You Still Know Nothin’ ‘Bout Me:
Toward Cross-Cultural Theorizing of
Aboriginal Rights
Dwight G. Newman*
the enterprise of a
to frame moral justifications
Moral and political theorists like Will Kymlicka
for
have attempted
Aboriginal rights in ways that fit with the principles of
liberalism. By contrast, the Supreme Court of Canada
has repeatedly invited consideration of “Aboriginal
perspectives” in its case law on Aboriginal rights. How
to approach Aboriginal rights issues is an immensely
the range of identifiable
important question given
cultural gaps between Aboriginal and non-Aboriginal
understandings of relevant matters. The author seeks to
theory of normative
forward
discourse for cross-cultural settings. He engages with
and endeavours to build on Charles Taylor’s account of
“unforced consensus” on human rights issues in order
to develop certain methodological claims concerning
moral theorizing in a cross-cultural setting, attempting
to flesh out an
to draw some further distinctions
approach to cross-cultural moral theory. The author
goes on to argue that moral theorizing in the context of
to live up to
Aboriginal
the
appropriate methodological demands and that
conclusions of this paper have implications for a range
of judicial and policy contexts.
rights issues has failed
les non autochtones quant
l’6cart culturel notable qui s6pare
i
Des th6oriciens de l’6thique et de la Science
Politique, tel Will Kymlicka, ont tent6 de conceptualiser
les justifications morales des droits des peuples
autochtones, de mani&re A ce que ceux-ci soient en
accord avec les principes du lib6ralisme. A l’oppos6, la
Cour Supreme du Canada, dans sa jurisprudence ayant
trait aux droits des peuples autochtones, a, i plusieurs
reprises, exig& d’accorder plus de consid6ration au
point de vue des autochtones. La fagon d’aborder la
question des droits de ces peuples est d’une importance
les
capitale vu
la
autochtones et
comprehension de ces questions significatives. L’auteur
s’investit dans la formulation d’une th6orie du discours
normatif dans un cadre interculturel. L’auteur ancre son
les 6crits de Charles Taylor,
questionnement sur
concemant le ((consensus natureb) sur la question des
droits de l’homme, dans le but de d6velopper et de bAtir
certaines affirmations m6thodologiques quant A la
th6orisation normative dans un contexte interculturel,
s’effor’;ant ainsi de dresser plus de distinctions visant a
0toffer une th6orie de l’Nthique interculturelle. L’auteur
soutient que la th6orisation normative, dans le contexte
des droits des peuples autochtones, a 6chou6e car celle
r6pondre aux exigences
n’a pas pu ad6quatement
les conclusions
m6thodologiques et maintient que
6manant de l’article ont une port6e de grande envergure
autant dans des contextes juridiques que politiques.
. Assistant Professor and Associate Dean, University of Saskatchewan College of Law. B.A.
(Regina), LL.B. (Saskatchewan), B.C.L., M.Phil., D.Phil. (Oxford). I thank the organizers of the “First
Nations, First Thoughts” conference at the University of Edinburgh Centre for Canadian Studies, 5-6
May 2005, at which I presented a previous version of the paper. I thank the following for comments
and discussion related to prior drafts: Ray Cardinal, Jill Chapin, Paul Chartrand, Andr&e Lajoie, Fiona
MacDonald, David Newhouse, Stacey Saufert, Ron Stevenson, and John Whyte. I thank the reviewers
for their insightful comments and for pushing me further. Finally I thank the Social Sciences and
Humanities Research Council of Canada for funding that supported the project from which this article
first grew and Borden Ladner Gervais LLP Canada for funding through its Summer Student Research
Fellowship program, which has supported my ongoing work in this area.
Dwight G Newman 2007
To be cited as: (2007) 52 McGill L.J. 725
Mode de r6f6rence : (2007) 52 R.D. McGill 725
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Introduction
I. Section 35 Case Law and Cross-Cultural Understandings
II. Cross-Cultural Dialogue and “Unforced Consensus”
Ill. Kymlicka, Collective Rights, and Aboriginal Conceptions
IV. Implications
727
731
734
743
752
2007] D.G NEWMAN- CROSS-CULTURAL THEORIZING OFABORIGINAL RIGHTS 727
For better or worse, it is predominantly non-aboriginal judges
and politicians who have the ultimate power to protect and
enforce aboriginal rights, and so it is important to find a
justification of [these rightsi that such people can recognize
and understand.
-Will Kymlickal
Aboriginal rights cannot, however, be defined on the basis of
liberal enlightenment.
the philosophical precepts of the
Although equal in importance and significance to the rights
enshrined in the Charter, aboriginal rights must be viewed
differently from Charter rights because they are rights held
only by aboriginal members of Canadian society. … The task
of this Court is to define aboriginal rights in a manner which
recognizes that aboriginal rights are rights but which does so
without losing sight of the fact that they are rights held by
aboriginal people because they are aboriginal.
-Chief Justice Antonio Lamer2
Introduction
Prominent non-Aboriginal political theorists who have argued for Aboriginal
rights, notably Will Kymlicka, have sometimes suggested that effective advocacy of
Aboriginal rights in courts and other decision-making bodies requires the excision of
certain elements of Aboriginal thinkers’ own conceptions of Aboriginal rights.
Kymlicka’s claim in the epigraph above has been described by one Aboriginal
philosopher as a “brutal reality check” for Canada’s Aboriginal peoples.’ However,
the Supreme Court of Canada has repeatedly purported to be open to “aboriginal
that these perspectives be considered.’
perspectives” and has even mandated
Although Aboriginal perspectives will often arise from Aboriginal traditions or
concepts accepted as fitting a legally pluralistic transsystemia,5 the Court has
‘Liberalism, Community, and Culture (Oxford: Clarendon Press, 1989) at 154 [Kymlicka,
Liberalism].
2 R. v. Van der Peet, [ 1996] 2 S.C.R. 507 at paras. 19-20, 137 D.L.R. (4th) 289 [ Van der Peet cited to
S.C.R.] [emphasis in original].
3 Dale Turner, “Perceiving the World Differently” in Catherine Bell & David Kahane, eds.,
Intercultural Dispute Resolution in Aboriginal Contexts (Vancouver: UBC Press, 2004) 57 at 60.
4 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at para. 112, 153 D.L.R. (4th) 193
[Delgamuukw cited to S.C.R.]; Mitchell v. MN.R., 2001 SCC 33, [2001] 1 S.C.R. 911 at para. 32, 199
D.L.R. (4th) 385 [Mitchell]; Ross River Dena Band v. Canada, 2002 SCC 54, [2002] 2 S.C.R. 816 at
para. 64, 213 D.L.R. (4th) 193 [Ross River]. See also R. v. Marshall, 2005 SCC 43, [2005] 2 S.C.R.
220 at paras. 129-30, 255 D.L.R. (4th) 1 [Marshall]. Mitchell and Marshall both refer to “the
aboriginal perspective” in singular form, a usage that is questioned further below (Mitchell, ibid. at
para. 32; Marshall, ibid. at para. 130).
5 On transsystemia generally, as well as transsystemic education, see Julie B1dard, “Transsystemic
Teaching of Law at McGill: ‘Radical Changes, Old and New Hats”‘ (2001) 27 Queen’s L.J. 237;
Harry Arthurs, “Madly Off in One Direction: McGill’s New Integrated, Polyjural, Transsytemic Law
Programme” (2005) 50 McGill L.J. 707; H. Patrick Glenn, “Doin’ the Transsystemic: Legal Systems
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implicitly opened itself up to moral ideas from different world views. The Court
arguably seems bolder, at least in theory, than many political theorists.6 Witness, for
example, statements like that of Chief Justice Lamer in the epigraph above, in which
he expresses a readiness to see Aboriginal rights defined differently than traditional
liberal rights.7
Although we are beginning to see the formation within Canadian law of a set of
concepts related to Aboriginal rights,8 the ultimate shape of these concepts has been
and will remain highly influenced by political and moral theory. The relevant bodies
of law on Aboriginal rights are so open textured that no judicial body could apply
them and actually reach legal results without applying further legal and moral
principles.9 Section 35 of the Constitution Act, 1982 “affirms existing rights” without
explicit reference to sources for these “existing rights”.’ Section 25 of the Canadian
Charter of Rights and Freedoms,” requiring that Charter rights “not be construed so
as to abrogate or derogate from any aboriginal, treaty or other rights and freedoms
that pertain to the aboriginal peoples of Canada,”‘ 2 presents complex interpretive
puzzles that demand thorough theoretical analysis.13 We could multiply the examples,
and we would amplify the point that these are bodies of law demanding moral theory
for their application. Courts have dealt with that fact by relying heavily on academic
and Legal Traditions” (2005) 50 McGill L.J. 863; Richard Janda, “Toward Cosmopolitan Law” (2005)
50 McGill L.J. 967; Rosalie Jukier, “Where Law and Pedagogy Meet in the Transsystemic Contracts
Classroom” (2005) 50 McGill L.J. 789; Roderick A. Macdonald & Jason MacLean, “No Toilets in
Park” (2005) 50 McGill L.J. 721.
