of discourse, nevertheless the negotiation of rights continues. Hawkes’ account seems to occur in a more timid environment.Nevertheless, he does issue a cautionary warning about the price of failure.

Finally, again, it is interesting that both articles recognize the significance of the parallels between French Canadian collective rights and those of Aboriginal Peoples. However, other than the James Bay Agreement, there seems little political activity around this parallel.

In summary, at this point, Hawkes has added to our research project some key considerations: 1) a substantial list of rights to clarify; 2) interpreting section 35 inherent rights and their historical basis regarding treaties, extinguishment, a land base and self-government; 3) an alternative modelling of self-government in terms of citizenship, scope and powers, and 4) parallels with French Canadian collective rights in the Canadian context.

Combined with Abele and Prince, we might summarize the results around the following issues: 1) interpretations of rights, 2) competing historical artifacts or stories of legitimacy, 3) alternative analytical models of self-government, and 4) parallels with French Canadian collective rights and even “sovereignty-association”.

What should we make however of the recurring divergence in interpretation of rights, in competing stories of legitimacy, in models of self-government which favour different parties, and in the relationship to the divergence French Canadians experience in the Confederation system? Hawkes plays a role in structuring my survey insofar as the survey deals with packages of rights, the scope of self-government, and relationships between French and Indigenous rights and aspirations.

14 Aboriginal Constitutions & Constitutional Design

Alcantara, C., & Whitfield, G. (2010). Aboriginal Self-Government through Constitutional Design: A Survey of Fourteen Aboriginal Constitutions in Canada. Journal Of Canadian Studies, 44(2), 122–145.

Alcantara and Whitfield analyze 14 Aboriginal constitutions to determine how they attempt to reconcile Indigenous legal traditions and practices with the existing Canadian constitutional order. While at the same time, recognizing that those Indigenous legal traditions are engaged in an active process of revitalization and decolonization from settler societies and the formalized colonialism of that same Canadian constitutional order.

They begin by discussing the typical characteristics of modern liberal democratic constitutions, noting that all modern democratic constitutions contain the following: (Elster, Offe, Preuss) 1) individual & collective rights, 2) requirements & duties of citizenship, 3) the nature of democracy & resulting structure of government, 4) the role of constitutional courts, and 5) amending formulae. The authors then go on to analyze 14 Aboriginal constitutions.

However, the authors will note at the end of the article, that all 14 groups considered had all signed comprehensive land-claims agreements or self-government agreements with the Crown, thus, their constitutions may conceal a bias with respect to other Aboriginal nations and communities who had not made such agreements. Nevertheless, they go on to make the following observations.

Regarding individual and communal rights, a large majority included protection of political, legal, and property rights and rights of conscience. Seven included clauses regarding equal access or provision of public services and health care, while others included such rights as basic education, water and food.

Many of the constitutions included provisions not typically found in non-Aboriginal modern constitutions, for example, guarantees of participation in cultural life and practices, speaking traditional languages, a healthy environment, sound economic foundations, and a collective right to traditional territories. Some framed self-determination and territorial control as rights in response to external threats, namely Canadian governments.

The authors note that sovereign states do not usually cast self-determination and territorial control as constitutional rights. Yet, given the history of colonialism in Canada, it is perhaps not that difficult to understand. So one might draw the observation that taking the modern, liberal democratic constitutions as the baseline in the way the authors do may not capture the experience of colonialism which the Aboriginal constitutions do.

All 14 Aboriginal constitutions set citizenship requirements and duties as central. Responsibilities were fairly consistent across the Aboriginal constitutions, some emphasized the care and nurturing of children and honouring traditional practices and culture.

Regarding democracy and government structures, the authors found a tendency to focus on duties and the relationship of government to citizens, include external relationships to the Canadian state. Some based government on the traditional clan system, some protected Aboriginal and treaty rights, including language, culture, land and resources, as well as, rights of self-government. Some declared that there had been no cessation or surrender of Aboriginal title and rights over traditional territories. Some declared an inherent right to self-government.

Generally, there was an emphasis on consensus-making from the whole community not simply by elected representatives, which the authors saw as distinct from Western-style constitutions. Some had traditional chiefs, most mandated a special role for elders councils. Typically the constitutions included general assemblies and direct democracy.

