Dale A. Turner, Dartmouth College
Guest contributor
This blog post is part of the Federation Equity Issues Portfolio’s ‘Transforming the Academy: Indigenous Education’ series, which will be the focus of the Portfolio’s programming at Congress 2011.
What is the meaning of reconciliation? In this short contribution to the conversations unfolding in Canada, as elsewhere, I will focus on just two ways the term is used in contemporary Aboriginal politics and relations in Canada. Both uses of reconciliation are significant for Aboriginal aspirations for self-government. The Oxford English Dictionary defines reconciliation as follows:
- The action of restoring estranged people or parties to friendship; the result of this; the fact of being reconciled.
- The action or an act of bringing a thing or things to agreement, concord, or harmony; the fact of being made consistent or compatible.
The federal government’s current Truth and Reconciliation Commission (TRC) embraces the first sense of reconciliation, while the second understanding of reconciliation is what lies at the heart of the Supreme Court’s understanding of s. 35(1) of the Constitution Act, 1982. In order for the TRC to genuinely move the relationship between Aboriginal peoples and non-Aboriginal Canadians down a more respectful, just path, its understanding of reconciliation must incorporate the form of reconciliation associated with the hostile politics of interpreting the meaning and content of s. 35(1) of the Constitution.
The federal government presents the TRC’s mandate as a step towards reconciliation: “This is a profound commitment to establishing new relationships embedded in mutual recognition and respect that will forge a brighter future. The truth of our common experiences will help set our spirits free and pave the way to reconciliation.” The TRC’s primary focus is on healing Aboriginal individuals and communities, producing an archive of Aboriginal voices speaking about their residential school experiences, and educating the general Canadian public on the historical injustices perpetrated against Indian school children.
The TRC is an ambitious, important project and its idea of reconciliation as a kind of restorative project continues to shape contemporary Aboriginal politics. But this big picture view of reconciliation does not incorporate the ongoing hostile legal and political dialogues over of the meaning and content of s. 35(1). For an understanding the meaning and content of s. 35(1), we turn to the Van der Peet decision. The Court states that:
…what s. 35(1) does is provide the constitutional framework through which the fact that Aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the Crown. The substantive rights that fall within the provision must be defined in light of this purpose; the Aboriginal rights recognized and affirmed by s. 35(1) must be directed towards reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown.
The assertion of Crown sovereignty is tethered to the idea that the state rightfully embodies the highest form of political sovereignty in Canada. Whatever the meaning of Aboriginal laws and customs, they need to be made “consistent or compatible” with Canadian common law (legitimated by authority of the state). In addition to the superiority of state sovereignty, Canadian common law is rooted in the idea that moral individualism lies at the heart of a liberal democratic society.
The wording of s. 35(1) was the outcome of an intensive consultative process throughout the 1970’s, where, after the publication of the “Statement of the Government of Canada on Indian Policy” (White Paper ) in 1969, Indian leadership made greater political inroads into mainstream Canadian politics. The White Paper was a serious proposal proffered to once and for all solve the “Indian problem” in Canada. The general idea was to dissolve any special form of legal and political recognition that Indians may possess and (forcibly) assimilate them into mainstream Canadian society. The political vision was firmly grounded in a liberal view of justice, one that emphasized the moral priority of the individual situated within a constitutional democracy under the presumed superiority of state sovereignty.
Indian leaders reacted harshly to this Liberal vision of a just Canadian society. A year later, Indian leaders formally rejected the six recommendations of the White Paper by placing before Prime Minister Pierre Trudeau their own response in a paper titled “Citizens Plus ” (otherwise known as the “Red Paper”). Indians countered that the treaties and the treaty relationship between Indian nations and the Crown created moral obligations on the part of both signatories and the state had failed to live up to its side of the bargain.
The White and Red Papers reinvigorated Indian politics and brought the issue of Aboriginal rights into mainstream political debates about constitutional reform in Canada. The state, however, remained committed to a view of Canadian society founded on the discourse of the rights and freedoms of individuals and the unquestioned sanctity of nation state sovereignty. Red Paper liberals also defended individual rights, but within a view of state sovereignty that respected the sanctity of the nation-to-nation political relationship embodied in the treaties.
Section 35(1), created 13 years after the release of the White Paper was intended by many to represent the political fallout of the White and Red Papers. S. 35(1) can be interpreted to respect the integrity of individual rights and protect the Aboriginal demand to respect the sanctity of the treaty relationship. By the time Van der Peet is decided in 1996, though, the Supreme Court had cordoned off the discourse of Aboriginal rights in such a way that Aboriginal rights arose in a narrow context and Crown sovereignty definitively became a non-negotiable in the political relationship.
The form of reconciliation at work in s. 35(1) demands that Aboriginal laws, customs, and practices be reconciled with Crown sovereignty. Aboriginal laws, customs, and practices need to be articulated in the language of the common law, as opposed to Aboriginal peoples looking to their spiritual practices and philosophical systems of thought as the logical sources of their rights. However Aboriginal peoples generate these explanations, and reiterate them in Canadian courts of law, the Supreme Court will temper them with the fact of Crown sovereignty. Aboriginal explanations of their rights must be made “consistent or compatible” with the uncontroversial fact that Crown sovereignty legitimates the state itself.
Aboriginal leaders, and now Aboriginal and non-Aboriginal legal scholars, have resisted this characterization of Aboriginal rights and continue to press for greater recognition of Indigenous nationhood in how we ought to understand the meaning of s. 35(1). Although the Supreme Court has not been flexible about recognizing Indigenous nationhood as a source of Aboriginal rights in Canadian common law, Aboriginal politics remains steeped in the discourse of nationhood.
So, let me return to the current TRC. My concern here is not with the idea whether resolving past historical injustices are a good thing for Aboriginal peoples. I am worried that the TRC’s work will not take advantage (or be able to take advantage) of the government’s goal of reconciliation as a project of “restoring estranged people to friendship” without considering the political dimension of this form of reconciliation.
If part of healing, or renewing, the relationship means reinvigorating the Aboriginal right of self-government, then it follows that the TRC has an obligation to address the constitutional and political obstacles that have historically prevented re-instituting Aboriginal governments in Canada. I am not calling on the TRC to devote its intellectual energy and precious time to hacking out constitutional interpretations of s. 35(1). Rather, I hope that as the Commissioners begin to listen more to what Aboriginal peoples have to say about the past they realize that healing, and laying out a vision for how it is to evolve, is itself an expression of Indigenous nationhood – that is, reconciliation is, by necessity, political.
Dale A. Turner is the author of This is Not a Peace Pipe: Toward a Critical Indigenous Philosophy, and an associate professor of Government and Native American Studies at Dartmouth College in Hanover, New Hampshire.