6 This conclusion would arise from the fact that the Court claims to open itself to Aboriginal world
views whereas the theorists under discussion do not make such a claim. The conclusion is merely “in
theory” to the extent that the Court fails to live out its promised openness.
7 Van der Peet, supra note 2 at paras. 19-20.
8 Thomas Isaac sees this area of law as developing within a reasonably consistent principled
framework. See e.g. Thomas Isaac, Aboriginal 7Ttle (Saskatoon: Native Law Centre, 2006). Some
authors, however, have alleged more inconsistency on the part of the Supreme Court. See e.g. Kent
McNeil, “Aboriginal Title and the Supreme Court: What’s Happening?” (2006) 69 Sask. L. Rev. 281.
I argue in Part I, below that there are deeper reasons for instability in this area of the Court’s
jurisprudence.
9 On open-textured language, see H.L.A. Hart, The Concept of Law, 2d ed. (Oxford: Oxford
University Press, 1998) at 128.
‘0 Being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
” Part I of the Constitution Act, 1982, ibid. [Charter].
12 ibid.
13 On the current difficulty of understanding s. 25 without any sufficiently principled framework,
see Jane M. Arbour, “The Protection of Aboriginal Rights Within a Human Rights Regime: In Search
of an Analytical Framework for Section 25 of the Canadian Charter of Rights and Freedoms” (2003)
21 Sup. Ct. L. Rev. 3. For an excellent comment on a recent case interpreting s. 25, see Celeste
Hutchinson, “Case Comment on R. v. Kapp: An Analytical Framework for Section 25 of the Charter”
(2007) 52 McGill L.J. 173.
2007] D.G NEWMAN- CROSS-CULTURAL THEORIZING OFABORIGINAL RIGHTS 729
moral theory literature in cases that require them to interpret section 35 of the
Constitution Act, 1982. ”
This reality raises the question of how moral theorizing should take place in a
the nature of a cross-cultural context affect
cross-cultural context. Does
methodologies for undertaking moral theory analysis in ways that are similar to its
impact on other matters like approaches to dispute resolution?”5 One initial response
might be that moral theorizing, unlike matters dependent on actual types of cultural
behaviour, is immune to cross-cultural factors except insofar as it might make cross-
culturally objective statements about how disputes are to be settled in normatively
acceptable ways. Those maintaining this traditional view might well see any
suggestion to the contrary as the result of an insidious movement of the forces of
multiculturalism into sacrosanct realms.16
In this essay, I draw on and engage with Charles Taylor’s account of “unforced
consensus” on human rights issues”7 to offer a different response, nevertheless
steering clear of the relativism that traditionalists fear. Without making a claim that
the substance of moral theory on matters like Aboriginal rights has any particular
cultural content, I will argue that methodologies for moral theorizing can be affected
by culture and that the failure to account for this reality has the potential to undermine
the ability of theorists to arrive at the best normative accounts. In only this latter
sense-that failure to consider the cultural dimensions of methodology may
undermine the search for best answers-those normative accounts that fail to engage
cross-culturally, in preferring particular culturally affected norms without adequate
justification, may be suspect. They in turn fail to live up to the challenge of offering a
moral theory that can assist areas of the law that must function cross-culturally.
Particular
the corpus of law relating to Canadian
Aboriginal issues-even where less open textured–demand some sort of cross-
legal doctrines within
“14 As one measure, consider that Brian Slattery’s articles have been cited more frequently in post-
1982 constitutional jurisprudence than have Peter Hogg’s articles. See Peter McCormick, “The Judges
and the Journals: Citation of Periodical Literature by the Supreme Court of Canada, 1985-2004”
(2004) 83 Can. Bar Rev. 633 at 653. That statistic, of course, is deceptive since it does not count
citations to books. However, as another measure, consider that more than one quarter of the s. 35 cases
to date invoke theoretical writings, most often by Brian Slattery or Kent McNeil, that usually at least
purport to offer some normative claims.
15 See generally Bell & Kahane, supra note 3.
16 See e.g. Brian Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism
(Cambridge: Polity Press, 2000).
17 “Conditions of an Unforced Consensus on Human Rights” in Joanne R. Bauer & Daniel A. Bell,
eds., The East Asian Challenge for Human Rights (Cambridge: Cambridge University Press, 1999)
124 [Taylor, “Unforced Consensus”]. With one exception that does not even discuss the same issues
(John Borrows, “Constitutional Law From a First Nation Perspective: Self-Government and the Royal
Proclamation” (1994) 28 U.B.C. L. Rev. 1), Taylor’s “unforced consensus” account seems to have
gone largely unnoticed in Canadian legal writing, at least in any explicit and sustained way.
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cultural analysis.’8 We might name, among others, principles of interpretation that
address the meeting of minds between different cultural groups in treaty formation
and the like,’ 9 alterations to rules of evidence to accommodate Aboriginal oral history
materials,2 consultation requirements,”‘ and, generally, the legal principles concerned
with the concept of “reconciliation”.22 We could also point to Chief Justice Lamer’s
call for theories of Aboriginal rights that reconcile liberalism and the other moral
frameworks needed to understand Aboriginal rights.23 Again, the Supreme Court of
Canada is seeking a mode of theorizing that political theorists have generally been
reluctant to provide, though Mark Walters has recently dramatically transformed the
face of Canadian legal theory with his powerful argument that a failure to show
adequate respect for Aboriginal legal perspectives may undermine the conditions for
the system’s legality.24 Although the topic of moral or political theory methodology
might at first glance seem somewhat removed from the legal realm, it actually has
vital implications both for law and for legal legitimacy.
In one sense, this should not be surprising. Brian Slattery’s classic account of
Aboriginal rights as a body of legal doctrine
that defines the constitutional links between the Crown and aboriginal peoples
and regulates the interplay between Canadian systems of law and government
(based on English and French law) and native land rights, customary laws, and
political institutions
25
makes clear the degree to which Aboriginal rights law involves the interaction of
different legal systems. As Nicholas Kasirer has recently reminded us, a legal system
carries with it particular values, systems of thought, and intellectual traditions.26 Any
18 A more general rationale is also possible. Judicial organs actually stand in need of a cross-cultural
theory in disputes involving parties from different cultures because they need a theory that can explain
to both sides of a dispute why one party has won and the other has lost (or some combination thereof
on different issues). On some issues, this need is lessened where the law itself can stand as a cross-
cultural theory for how disputes are to be resolved. But in disputes concerning Aboriginal rights, no
such easy answer presents itself. Part of what is at stake is whose law should apply; in many
Aboriginal rights contexts, the very issue is whether Canadian or Aboriginal sovereignty appropriately
applies, so there must be recourse to some other form of explanation concerning what law applies.
19 See e.g. R. v. Simon, [1985] 2 S.C.R. 387 at 404, 71 N.S.R. (2d) 15, 24 D.L.R. (4th) 390.
20 See Delgamuukw, supra note 4 at para. 87. For a discussion of the practical application of the
principles enunciated
in Delgamuukw, see Dwight G Newman, “Tsilhqot’in Nation v. British
Columbia and Civil Justice: Analyzing the Procedural Interaction of Evidentiary Principles and
Aboriginal Oral History” (2005) 43 Alta. L. Rev. 433.
21 See e.g. Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R.
511 at para. 10, 245 D.L.R. (4th) 33.
22 See e.g. Delgamuukw, supra note 4 at para. 186.
23 Van der Peet, supra note 2 at paras. 19-20.
2
4 Mark D. Walters, “The Morality of Aboriginal Law” (2006) 31 Queen’s L.J. 470.
25 “Understanding Aboriginal Rights” (1987) 66 Can. Bar Rev. 727 at 732 [footnotes omitted].
26 “Bijuralism in Law’s Empire and in Law’s Cosmos” (2002) 52 J. Legal Educ. 29 at 35-37.
2007] D.G NEWMAN- CROSS-CULTURAL THEORIZING OFABORIGINAL RIGHTS 731
understanding of Aboriginal rights in Canada inherently demands a specification of
the interaction between different moral world views.