Some assemblies required supermajorities, some explicitly avoided supermajorities in favour of an even broader consensus. As the authors note, this does not appear to be a result of the small size of the citizenship populations, but rather was based upon a different conception of the nature of democracy: the desire to institutionalize community consensus versus the Western rule of 50 percent plus 1.

Regarding federalism, many communities traditionally governed themselves within federal structures. Some did not mandate geographical representation but rather a non-territorial confederal system rooted in clans or families. Overall the authors found an exceptional diversity of visions of democracy across the 14 Aboriginal constitutions.

With regard to the role of constitutional courts, half made no mention of the judiciary. Those that did emphasized dispute resolution and judicial councils, including elders, to review constitutional issues.

Finally, with regard to rules of constitutional amendments, amendments were initiated by citizen petitions and passed by referendums, or general or special assemblies.

In summary, the authors found that modern Aboriginal constitutions recognize local indigenous traditions, customs, value, and structures, to varying degrees. Almost all encouraged consensus-making, but none required it. All had different decision-making formulas where citizenship involvement varied. The 14 constitutions also enshrined different sets of individual and collective rights. And only one, the Nisga’a, recognized the traditional role of Aboriginal women leaders. All used words and concepts from traditional languages and cultures to varying degrees.

Because all 14 constitutions function at the intersection of colonialism and decolonization, the authors observed self-government was often about striking the right balance between Western and Indigenous political traditions. The authors draw the conclusion that the evidence would seem to indicate that the cohabitation of Western and Indigenous constitutional orders and legal traditions is possible.

However, it is at this point, the authors note the important caveat that generalizing from these 14 Aboriginal constitutions may be limited by the fact that the relevant groups had all signed comprehensive land claims or self-government agreements with the Crown. This process presumably provided the documentation materials upon which the study was based. As a result, the constitutions studied may simply reflect a predisposition to sign such agreements, in other words, they may reflect bargaining positions at those negotiation tables.140

In which case, how should we interpret the caveat that these 14 nations signed agreements. Are these 14 more reconciled to the Canadian framework than those who have not signed agreements? The authors don’t elaborate on this point.

Refining and Clarifying Our Research Topic: Take 3

So what can we draw from this discussion? The authors provide some useful tools for thinking about Aboriginal self-government in the Canadian context. However, their focus on the reconciliation of legal traditions in constitutions may offer only limited insight into the questions of rights and self-government which we are exploring in this literature review.

Specifically, individual and collective rights, citizenship, democracy and governance, courts and amending formulae, all speak to the legal focus of their research, when self-government as self-determination, may speak to something wider and larger. Has their focus suppressed differences due to a bias towards reconciliation?

They noted the emphasis of the Aboriginal constitutions went beyond public services and health care, basic education, water and food, to include cultural life and practices, traditional languages, the environment, economic and traditional territories, and self-determination. In effect, these considerations highlight what Aboriginal self-government might put in play within the Canadian political context, as opposed to the traditional institutions and practices of European-based societies alone. We might ask, are these aspirational documents or realization documents?

Given the emphasis on consensus-making, traditional ceremonial and customary practices, elders councils and direct democracy, supermajorities, non-territorial confederal systems based on families or clan systems, amendments by petition, assemblies and referendums, how viable are these differences to endure within the Canadian political environment?

One item which stands out, though not emphasized by the authors, is that all the Aboriginal constitutions used words and concepts from their traditional languages and cultures. Understanding this need to speak in a traditional language, and not in the language of the Crown, may suggest an important theme of consideration of self-government as a realization of self-determination. Who is speaking? What is their story? The appropriate answers may require a language other than that of the Crown, especially, when, as noted, the Aboriginal constitutions express an explicit relationship to colonialism, which the typical modern, liberal democratic constitution does not. Especially if this colonial relationship is incorporated into these constitutions as an external threat.

When we come to finalize our research focus, we will have a substantial list of criteria to consider: rights, institutions, and practices. Which package of rights, institutions and practices will analytically and practically qualify as logically intelligible and practically desirable for Aboriginal and non-Aboriginal peoples in Canada? Is self-government based upon a narrow legal concept or a larger understanding of individual and collective self-determination? Is this a one-off treaty negotiation? Or is it something more evolutionary? And are we on the path to the reconciliation of the differences identified above or do they lead to a more substantial fork in the road?