In Part I, I introduce a parallel between the questions of the appropriate
law on
interaction of different moral world views and recent Canadian case
Aboriginal rights in order to underscore the salience of my project, showing how the
case law manifests ongoing struggles about how to engage in meaningful cross-
cultural theory. In Part II, I introduce Taylor’s concept of an “unforced consensus” on
human rights, arguing that it provides a generally helpful model for cross-cultural
rights discourse. I will simultaneously seek to unpack certain elements of Taylor’s
account in order to present some of its more specific implications. In Part III, I
attempt to show how “traditional” moral theorizing on collective rights issues, as
to live up to the
exemplified
methodological demands that emerge from Part II. In Part IV, I sketch out some new
approaches to moral theorizing, tying them both to the case law introduced in Part I
and to the political theory literature discussed in Part III.
in Kymlicka’s prominent writings, has failed
I seek to explore,
true
to Aboriginal conceptions of these rights. The
in a preliminary way, cross-cultural moral theorizing of
Aboriginal rights that can inform and persuade Canadian courts and legislators while
term “moral
remaining
theorizing”, which I will often use, is not meant to cast the task narrowly, but refers
simply to a theorizing on the right or the good. I argue in this article that the
methodology used for theorizing about Aboriginal rights should change as a result of
the cross-cultural context and that this conclusion also has implications for the
Canadian judicial approach to Aboriginal rights. My account is intended as a
preliminary form of a general theory of cross-cultural theorizing of Aboriginal rights,
not to address specific problems but potentially connected to many, so some of the
claims are framed at a certain level of abstraction. However, as I will now show, my
account has direct practical implications for section 35 case law.
I. Section 35 Case Law and Cross-Cultural Understandings
As I noted earlier, the Supreme Court has repeatedly mandated taking into
account Aboriginal perspectives in developing section 35 and Aboriginal rights.27
However, some of its most recent case law has shown a profound ambivalence toward
this principle. In its 2005 decision in R. v. Marshall, the Court called for the
assessment of Aboriginal rights in terms of how they “translate” into rights known to
the Canadian legal system.28 As Chief Justice McLachlin, writing for the majority, put
it, “The Court’s task in evaluating a claim for an aboriginal right is to examine the
pre-sovereignty aboriginal practice and translate that practice, as faithfully and
27 See Delgamuukw, supra note 4 at para. 112; Mitchell, supra note 4 at para. 32; Ross River, supra
note 4 at para. 64; Marshall, supra note 4 at paras. 129-30.
28 Supra note 4 at para. 48.
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objectively as it can, into a modem legal right.”’29 Although this “translation”
metaphor and test arise within a discussion that refers to both Aboriginal and
European perspectives, they parallel Kymlicka’s advice that “it is important to find a
justification of [Aboriginal rights] that [non-Aboriginal judges and politicians] can
recognize and understand.”,30 The priority in terms of concept or justification becomes
comprehensibility within the non-Aboriginal (and “modem”) context.
As I have argued elsewhere,3″ inconsistency with prior principle is unsurprising in
the section 35 context: although the Court has clearly turned to political theory to
flesh out section 35, we do not yet have comprehensive theoretical bases in place for
the analysis of Aboriginal rights. Thus, the Court’s jurisprudence has varied
dramatically with respect to different dimensions of its section 35 case law. 32 Based
on this conceptualization of what has happened in the section 35 context,33 there is no
compelling reason to consider Marshall to be a stable point of future legal reference
either, particularly given the degree to which it has rapidly come under trenchant
academic critique.34 Notably, in its 2006 decision in R. v. Sappier,35 the Court
implicitly moved away from elements of the majority analysis in Van der Peet-the
leading case on the nature of Aboriginal rights-and toward the adoption of elements
of the Van der Peet dissents.36 In doing so, the Court cited academic critiques of the
original majority judgment. 7
This last example actually manifests in one further way the salience of attempting
to grapple with cross-cultural theory in the section 35 context. One of the academic
critiques to which the Court refers is Russell Lawrence Barsh and James Youngblood
Henderson’s seminal case comment on Van der Peet.” One of Barsh and Henderson’s
critiques of the Van der Peet test-which requires that a practice protected by an
Aboriginal right be integral to an Aboriginal community’s distinctive culture 39– is
that
29 ibid.
30 Liberalism, supra note 1 at 154.
31 See generally Dwight G Newman, “Prior Occupation and Schismatic Principles: Toward a
Normative Theorization of Aboriginal Tide” (2007) 44 Alta. L. Rev. 779 [Newman, “Prior
Occupation”].
32 See e.g. McNeil, supra note 8 (sketching a broad narrative of Aboriginal title). For an alternative
view that the law discussed by McNeil has evolved in gradual and comprehensible steps, see Isaac,
supra note 8.
33 For my discussion of the competing narratives of s. 35 interpretation, see Newman, “Prior
34 See e.g. Paul L.A.H. Chartrand, “R. v. Marshall; R. v. Bernard: The Return of the Native” (2006)
Occupation”, supra note 31.
55 U.N.B.L.J. 135; McNeil, supra note 8; Walters, supra note 24 at 472, 501-502, 517.
3’ 2006 SCC 54, [2006] 2 S.C.R. 686, 309 N.B.R. (2d) 199, 74 D.L.R. (4th) 75 [Sappier].
36 Ibid. at paras. 42-45, 49.
37 Ibid. at paras. 42, 44.
38 “The Supreme Court’s Van der Peet Trilogy: Naive Imperialism and Ropes of Sand”, Case
Comment, (1997) 42 McGill L.J. 993.
39 Supra note 2 at para. 46.
2007] D.G NEWMAN- CROSS-CULTURAL THEORIZING OFABORIGINAL RIGHTS 733
[w]e can find no precise equivalent of European concepts of “culture” in
Mi’kmaq, for example. How we maintain contact with our traditions is
is described as
tan’telo’tlieki-p. How we perpetuate our consciousness
tlilnuo ‘lti’k. How we maintain our language is tlinuita ‘im. Each of these terms
connotes a process rather than a thing.40
The Court goes on to draw the conclusion-as awkward as it might arguably be for
its Van der Peet test-that “[u]ltimately, the concept of culture is itself inherently
cultural.”‘
Even prior to this self-reflexive, seemingly self-questioning statement, the Court’s
section 35 case law has shown an ongoing struggle with cross-cultural issues in the
Aboriginal rights context. This conclusion is sufficient, of course, to make an attempt
to grapple with cross-cultural theorizing relevant in the judicial context. One would
err if one were to say that cultural dimensions of the concept of culture fundamentally
render the project senseless. That one community conceptualizes justice differently
than another community does not undermine the moral validity of specific claims.
That it is wrong to torture (at least generally, if some readers think there are
exceptions) may be conceptualized in different ways but nonetheless remains morally
true. Accordingly, the task at hand is not to undertake some kind of deconstruction of
the very essence of adjudicative discourse but to reason about cross-cultural
theorizing and, in so doing, to contribute to yet better-reasoned judicial discourse.
Existing cross-cultural gaps in the context of Aboriginal rights are not, of course,
found solely in the judicial context. Academic literature is replete with claims of the
gaps between Aboriginal and non-Aboriginal world views-indeed, of the
irreconcilability of certain elements of these world views.42 Some of the differences
may be more complex than sometimes presumed. To develop just one example
slightly further, one common claim is that an Aboriginal conception of property is
entirely irreconcilable with its Western equivalent. 3 One of the alleged dimensions of
is a polarized relation to property: Aboriginal people feel a
this irreconcilability
connection to their property whereas non-Aboriginal people regard property only
instrumentally.” Such polarized descriptions risk failing to recognize the richness of
both conceptions. For example, many non-Aboriginal people would feel a deep-
rooted sense of violation if they had something stolen, or if land that had belonged to
a family for several generations were expropriated. That said, there is no doubt that a
complex set of cultural differences exists between Aboriginal and non-Aboriginal
world views.
“40 Barsh & Henderson, supra note 38 at 1002, n. 30.
41 Sappier, supra note 35 at para. 44.
42 See Walters, supra note 24 (citing numerous examples).
43 See generally James (Sakej) Youngblood Henderson, Matjorie L. Benson & Isobel M. Findlay,
Aboriginal Tenure in the Constitution of Canada (Scarborough, Ont.: Carswell, 2000) at 397-425.
44 See ibid.
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The relevance of such differences to Canadian law is inescapable. Indeed, one of
the areas of potential difference pertains precisely to what law is. The conception of
law within Aboriginal world views, as various writers have detailed, differs
significantly from that within non-Aboriginal world views.45
The question that returns like an echo is how, most appropriately, to face up to
these cross-cultural divides in the context of Aboriginal rights claims. The Court’s
most recent “translation” test, discussed above, involves a sort of dalliance with
something akin to Kymlicka’s claim that Aboriginal rights will need to be phrased in
ways that are comfortable to non-Aboriginal judges. Can we do any better?
II. Cross-Cultural Dialogue and “Unforced Consensus”
A particularly rich counterpoint to the epigraph from Kymlicka and, implicitly, to
judicial approaches that undertake only a one-way translation, is Charles Taylor’s
account of “unforced consensus” on human rights.46 Taylor’s account emerged from a
larger theoretical movement concerned with intercivilizational dialogue and cross-
cultural theorizing.47 The challenges of cross-cultural theorizing are not unique to the
“45 See generally James Youngblood Henderson, First Nations Jurisprudence and Aboriginal Rights:
Defining the Just Society (Saskatoon: University of Saskatchewan Native Law Centre, 2006) at 116-
77; John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of
Toronto Press, 2002) at 13-23; Walters, supra note 24 at 479-94 (particularly for his discussion of the
“rIeat Law”).
46 See Taylor, “Unforced Consensus”, supra note 17. For other salient accounts on similar matters in
the Canadian context, see James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity
(Cambridge: Cambridge University Press, 1995); Duncan
Ivison, Postcolonial Liberalism
(Cambridge: Cambridge University Press, 2002). However, the points of engagement between
Kymlicka and Taylor are so specific that I have considered it appropriate to focus on Taylor’s account
for present purposes. A larger project on cross-cultural theorizing could engage with the full spectrum
of authors who have implicitly touched on the notion of unforced consensus.
47 The United Nations General Assembly decided in 1998 that 2001 would be the United Nations
Year of Dialogue Among Civilizations, thus putting the notion of intercivilizational dialogue and
cross-cultural theorizing squarely on the world agenda. See generally Ken Tsutsumibayashi, “Fusion
of Horizons or Confusion of Horizons?: Intercultural Dialogue and Its Risks” (2005) 11 Global
Governance 103. In doing so, the UN responded to both the East Asian challenge to human rights and
to an academic literature that had emerged either claiming a forthcoming clash of civilizations or
urging the need for dialogue in the face of pluralism. See e.g. Samuel P. Huntington, “The Clash of
Civilizations?” (1993) 72:3 Foreign Affairs 22 (foreseeing a clash of civilizations but also that
reconciliation will require dialogue); Samuel Huntington, The Clash of Civilizations and the
Remaking of World Order (New York: Simon & Schuster, 1996); John Rawls, Political Liberalism
(New York: Columbia University Press, 1996); John Rawls, The Law of Peoples (Cambridge: Harvard
University Press, 1999). A number of efforts at theorizing intercivilizational dialogue emerged through
the 1990s. See e.g. Hans Kiing & Karl-Josef Kuschel, eds., A Global Ethic: The Declaration of the
Parliament of the Worlds Religions (London: SCM Press, 1993); David Held, Democracy and the
Global Order: From the Modern State to Cosmopolitan Governance (Cambridge: Polity Press, 1995);
Hans Kiing, Global Responsibility: In Search of a New World Ethic (New York: Continuum, 1996);
2007] D.G NEWMAN- CROSS-CULTURAL THEORIZING OFABORIGINAL RIGHTS 735
Canadian context.48 Indeed, John Rawls’s later writings famously turn to related
issues. His account of an “overlapping consensus” in Political Liberalism49 bears
some similarity to Taylor’s concept5″ (a similarity to which I will return below), and
his account in The Law of Peoples is similarly concerned with justice in the face of
pluralism, now situated at the international level.51 But Taylor’s account offers
particular insights for our purposes and, I will argue, has a particularly apt application
to the issues at hand.
The hope for the “unforced consensus” conception, as Taylor presents it, is a
“meeting of very different minds, worlds apart in their premises, uniting only in the
immediate practical conclusions.”52 This meeting involves “[a]greement on norms,
yes, but a profound sense of difference, of unfamiliarity, in the ideals, the notions of
human excellence, the rhetorical tropes and reference points by which these norms
become objects of deep commitment for us.”53 The background differences, Taylor
argues, can themselves be a source of strength, offering the possibility of mutual
learning and borrowing.54 This learning and borrowing can be consistent with the
unforced nature of the consensus sought, since Taylor embraces a rich understanding
of the traditions between which there can be dialogue. Each tradition can draw on the
“possibilities of reinterpretation and reappropriation
itself
contains.”55
tradition
that
the
Although Taylor only explicitly offered this account of “unforced consensus” in
1999, there is little doubt that it has a deeper grounding in his previous philosophical
work. A telling indicator of this is that Ken Tsutsumibayashi was able to develop
something much like Taylor’s account of unforced consensus merely from Taylor’s
previous work on the politics of recognition, and without any explicit reference to
Taylor’s later “unforced consensus” project.56 This grounding of unforced consensus
in Taylor’s previous work makes clear part of the justification for cross-cultural
theory. As Tsutsumibayashi claims, Taylor’s earlier argument on the politics of
recognition57 suggests that the politics of identity will develop into a more destructive
Hans KMing, A Global Ethic for Global Politics and Economics (Oxford: Oxford University Press,
1998); Richard Falk, Predatory Globalization: A Critique (Cambridge: Polity Press, 1999).
48 The variety of sources in note 47 makes this clear.
49 Supra note 47.
s5 Note that Taylor himself notes this similarity, treating Rawls’s metaphor as a starting point
(“Unforced Consensus”, supra note 17 at 125).
51 Supra note 47.
52 “Unforced Consensus”, supra note 17 at 143.
“3 Ibid. at 136.
54 ibid.
“55 Ibid. at 142.
56 See Tsutsumibayashi, supra note 47.
57 Charles Taylor, “The Politics of Recognition”
in Amy Gutmann, ed., Multiculturalism:
Examining the Politics of Recognition (Princeton: Princeton University Press, 1994) 25.
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force in the absence of a “fusion of horizons”58 that shows a real respect for (in the
sense of a genuine attempt to understand and engage with) the values of diverse
groups; resentment will grow out of failure to recognize cultures that members
themselves consider of abiding value.”
In other words, the refusal to engage in a
project of cross-cultural moral theorizing can be tantamount to a denial of the worth
of particular cultures.6″
Like much of the rich body of Taylor’s writing, one struggles to draw from his
account entirely precise claims. But that is part of its power: his account can be both
argumentative and evocative, eliciting a yet deeper conception of “unforced
consensus”. Taylor’s account stands in contrast to Rawls’s “overlapping consensus”
in that, while Rawls is fundamentally concerned with a moral consensus on those
elements of the political order that would assure stability in the context of reasonable
pluralism,6″ Taylor is potentially open to seeking consensus across a broader array of
matters. In his notion of learning and borrowing from across cultures, Taylor also
offers some more specific forms of engagement, 62 while Rawls tends to presume that
an overlapping consensus can simply arise through an acceptance of the premises of
political liberalism based on deeper premises from within each world view. 63
Drawing from Taylor’s account, then, we might frame the challenge of cross-
cultural rights theory as the pursuit of some agreement among those holding a variety
of background world views that would enable them to live and flourish together.6’
Taylor acknowledges that there will be ongoing senses of unfamiliarity between those
58 Tsutsumibayashi, supra note 47 at 105 [emphasis omitted]. Taylor draws the concept from Hans
Gadamer’s hermeneutics (Hans-Georg Gadamer, Wahrheit und Methode [Truth and Method]
(Tiibingen, ER.Ri: Mohr, 1960)) but, as articulated by Tsutsumibayashi, “reformulate[s] [it] into a
social scientific tool” (ibid. at 105).
“59 Tsutsumibayashi, ibid. at 105-109.
“60 Such denial can also be an assault on the lives of individual persons: consider honestly the
implications of Taylor’s insight that “[t]he gender definitions of a culture are interwoven with, among
other things, its love stories, both those people tell and those they live,” making the point that even
something that has oppressive elements may still crucially frame identities in deep ways, and thus
arguing at least for care in imposing demands for instant change (“Unforced Consensus”, supra note
17 at 139).
61 Rawls, Political Liberalism, supra note 47 at 15, 22-29, 147-52.
62 Taylor, “Unforced Consensus”, supra note 17 at 136.
63 His “[s]teps to [o]verlapping [c]onsensus” presumes a willingness to enter into discussion of an
overlapping consensus (Political Liberalism, supra note 47 at 164-68). Lucas Swaine has recently
reinvigorated the study of some of these issues, discussing the genuine struggles of explaining the
legitimacy of the governmental order to theocratic religious groups. See Lucas Swaine, “A Liberalism
of Conscience” in Avigail Eisenberg & Jeff Spinner-Halev, eds., Minorities Within Minorities:
Equality, Rights and Diversity (Cambridge: Cambridge University Press, 2005) 41 at 47-55. See also
Lucas Swaine, A Liberalism of Conscience: Politics and Principle in a World of Religious Pluralism
(New York: Columbia University Press, 2006).