The detailed concerns of these authors do not show up explicitly in my survey but helped form the context for its more general questions and also lays something of the groundwork for any follow-up surveys which might explore some of the details the authors consider here.

Aboriginal Self-Government: Survey of Public Opinion, 1998

Martin, D., & Adams, C. (2000). Canadian Public Opinion Regarding Aboriginal Self-Government: Diverging Viewpoints as Found in National Survey Results. American Review Of Canadian Studies, 30(1), 79–89.

This article reports the results of a 1998 cross-national survey conducted to explore the extent to which Canadians understand and support Aboriginal self-government. 1 The authors note the shortage of publicly available, quantitatively-based Canadian public opinion research regarding Aboriginal issues.2 I might ask, can we still say the same today?

Their stated aims were to find 1) the degree to which Canadians understood that First Nations’ sovereignty is not limited to local or municipal levels of power; 2) the extent of Canadian support for self-government; 3) the extent to which Canadians feel Aboriginal self-government is linked to cultural autonomy or independence.

Overall, the authors found extensive disagreement within Canadian public opinion regarding understandings of self-government and its importance as a policy issue.

Self-government as a general policy?

About one-third give high support for self-government as a policy priority. Though support is somewhat lower in Western Canada compared to central and eastern Canada. Support for self-government increases with age and education level.

What is self-government?

One quarter believe self-government refers to municipal-level powers. Another quarter indicate it means provincial-type powers. Just over one-third said it refers to national or federal-level powers. Six percent believed it involved something else and eight percent did not respond.

By region, British Columbians were more likely to view self-government as municipal (34%), while the prairie province respondents saw self-government as something more than local or municipal.

By age and gender, younger respondents tended to view self-government powers as municipal, while “baby boomers” (35–54) and seniors (over 55) had a slightly lower tendency to do so. Men were more likely than women to see self-government as municipal.

Understanding self-government?

The authors found little evidence to show a relationship between understandings of self-government and income and education.

Should aboriginal Canadians adapt to the Canadian “mainstream” rather than self-government?

Fifty-five percent viewed the mainstream alternative as beneficial to Aboriginal Peoples. Whereas, a minority, 40 percent, believed that working toward self-government would be the more beneficial for Aboriginal Canadians. British Columbia, Alberta, and Quebec were the most likely to believe that Aboriginal people would be better off joining mainstream society, and were the most reluctant to choose the self-government option when presented as an alternative.

The authors concluded by noting that about one-third of Canadians believed that Aboriginal self-government should be a government priority, while both the recent, at that time, Citizens’ Forum on Canada’s Future and RCAP reported that “there is a consensus on this topic”. The authors suggest that the data indicates there is no consensus among Canadians as to how self-government powers are to be understood.

The authors note that it is interesting that almost one-quarter of those who said they support self-government as a priority issue, also gave high support for the notion that Aboriginal people should adapt to mainstream society. A curious confusion on the surface.

Furthermore, the authors say that many Canadians do not distinguish between “self-government” and cultural “adaptation”, perhaps indicating that some may feel that self-government is a means for assimilating First Nations people. Is this a confusion or an insight into the underlying intention of government policy?

Refining and Clarifying Our Research Topic: Take 4

This study offers an interesting fit with my research project located as it is on our timeline since the 1980s in the year 1998. Do the results represent a momentary collective state of confusion in Canadian colonial society about Aboriginal self-government or a definitive set of durable beliefs? Of course, without more time-series data, we can only speculate.

The public seems to be just as confused about Aboriginal self-government, as are the politicians, bureaucrats and intellectuals, given the other articles we have been considering.

Given the current, newly minted (Oct. 19, 2015) government’s stated objective of mandating reconciliation by July 1, 2017, it would be interesting to take snapshots of public opinion now, in January 2016, and in July 2017 to see if the governments communication and policy agendas, move public opinion in one direction or another on the relevant issues.