“64 There are, of course, theorists besides Rawls concerned with related matters. See e.g. Jeremy
Waldron, “Special Ties and Natural Duties” (1993) 22 Philosophy & Public Affairs 3 at 14-15
(developing the Kantian requirement to establish just relations with one’s neighbours).
2007] D.G NEWMAN- CROSS-CULTURAL THEORIZING OFABORIGINAL RIGHTS 737
holding richly complex background world views.65 But his claim is also that such
individuals can usefully learn and borrow from one another if they are ready to go
beyond preconceptions and simplicities.66 Consider, for example, the increased use of
restorative justice approaches within the judicial system. Such approaches, which
involve victims, offenders, families, and the community, and that encourage healing
and reconciliation, are not unique to Aboriginal cultures. However, some Canadian
influence of
justice departments
Aboriginal world views in the development of such strategies.67
implemented them have cited the
that have
An objection might emerge that Taylor’s recipe contains little but saccharine and
the
that his account represents only well-intentioned but naive hopes for
reconciliation of differences that are beyond reconciliation. Three responses suggest
themselves. First, Taylor’s proposal may simply posit a necessary act of faith, the
rejection of which becomes a self-fulfilling prophecy. In other words, it is simply
necessary to assume that it is possible to reach cross-cultural consensus in order to
have a chance of doing so. Second, Taylor’s account not only hopes for cross-cultural
consensus but provides an appropriate and moderate measure of what cross-cultural
consensus would look like-it would remain complex, variegated, and rich with
ongoing encounter. Third, as I will argue further below, Taylor’s account can actually
ground specific methodological principles for seeking cross-cultural consensus.
Taylor’s work seeks “conditions of an unforced consensus.”‘ 8 It thereby implicitly
calls us to analyze the circumstances and conditions that can better promote the
attainment of such a cross-cultural consensus, going beyond an assertion of hope to
an articulation of the means of attaining these hopes.
That said, one needs to address a possible ambiguity in Taylor’s project, that
between seeking agreement merely on “practical conclusions”’69 and seeking at least
some agreement at the propositional level supporting these conclusions.7” Does
Taylor seek agreement on underlying principles or on the practical conclusions that
result from them? Arguably, Tsutsumibayashi’s development of Taylor’s project
clarifies Taylor’s desire for a “‘fusion of horizons”‘ that would pay some regard to the
propositional level, and Taylor himself seems to presume as much when he speaks of
the potential borrowing processes that might occur between cultures in the course of
dialogue.7”
65 Taylor, “Unforced Consensus”, supra note 17 at 136.
66 Ibid.
67 This is the case, for instance, with Saskatchewan’s 1995 Restorative Justice Strategy. See e.g.
Saskatchewan Justice, Restorative Justice Strategy Interim Status Report-October 1997: Responding
to Changes in the Traditional Criminal Justice System (N.p.: Saskatchewan Justice, 1997).
68 “Unforced Consensus”, supra note 17 at 124.
“69 Ibid. at 143.
7 0 Ibid. at 136.
“71
Ibid.
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Although, to my knowledge, Taylor has never resolved this ambiguity, it is
possible to unpack and engage his theory so as to better see the possible force present
in both versions-whether agreement is to be sought primarily at the level of
conclusions or underlying propositions. From the outset, it is worth distinguishing
between two possible sources of moral conclusions reached by different cultures.
First, different cultures might place different value on different objectives, or, putting
it more simply, these cultures may have different values.72 The modem acceptance of
the idea of value incommensurability means that some value differences may in fact
simply arise from different choices based on different commitments. In other words,
not every intercultural value difference represents a moral error on the part of one of
the cultures
choices between
incommensurable options.73 So, for instance, if Aboriginal traditions place more value
on cultural connectedness and some Western
traditions place more value on
individuality, Aboriginal and non-Aboriginal cultures may arrive at different
approaches to specific issues. But they would in the process of arriving at these
different approaches simply act on different values that represent different dimensions
of human potential.
represent different
involved;
some
simply
Second, different cultures might reach different results simply through the
application of different concepts.74 Therefore, an Aboriginal community operating
with a conception of law that emphasizes harmony and natural order rather than
positivistic rights7” may initially have different perceptions about the way in which a
court should adjudicate a particular case.76
72 More specifically, cultures might have different societal goals or social forms structuring
individual choice in circumstances where reason alone cannot provide a guide between those different
societal goals or social forms. See Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press,
1986) at 321-22. Incommensurability arises when there are no reasonable grounds for preferring one
option over another or regarding them as equally worthy. See Timothy A.O. Endicott, Vagueness in
Law (Oxford: Oxford University Press, 2000) at 41-44.
73 The full application of these concepts to the context at hand would be worth further analysis in a
more extended project. Among other questions, one might ask to what degree Ruth Chang’s criticisms
of value incommensurability call for the re-evaluation of any of the standard claims in this regard. See
Ruth Chang, Making Comparisons Count (New York: Routledge, 2002).
74 There is an implicit suggestion to this effect running throughout much current writing on
Canadian Aboriginal legal issues. It surfaces in both academic and judicial contexts. For an example
of the former, see Henderson, Benson & Findlay, supra note 43 (“Only when reviewing courts have
understood Aboriginal tenure from an Aboriginal perspective can they begin to determine the
relationship of Aboriginal tenure to Crown tenure and the common law perspectives” at 399). For the
latter, see Delgamuukw, supra note 4, LaForest J., concurring (a sui generis Aboriginal title interest
cannot “be described with reference to traditional property law concepts” at para. 190). See generally
Ronald Dworkin, “Hart’s Postscript and the Character of Political Philosophy” (2004) 24 Oxford J.
Legal Stud. 1.
75 See e.g. Taiaiake Alfred, Peace, Power, Righteousness: An Indigenous Manifesto (Don Mills,
Ont.: Oxford University Press, 1999) at 101-102.
76 Some would argue that this example involves not simply a conceptual difference but a value-
based difference as well, at least in so far as the different concepts import values. Some concepts will
2007] D.G NEWMAN- CROSS-CULTURAL THEORIZING OF ABORIGINAL RIGHTS 739
One can
thus distinguish value-based differences
from concept-based
differences, 77 both of which might reasonably lead thinkers within one cultural
framework to reach different conclusions on a particular matter. Distinguishing value-
based differences and concept-based differences, however, begins to make clear that
different sorts of differences might push differently toward aspirations of agreement
at the levels of propositions and conclusions.
incommensurable-that
If value-based differences are genuinely
is, not
resolvable in terms of some further underlying value or values”–then there would
seem to be only qualified hope for agreement at the conclusory level. By stipulation,
there can be no agreement at the propositional level because there is no further value
with which to render commensurate the choices each culture has made.79 The actual
claim put by many, of course, would be that many value choices are actually
commensurable in terms of some underlying value(s)-human dignity is often cited
as a possibilityS–and, if that is so, then there is the possibility of reasoning through
what best expresses the underlying value(s). So, for instance, an agreement could
emerge between Aboriginal and non-Aboriginal communities that human dignity is
best respected by treating offenders in particular ways within the justice system.8″
If one accepts the notion of genuine incommensurabilities, then matters become
more complicated. Agreement on conclusions might not seem to be automatic, for
indeed import values. But there will nonetheless be a conceptual element at stake in the differences
that emerge; that conceptual element requires independent analysis of the sort I am offering.
17 The question of which difference is more at stake in the Aboriginal rights context in Canada has
is not
not been fully analyzed, and clearer understandings in this area are well worth further attention.
interpenetration of cultures
78 See supra note 72. The term “incommensurable” has sometimes taken on other connotations.
like Alan Cairns have challenged claims about the alleged
Perhaps as a result, authors
incommensurability of values between Aboriginal cultures and non-Aboriginal cultures. Cairns
suggests that such claims are in tension with the interpenetration of cultures within Canada (Alan
Cairns, Citizens Plus: Aboriginal Peoples and the Canadian State (Vancouver: UBC Press, 2000) at
the presence of some
8). However,
incommensurabilities of value; a lawyer and a novelist might grow up in the same social setting, even
the same family, and share many values yet choose different goals in light of some incommensurable
values. That said, Cairns is right to interrogate the extent of cultural differences with Canada’s
Aboriginal peoples, and it might well be that there are many more commonalities than in the
intercivilizational context (which itself will contain many more commonalities than often thought). To
take just one example, it is surely mistaken to claim that only Aboriginal individuals’ personal
identities and cultures are connected with the land. See generally Newman, “Prior Occupation”, supra
note 31.
inconsistent with
79 On the concept of incommensurability, see supra note 71. See also Raz, The Morality of
Freedom, supra note 72 at 327 (noting that the essence of incommensurability is that there is not some
further value with which to commensurate two incommensurate options).