The issues, as reflected by this study, being: 1) the policy priority status of Aboriginal self-government; 2) what self-government means: packages of rights and scope of governance; 3) degree of independence versus assimilation of Aboriginal societies to “mainstream” Canadian society.

Is self-government a pathway to independence or just another road to assimilation and colonization?

There seems to be a set of divergences, confusions, and paradoxes emerging in our literature review. To the divergences and confusions discussed above we can now add the confusion, paradox or insight perhaps among some portion of the public have that self-government is the road to mainstream assimilation. If autonomy is just another word for assimilation, how would this work in the colonial mind? And what would this all mean for the road to reconciliation?

Emancipation as Oppression: Marshall and Self-Government

Bedford, D. (2010). Emancipation as Oppression: The Marshall Decision and Self-Government. Journal Of Canadian Studies/Revue D’études Canadiennes, (1), 206–220.

Bedford’s article begins with the 1993 case of Donald Marshall Jr., charged with fishing without a license. Marshall argued that, as a Mi’kmaq, he was exercising his treaty rights. The court agreed he had the right to hunt, fish and gather, and to sell products to make a “moderate livelihood”. However, Aboriginal People would not own all the resources, and could only access them subject to limitations. Nevertheless such legal developments raised expectations, according to Bedford, about the existence and realization of a treaty right to commercial resource gathering.

Bedford sees the fishing agreements between Fisheries and Oceans Canada and reserve communities as merely trading jobs for weaker traditional political and economic practices, by taking the direct access to resources provided by Marshall (and consistent with traditional economic practices) and turning them into a system of limited and regulated access, managed by the chief and council, ultimately on behalf of the minister of the Crown responsible for implementing the Indian Act. Bedford says this solution fit the federal policy of self-government as devolution to chief and council combined with limiting resource access and ultimately negotiating the extinguishment of rights. A policy typically justified as necessary to achieve clarity and certainty of ‘ownership’ and equality of treatment between Aboriginal and non-Aboriginal fishers.

Critics, Bedford points out, see the Indian Act’s political structure of chief and council as incommensurate with tradition placing the discussion of self-government within a broader discussion of tradition and modernity. Critics, like Alfred, favour self-determination and oppose federal self-government models as being underfunded, involving non-Aboriginal forms of governance and an insufficient devolution of power that ultimately fails or refuses to recognize Aboriginal sovereignty.

Bedford sees Aboriginal rights being forced into conformity with modern economic and political life because these rights are not to be exercised traditionally or Aboriginally. Such state policies of making Aboriginal persons ‘equal’ with Canadians is consistent with the assimilationist policy of the 1969 White Paper, the “Citizens Plus” (Cairns) interpretation, or more recent political policies of conservative politicians and pundits. Thus the goal to extinguish Aboriginal economic or political culture remains.

To put this in a broader historical context, Bedford summarizes the Canadian self-image as more than just non-American, the Canadian story includes the essential events of the railroad, the RCMP, the creation of a national and capitalist economy, settling the West, and displacing Aboriginal nations and their traditional forms of life with modern economic and political institutions. Bedford uses the term “economicide” to describe this policy of extermination of an economic culture. This historical process of dispossession and displacement of traditional economies, occurred all over the world, displacing direct access to resources in favour of modern economies where everything is owned, regulated and fenced off.

Bedford notes it is more difficult to determine “what living well” (bimaadiziiwin?) means for Aboriginal peoples in Canada today. Nevertheless, he says, many have the goal of balancing the traditional and the modern. In this context, he goes on to note a number of characteristics of traditional societies and question whether Indian Act compliant self-government achieves this balance.

He argues that traditional food sharing created closer social bonds, so he welcomes co-operative enterprises with more equitably distribution systems, greater local autonomy, and without hierarchies of ownership. Bedford’s view of traditional ways emphasizes a political life without enforced hierarchies, domination and obedience, and with an emphasis on a politics of consensus. He points out the profound irony of the self-government policy, where the conflict between tradition and modernity is being resolved, in the name of autonomy and cultural integrity, but in fact in a way that favours modern, “White”, forms of life. He states, “people have been turned into tools of their own oppression.” Rather than balancing the traditional and the modern, the traditional continues to erode in favour of Western-style economies and political structures on reserves. By favouring a small management group on the reserves with money and power, the federal government has been able to maintain the status quo at a low cost.

This system, Bedford states, is bound to create what Habermas called a “legitimation crisis” (1973). An observation that takes us to the heart of the issue of the legitimacy of the colonial and de-colonization stories. So, instead of healing and reviving traditional economic and political forms, the policy of eliminating Aboriginality, of suppressing traditional culture and life in favour of modernity and Whiteness, continues in Bedford’s estimation.

Refining and Clarifying Our Research Topic: Take 5

So how does the Bedford discussion relate to our survey of literature on self-government? How do we get to balance tradition and modernity?

First, self-government, as the federal government policy outlines, is a creature of colonialism. Under the name of political, economic and cultural autonomy, reserves are managed to contain discontent, while managing natural resources on behalf of the colonial political economy.

Bedford, via Alfred and others, has provided us with the outlines of a seemingly important distinction: self-government versus self-determination. Secondly, he has pointed out how self-government is sold as greater autonomy when in fact it is entirely consistent with the colonial policies of 1867 to manage “Indians and the lands reserved for Indians” on behalf of the colonial political economy with the goal of extinguishing rights while claiming to protect them. What is typically being protected is the colonial system.

Bedford has also highlighted the need for (without necessarily providing the methodology for it) a political and economic analysis which takes into account the systematic forms of deception which colonialism deploys to maintain itself. Modern marketing has curiously perhaps enabled both the deception and the revelation of such deceptions. The political comedy of Jon Stewart and others, comes to mind, as deploying techniques to unmask the techniques of political manipulation in contemporary media.

Bedford has placed the self-government debate inside the larger one of tradition versus modernity. ‘Economicide’ is an attack on traditional life and direct relations with the natural world through mediation by economic property laws which enforce hierarchies of domination and obedience. The politics of consensus emerges as the opponent of such enforced hierarchies.

I have added the world ‘bimaadiziiwin’ to acknowledge the importance of language in this debate, in response to concerns about the meaning of self-government coming from the other essays considered. Bedford gives us even more key characteristics of political, social and economic culture to consider when evaluating “self-government”: sharing, cooperation, consensus, autonomy versus hierarchies, domination, and obedience.

In addition, Bedford has reinforced the importance of the back story of legitimacy which validates the idea of self-government versus that of self-determination. This ties in to the legacy of artifacts and document we spoke of earlier. He also locates the Canadian story in the larger story of global history and suggests their interconnections.

Finally, the allusion to Habermas’ “legitimation crisis”, introduces the nexus of crises Habermas attempted to articulate which ultimately led Habermas to focus on communication theory and how legitimacy was the basis of social and political stability. A failure of legitimacy by consent, needs to be replaced with legitimacy by force, and all bets are off for legitimacy when ‘the first casualty of war is the truth’. So to the discussion of divergence, confusion and paradox we, perhaps, need to explicitly add consideration of deceit, deception and fraud.

My survey only hints at some of the issues here. These topics would need a more sharply focused survey dealing with these issues in more detail.

Refining and Clarifying Our Research Topic: Final Take

So to summarize our key points.

From Abele and Prince, 1) four models of self-government, 2) divergent stories of legitimacy, and 3) parallels with French Canadian collective rights.

From Hawkes, 1) a long list of possible Section 35 rights, 2) competing stories regarding the historical basis of treaties, extinguishment, land bases and self-government, 3) an alternative models of self-government in terms of citizenship, scope and powers, and again 4) parallels with French Canadian collective rights, and even “sovereignty-association”.

At this point the question emerges, are we on the path to reconciliation or irreconcilable conflict? Are the divergent histories of legitimacy, the divergent models of desirable relations, the confusion and paradoxes operating at both the elite institutional level and public level about basic concepts and desirable outcomes, indicative of an irreconcilable divide or a recognition of the appropriate terms of reconciliation?