80 See e.g. Hugo Adam Bedau, “The Eighth Amendment, Human Dignity, and the Death Penalty” in
Michael J. Meyer & William A. Parent, eds., The Constitution of Rights, Human Dignity and
American Values (Ithaca, N.Y: Cornell University Press, 1992) 45 at 145-46. Bedau describes dignity
as “the premier value underlying the last two centuries of moral and political thought,” which, if one
believed it fully, would make it something that offers appropriate commensuration (ibid. at 145).
81 See e.g. Saskatchewan Justice, supra note 67; text accompanying note 67.
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those attaching different values to different characteristics of processes or end states
might reasonably reach different conclusions on many matters. Within this branch of
the analysis, Taylor’s prospect of an “unforced consensus” either becomes an
unsubstantiated assertion of an ongoing faith in liberalism managing to overcome
such differences, or else rests on an ongoing set of circumstances that enable different
genuinely incommensurable values to be chosen, which might well be possible,
particularly if genuine incommensurabilities are limited in scope.82 Conditions of
nonconflict might be
implementation of genuinely
incommensurable choices. If human flourishing, for example, is an inescapable value
but there are a range of incommensurable forms of human flourishing, it might
nonetheless be the case that certain sorts of cross-cultural agreement are instrumental
to the achievement of any of these incommensurable forms.83 The absence of
reasonable peace and stability may undermine all efforts at different forms of human
flourishing. So, there remains the possibility of agreement on certain practical
conclusions.
instrumental
to
the
If differences arise from the presence of different concepts within different
cultures, prospects for propositional agreement are, perhaps, more significant.
Concepts per se describe but do not define reality. If a biologist operates with one
concept of a rose, likely one that is well developed in terms of species differentiation,
that biologist will notice different things about roses than the poet who operates with
a different concept of a rose and who, in turn, notices other things about roses. Both
will notice mainly true things, though occasionally they will simply not notice things
or actually reach mistaken conclusions based on the limitations of their respective
concepts. However, were they to operate with an awareness and understanding of one
another’s concepts, they would, by virtue of propositional agreement, be able to reach
agreement on conclusions.
One could view the concepts at issue in cross-cultural moral differences as of a
different kind, being not natural-kind concepts-those describing groupings of things
that are natural and not artificial, with examples being chemical elements or
biological species-but, for instance, “interpretive concept[s]”.84 However, to the
extent that concepts of justice differ from concepts of roses, such a difference arises
from the introduction of value differences, not because they are different kinds of
concepts per se. Concept-based differences per se implicitly presume the possibility
of reaching agreement on conclusions that are based on the further study of, as well
as agreement at, the propositional level. This is because concepts are, in a sense,
mental placeholders for elements of physical, moral, or other reality. Assuming that
reality is subject to at least some objective claims-and one descends rapidly into
82 Cf. supra note 72 and accompanying text.
83 See e.g. John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980) at 85-95
(developing a model with a set of basic human goods, all of which are equally fundamental and thus
implicitly incommensurable).
84 Dworlkn, supra note 74 at 15.
2007] D.G NEWMAN- CROSS-CULTURAL THEORIZING OFABORIGINAL RIGHTS 741
senselessness on any other assumption-then even if subjective conceptual
placeholders about reality were to differ, the underlying objective realities would be
subject to ultimate agreement once one got past the lenses of different concepts.
Of course,
raised
the objection
in respect of concept-based differences
immediately makes clear the potential overlap of value-based and concept-based
differences. Different cultures reach different practical conclusions based on a
complex mix of concept-based differences, which are over time rendered ever more
complex by cultural processes. Consider gender definitions, one of the complex and
rich examples Taylor raises, albeit in a slightly different context, in his discussion of
“unforced consensus”. Taylor writes, “The gender definitions of a culture are
interwoven with, among other things, its love stories, both those people tell and those
they live.”85 Taylor’s point here is the sophisticated but oft-neglected one that even a
cultural characteristic with oppressive elements may frame human identities in deep
ways, suggesting the need for caution in imposing demands for instant change.8 6
However, this example also appropriately manifests the deep-rooted historicity of
cultural differences enmeshed in webs of cultural differences that are both value
based and concept based. A culture’s traditional norms involving the selection of a
marriage partner based on consultations with others, rather than solely on romantic
love, may arise from a complex mix of elements. These might include different ways
of pursuing the same value (such as the search for lasting life partnerships), different
choices as between different values that may be incommensurable (such as between
more community-oriented and more individually oriented conceptions of family), and
different historically mediated cultural concepts (or empirical beliefs, or, even,
empirical conditions, with the ways in which each culture perceives lasting life
partnerships best enduring being crucially affected by the culture’s own historical
experience about what makes for lasting life partnerships).
For present purposes, it is sufficient to conclude that some of the unforced
consensus Taylor seeks would be at the level of practical conclusions and some at the
underlying propositional level. Moreover, absent a definitive faith in liberal discourse
overcoming all value incommensurability, some unforced consensus might not occur
at all. If one does not have that definitive faith in the power of liberal discourse,87
failures to attain cross-cultural agreement can arise from various sources, including
inefficiencies that might attach to the “negotiation process” (that is, the mode one
adopts for seeking cross-cultural agreement)88 and actual value incommensurabilities
where different actors choose not to alter their commitments.
85 “Unforced Consensus”, supra note 17 at 139.
86 See also Dwight Gi Newman, “Theorizing Collective Indigenous Rights” (2007) 31 Am. Indian L.
Rev. 273 at 283, n. 58 [Newman, “Indigenous Rights”].
87 On the acts of faith behind liberalism, see generally Paul W. Kahn, Putting Liberalism in Its Place
(Princeton: Princeton University Press, 2005).
88 Many of the dynamics of negotiation theory potentially apply. For an account closely geared
in negotiation processes, see generally Howard
toward analyzing efficiencies and inefficiencies
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The degree
to which such cross-cultural consensus can emerge may be
problematic. That said, Taylor offers a powerful argument for the necessity of at least
some degree of cross-cultural moral theorizing. After all, some theorists classed as
liberal theorists of multiculturalism have suggested their readiness to challenge the
very worth of particular cultures.,9 Taylor’s argumentation, by contrast, provides a
compelling counterpoint to attitudes that threaten to reawaken disrespect for minority
cultures. His argument explicitly points to a presumption of value: if different cultural
and religious traditions have emerged and served humanity well over the centuries,
the logical presumption is that there is something of value in these traditions that has
enabled them to respond to human needs.9″ To say that is not to embrace everything
within every tradition. Indeed, Taylor expects traditions to make use of internal
“possibilities of reinterpretation and reappropriation,”‘
that is to say, ways of
internally reinterpreting a tradition so as to remove elements that have oppressive
consequences while also adhering to what is of value in the tradition.92
Drawing on the spirit of Taylor’s approach, one can conceive the approach as
grounding a more specific sort of methodology of cross-cultural consensus building.
The methodology would first involve distinguishing between conceptually based and
value-based elements of disagreements. Conceptually based disagreements would call
for translation processes that interpret the concepts of one culture for another in the
hope of explaining the claims of the first. It might also be possible to develop
intermediate concepts that are between two cultures and similarly find underlying
agreement. So, for instance,
it might be possible to find agreement between
Aboriginal conceptions of the relationship between humans and specific territories,
on one hand, and Western concepts of “ownership”, on the other, by disaggregating a
bundle of property rights to render a set of Aboriginal rights to engage in certain
activities within a territory consistent with an ongoing ownership interest by some
individual or institution.93
Raiffa, John Richardson & David Metcalfe, Negotiation Analysis: The Science and Art of
Collaborative Decision Making (Cambridge: Belknap Press of Harvard University Press, 2002).
89 See e.g. Rawls, Political Liberalism, supra note 47 at lvi-lvii (arguably excluding the genuine
meaning of certain religious positions, something John Finnis has challenged in work that remains, to
my knowledge, thus far unpublished); Joseph Raz, Ethics in the Public Domain: Essays in the
Morality of Law and Politics (Oxford: Clarendon Press, 1994) [Raz, Ethics in the Public Domain] (“it
has to be admitted that liberal multiculturalism is not opposed in principle to the assimilation of one
cultural group by others” at 182); Susan Moller Okin, “Feminism and Multiculturalism: Some
Tensions” (1998) 108 Ethics 661 at 680 (stating without much explanation that it might be better that
some cultures “become extinct”). Later, she has tried to temper this language and perceived
misinterpretations (Susan Moller Okin, “Multiculturalism and Feminism: No Simple Question, No
Simple Answers” in Eisenberg & Spinner-Halev, supra note 63, 67 at 69-70.)