Alcantara and Whitfield draw the conclusion from their analysis of 14 Aboriginal constitutions that cohabitation of Indigenous and Western legal traditions is possible by virtue of the fact that these constitutions sought to strike a balance between Western and Indigenous traditions. However, their article also suggests caution regarding this conclusion. The constitutions all had features which were meant to protect them from colonialism, suggesting that the success of those constitutions and the agreements with the Crown to which they were related, were dependent upon the successful decolonization of that relationship. Their own analysis revealed significant differences regarding the protection of collective rights versus the protection of individual rights. How will that balance play out legally, politically, economically and culturally in the future?

The national public opinion survey work of Martin and Adams may also provide evidence for caution regarding Alcantara and Whitfield’s conclusion about cohabitation. More than anything their survey seems to reveal striking differences if not outright confusion about what self-government means and what the support levels for those municipal, regional or national models of self-government signify. Did the results reveal support for self-government or support for models of assimilative adaptation of Indigenous Peoples to the dominant colonial society?

Once again we seem left with divergent opinions and values, confusing and paradoxical attitudes and ideas. Is this reflective of a recipe for balance, cohabitation and reconciliation, or are these all signs of a pending unresolved conflict to which no one is really giving their full attention, as Hawkes noted back in the early 80s?

Finally, we considered Bedford’s account of the Marshall decision and the subsequent federal government response of self-government as a devolution of authority to chief and council as part of, what Bedford sees as, the continuation of the colonial project to limit and ultimately negotiate the extinguishment of Aboriginal rights. Specifically self-government is opposed by the concept of self-determination, the former designed to erode, while the latter seeks to empower, Aboriginal governance and culture.

Bedford also widens our viewpoint by placing the discussion of self-government in a global conflict between traditional Indigenous societies with direct relationships with nature (the Land) and modern economic societies seeking to interdict that relationship with property laws and physical barriers which dispossess and displace in the name of clarity, certainty and equality.

We are presented with a conflict between “economicide” and living well by traditional standards (bimaadiziiwin). Sharing and cooperative relations are presented as in conflict with enforced hierarchies of domination. Again we are presented with a paradox, where self-government is presented, superficially, as the tool for autonomy and preservation, when in fact it is a tool for self-oppression. What appears as balance is really a disguised tool intended to erode tradition.

Bedford’s conclusion is very different than the optimism of Alcantara and Whitfield about balance, cohabitation and reconciliation. Bedford suggests this tension of confusion, difference and paradox conceals a “legitimation crisis” (Habermas). If deception is part of the toolkit of colonial reproduction how does this affect our interpretation of balance, cohabitation, reconciliation, of divergence, confusion and paradox.

If a civilization promotes fraudulent representations of reality as an expression of cunning and success, at what point does the balanced correlation of truth and reality lead to a rupture with reality itself? Is this a fork in the road where illusion and deception can no longer protect a society from the forces of irreconcilable difference with reality?

At what point do the divergent paths of legitimacy 1) reconcile themselves, or 2) erupt in civil war, or 3) is this an endless dance of confusion and paradox, divergence and deception, of sweet promises? Is this a relentless conflict between tradition and modernity which no one wins, or loses?

From Topic to Question: Which Road are we on, the Road to Reconciliation or the Road to Civil War?

Are we going to have the reconciliation the new Crown government has mandated for July 1, 2017 or on that date will we have simply compiled more evidence of divergence, confusion, paradox and deception? The ongoing toolkit of colonialism?

In this draft of the literature review, we have run out of time to delineate a set of questions which flow from our primary question, however, here is a sample:

Do new immigrants need to be asked the fundamental question of identity and loyalty?

Which kind of immigrant do you see yourself as? - A colonial immigrant? - A decolonized immigrant?

Which version of Canada do you intend to join and support? - A colonial society? - A treaty federalism?

Do you understand the differences?

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Here are 3 links 1) a pdf of the survey, 2) a pdf of the findings, and 3) a web page sample of the survey. Note the sample size was very small (37 respondents) thus the margin of error is very large (10–20% based upon the desired degree of confidence of 80–99%, see the SurveyMonkey calculator: https://www.surveymonkey.com/mp/margin-of-error-calculator/.) It is important to remember this was a student project to learn the basic steps of research and was not a professionally conducted survey with the resources that that would imply to survey hundreds of randomly selected respondents for more reliable results.

1. the survey: Survey.pdf
2. the findings: Findings.pdf
3. the survey (web page - submission closed): Web Survey