90 “Unforced Consensus”, supra note 17 at 139, 143-44. See also Michael Oakeshott, “Rationalism
in Politics” in Rationalism in Politics and Other Essays (London: Methuen, 1962) 1; Raz, Ethics in
the Public Domain, ibid. at 179-80, 204-205.
91 “Unforced Consensus”, ibid. at 142.
92 See also Newman, “Indigenous Rights”, supra note 86.
93 See Newman, “Prior Occupation”, supra note 31.
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In the case of value-based disagreements, one would attempt to carefully
understand the values of the other culture and seek ways of reconciling these values
with one’s own, if possible. In some cases, it might be possible to find a deeper value
that offers an easier resolution. So, if both Aboriginal and non-Aboriginal conceptions
of the judicial system’s role are rooted in the well-being of the community, they might
be able to agree on appropriate approaches to the use of penal sanctions.94 In some
cases, it might be possible to understand the value of the other culture and then to find
a reconciliation. For example, if Aboriginal communities conceive of their relation to
their children in terms of kinship, it might be possible to find ways of modifying the
best-interests-of-the-child standard so as to recognize an independent Aboriginal
child welfare system that is acceptable in both cultural contexts.95 In some cases, it
might be possible to understand another culture’s values but not to bridge the
differences, leaving the cultures in question with the sole option of agreeing to
disagree. So, a Western secular state might recognize certain indigenous peoples
within it as having jurisdiction to promote the traditional spiritual values of their
communities even while pursuing a state that is neutral vis-A-vis religion.96
There is no denying that there might be genuinely incommensurable differences.
But a spirit of engagement that is concerned with seeking the above kinds of cross-
cultural reconciliations has far more potential than one might initially think. Taylor’s
that seeks to engage with other cultural
approach commends a methodology
communities in a quest for common ground.
Ill. Kymlicka, Collective Rights, and Aboriginal Conceptions
Will Kymlicka has created an entire school of thought in liberal multiculturalism
and its variants,97 but his writing was initially concerned with showing how a liberal
theory could properly recognize special rights for Aboriginal groups.98 Kymlicka has
made monumental contributions by showing that it is possible to defend collective
legal rights held by Aboriginal communities that are based on traditional liberal
94 See e.g. Saskatchewan Justice, supra note 67; text accompanying note 67.
95 See generally Cindy L. Baldassi, “The Legal Status of Aboriginal Customary Adoption Across
Canada: Comparisons, Contrasts, and Convergences” (2006) 39 U.B.C. L. Rev. 63 (implicitly calling
for Aboriginal customary adoption adapted in light of considerations not traditionally recognized in
Aboriginal customary adoption practices but not undermining their fundamental values either).
96 See e.g. Dwight Newman, “Putting Kymlicka in Perspective: Canadian Diversity and Collective
Rights” in Stephen Tierney, ed., Accommodating Cultural Diversity: Contemporary Issues in Theory
and Practice (London: Ashgate, 2007) 59 [Newman, “Kymlicka in Perspective”] (discussing such
examples in emerging self-government agreements).
97 Kymlicka himself perhaps best describes this school of thought (Will Kymlicka, Contemporary
Political Philosophy: An Introduction (Oxford: Oxford University Press, 2002) at 338-43 [Kymlicka,
Contemporary Political Philosophy]).
98 It has been enormously influential in showing how cultural rights can fit within liberal theory and
has had an influence on debates in the Aboriginal rights area in particular. See e.g. Cairns, supra note
78 at 175.
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values concerned with the equality of individuals. Put briefly, Kymlicka argues that if
Aboriginal communities face particular challenges
in maintaining the cultural
contexts they provide for their individual members, then collective legal rights may
be justifiable for those Aboriginal communities in order to protect individuals’ equal
access to cultural identities.99 Thus, Kymlicka is ready to argue, for example, in
favour of limits on the voting rights of non-Aboriginal Canadians who move into
Aboriginal territories. 100
Such a position, however, is distinct from any claim that communities per se have
moral claims to equality. In responding to an argument by Taylor that communities
per se have moral claims to equality, Kymlicka writes that such a concept is
“incoherent”. Kymlicka rejects any moral status for communities themselves. As he
states, “Groups have no moral claim to well-being independently of their members-
groups just aren’t the right sort of beings to have moral status.””
Kymlicka, then, is ready to defend collective legal rights (claims or justified
entitlements based on the correct interpretation of a legal system’s rules and
principles) but not collective moral rights (claims or justified entitlements that are
valid independently of any legal system).” 2 One could
interpret his
theoretical account as an example of cross-cultural theorizing. After all, it finds
agreement with the claims of Aboriginal peoples for certain Aboriginal rights, albeit
grounding them within a liberal framework.
initially
However, a further exploration of why Kymlicka takes the approach he does in
defence of Aboriginal communities problematizes this initial conception. In one
sense, Kymlicka rejects collective moral rights on an ontological premise-that
groups are not the sort of entities to hold rights.’ 3 In a deeper sense, Kymlicka
actually operates on a preliminary presumption against any approach not compatible
with liberalism, a presumption reflecting the strategic aims of realpolitik. In an
attempt to explain why the approaches of many Aboriginal theorists have been
misguided insofar as they have deployed theories departing in various ways from
standard liberalism, Kymlicka writes that nonliberal arguments “are not very strong
politically, for they do not confront liberal fears about minority rights.”‘0 4 Kymlicka,
as illustrated by the epigraph of this essay, is actually concerned with what would
convince those who hold power: “[I]t is predominantly non-aboriginal judges and
politicians who have the ultimate power to protect and enforce aboriginal rights, and
99 Liberalism, supra note I at 182-205.
“04 Ibid. at 150-52.
’01 Ibid. at 241-42.
102 Compare Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for
International Law (Oxford: Oxford University Press, 2004) at 408-24. Buchanan argues that “[t]o
assert that indigenous collectivities, or any collectivities, are the possessors of moral rights is not only
implausible; it is also entirely unnecessary from the standpoint of devising institutions for protecting
the interests of indigenous peoples” (ibid. at 415 [emphasis in original]).
103 See note 101 and accompanying text.
104 Kymlicka, Liberalism, supra note 1 at 153 [emphasis added].
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so it is important to find a justification of [these rights] that such people can recognize
and understand.”‘ 05
Such an approach effectively silences the beliefs Aboriginal peoples themselves
hold about Aboriginal rights. One might consider, for example, the language of the
Draft United Nations Declaration on the Rights of Indigenous Peoples,’6 indigenous
peoples having been substantially represented in its development. Most of the rights
in that instrument are held by “indigenous peoples”, with only some attributed to
“indigenous individuals”, and a number of rights are explicitly identified as collective
(either in addition to or in place of being individually held).’07 Although these are set
out as manifesto rights (which might be thought more legal than moral in form), the
cumulation of collective rights must eventually be taken as indicative of the
proposition that communities per se can hold moral rights, the very claim that
Kymlicka rejected.
Aboriginal theorists writing on indigenous rights have also advocated this view.
For example, Mary Ellen Turpel wrote in a prominent article: “Although indigenous
people are individually affected by the denial of collective human rights, the source of
their suffering is generally inseparable from the oppression experienced by the people
as a group.”‘0 8 She argues that the failure of the Canadian legal system to develop
collective rights responding genuinely to the circumstances and claims of Aboriginal
peoples is a conceptual failure.’ 9 Such statements suggest strong beliefs in the
Ibid. at 154.
“105
106 Annex to Commission on Human Rights, Report of the Sub-Commission on Prevention of
Discrimination and Protection of Minorities on its Forty-sixth Session, UN Doc. E/CN.4/1995/2 &
E/CN.4/Sub.2/1994/56 (October 1994) [mimeo.].
107 Ibid., Preamble. See especially arts. 6 (a collective right to live as distinct peoples), 7 (collective
and individual rights against ethnocide and cultural genocide), 8 (collective and individual rights to
develop identities), 32 (collective right to determine own citizenship), 34 (collective right “to
determine the responsibilities of individuals to their communities”). See also the Chairman’s final text
in Commission on Human Rights, Report of the Working Group Established in Accordance with
Commission on Human Rights Resolution 1995/32 of 3 March 1995–on its Eleventh Session, UN
Doc. E/CN.4/2006/79 (March 2006) [mimeo.] (“indigenous peoples possess collective rights which
are indispensable for their existence, well-being and integral development as peoples” at 19, PP I 8bis).
The final text affirms rights of “indigenous peoples” as distinct from “indigenous individuals” in many
articles, though the word “collective” is removed from arts. 32 and 34 (ibid. at 65, 66). On disputes
about the inclusion of collective rights in this legal instrument, see generally Newman, “Indigenous
Rights”, supra note 86.
108 “Indigenous Peoples’ Rights of Political Participation and Self-Determination: Recent
International Legal Developments and the Continuing Struggle for Recognition” (1992) 25 Cornell
Int’l L.J. 579 at 584 [Turpel, “Legal Developments”].
109 Mary Ellen Turpel, “Aboriginal Peoples and the Canadian Charter: Interpretative Monopolies,
Cultural Differences” [1989-1990] Can. Hum. Rts. YB. 3 at 23 [Turpel, “Interpretative Monopolies”].
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existence of collective moral rights, something Kymlicka’s ontological premises
exclude from the outset.” 0
Although space limitations preclude a full development of the point here, it is not
philosophically incoherent (or at least not possible to claim such incoherence without
a fuller development of the claim that goes well beyond what Kymlicka provides) to
argue for collective moral rights, even by beginning from central premises of Western
philosophical traditions. Analyses of collective rights have been underdeveloped,”‘
and they are sufficiently complex to warrant fuller treatment elsewhere, but I have
argued at length that the existence of collective moral rights is, on a deeper analysis,
logically demanded by standard accounts of rights within Western traditions.” 2
In making this argument, I obviously advance a controversial claim, one that
some might challenge as antithetical to Western
traditions and as ultimately
exagerrating the difficulty of cross-cultural moral theorizing by those from Western
traditions. If that is the case, the challenges for cross-cultural moral theorizing on
Aboriginal rights are even more difficult than I believe them to be. But in the absence
of definitive arguments to that effect, there is no reason to refuse an engagement with
perspectives that initially differ from traditional Western theory merely in the hopes
of achieving cross-cultural moral theorizing. Moreover, the need for cross-cultural
moral theorizing would remain after any such refusal and would simply constitute a
more challenging enterprise.
110 The ontological-type argument that groups are not the sort of entities to have moral standing is,
in a very real sense, Kymlicka’s main argument against the existence of collective moral rights. See
text accompanying note 100. One of his arguments against discussing “collective rights” is that the
term does not get at what is at issue. See Will Kymlicka, Multicultural Citizenship (Oxford: Clarendon
Press, 1995). Another is the strategic-type argument that liberal judges will be more receptive to
arguments founded on individual equality claims. See Kymlicka, Liberalism, supra note 1. But neither
of these is actually an argument against the existence of collective moral rights so much as a comment
on what some people find interesting to discuss. I challenge his ontological premises at length
elsewhere, arguing that because some communities have moral standing to the extent that we can
recognize collective moral responsibilities in some instances, we can also recognize collective moral
rights in some instances. See e.g. Newman, “Indigenous Rights”, supra note 86; Dwight G Newman,
Community and Collective Rights (D.Phil. Thesis, Oxford University Faculty of Law, 2005)
[unpublished] at 39-79 [Newman, Community]. For an argument that could pose a different challenge
to Kymlicka’s ontological premises, see Evan Fox-Decent, “The Fiduciary Nature of State Legal
Authority” (2005) 31 Queen’s L.J. 259 at 269. Fox-Decent suggests that the ultimate unit of value
within the law is the legal person (which can include not only natural persons but also unions,
corporations, communities, and indigenous peoples), and that the rule of law responds to the claims of
legal persons. Although Fox-Decent does not develop the argument precisely this way, one could
argue that the fact that these claims can have moral standing implies ipso facto that the rule of law
may mean that certain collective moral rights exist.
… See Linda Cardinal, “Collective Rights in Canada: A Critical and Bibliographical Study” (2001)
12 N.J.C.L. 165 (“There are still no comprehensive studies of the anthropological, historical, legal,
philosophical or social and political foundations of collective rights” at 166).
112 See Dwight G Newman, “Collective Interests and Collective Rights” (2004) 49 Am. J. Juris.
127; Newman, Community, supra note 110.
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Kymlicka’s claim concerning appropriate political strategy might seem to some
like an inoffensively pragmatic suggestion aimed at the successful advancement of
Aboriginal claims, and one might even try to frame it as guidance for successful
cross-cultural moral dialogue in which, in Taylor’s words, we achieve a “meeting of
very different minds, worlds apart in their premises, uniting only in the immediate
practical conclusions.”‘113 But Kymlicka’s strategic suggestion is ultimately at odds
with the broader urging of Taylor’s theory of cross-cultural dialogue to seek mutual
understanding, since Kymlicka’s strategic demand in effect requires Aboriginal
communities to explain themselves in Western (literal and figurative) language.
Moreover, the real problem is that different propositional content on this issue
ultimately means a difference with regard to practical conclusions. As I have
developed at greater length elsewhere,’l 4 Kymlicka’s argument
that there can
legitimately be certain collective legal rights (though he never likes the term and
prefers simply to speak about group-differentiated rights),’ I but only if they are based
the advancement of individual moral autonomy,” 6 has practical
directly on
implications for various issues. In particular, it tends to lead rapidly to Kymlicka’s
well-known distinction between “external protections” and “internal restrictions”,
which holds that group-differentiated rights may ground protections against outsiders
but not policies restricting insiders.”‘ The presumable result is to recommend against,
for example, regimes that permit Aboriginal groups to take steps to protect cultures or
religions that may have somewhat restrictive effects on their own membership.” 8 This
is the case even when preservation of Aboriginal culture and spirituality would be to
the great benefit of the membership. Kymlicka’s approach, then, seemingly
recommends against some of the provisions developed in contemporary Aboriginal
in Canada. For example, a recent self-government
self-government agreements
agreement involving the Tlicho nation empowers a Tlicho government to enact laws
in relation to the “protection of spiritual and cultural beliefs and practices of [Tlicho]
Citizens and [the] protection and promotion of the [Tlicho] language and of the
culture of the [Tlicho] First Nation,””‘9 conjoined with provisions that suggest some
ability to limit members’ rights as they would otherwise have been interpreted under
113 “Unforced Consensus”, supra note 17 at 143.
114 See especially Newman, “Kymlicka in Perspective”, supra note 96.
“115 See e.g. Kymlicka, Multicultural Citizenship, supra note 110 at 35.
116 See Kymlicka, Liberalism, supra note I at 165-73.
“117 Multicultural Citizenship, supra note 110 at 35.
118 See Kymlicka, Liberalism, supra note 1 at 196-98 (launching his now-classic attack on the
practices of certain Pueblo groups that sought to defend their traditional spirituality); Newman,
“Kymlicka in Perspective”, supra note 96. For another interesting recent critique of Kymlicka on
these points, see Andrew M. Robinson, “Cultural Rights and Internal Minorities: Of Pueblos and
Protestants” (2003) 36 Canadian Journal of Political Science 107.
119 Land Claims and Self-Government Agreement Among the [Tlicho] First Nation as Represented
by the Dogrib Treaty 11 Council and the Government of the Northwest Territories and the Government
of Canada, 4 September 2002, art. 7.4.4(a), online: Indian and Northern Affairs Canada
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the Canadian Charter of Rights and Freedoms.12′ Kymlicka’s approach seems to run
up against conclusions arising within other frameworks.
The implication is that the propositional content of the argument here may not be
simply irrelevant background. Some cross-cultural moral theorizing on certain
Aboriginal rights issues will only be viable and will only promote the aims of cross-
cultural theory if it employs a richer notion of cross-cultural theorizing, one that looks
to the propositional content of the theorizing and is thus willing to pay attention to
Aboriginal world views and propositional claims concerning matters like collective
moral rights.
A meaningful cross-cultural moral theory project engaging Aboriginal rights
needs to engage seriously with Aboriginal perspectives. It is thus vital to deal with
Aboriginal theorists on their own terms, in a manner that fully engages with their
positions and views. It is equally important to refrain from using the alterity of their
perspectives as a basis for rejecting their work.’2′ Although my present task is one of
discussing methodology rather than actually undertaking the above engagement, it is
possible to draw briefly on the writings of Darlene Johnston and Mary Ellen Turpel
on Aboriginal rights as collective rights to illustrate how academic practice needs to
open itself up to, and engage with, such writings. However, other Aboriginal
theorists’ views also point to a challenge going beyond a simple engagement with
Aboriginal perspectives on collective rights.
As a preliminary note, one should realize of course that the aim is not the
retrieval of “an (authentic) Aboriginal conception,” thereby forcing rich thought and
complex traditions into one simple (perhaps even historically frozen) form. Even
some Aboriginal theorists themselves have come at times close to making this error.
For example, Darlene M. Johnston’s 1989 essay, “Native Rights as Collective Rights:
A Question of Group Self-Preservation,”‘ 22 unfortunately spoke in broad-brush terms:
“Native people view their relationship with the land as central to their collective
identity and well-being. Within the native world view, people and land and culture are
indissolubly linked.”‘ 23 One cannot, however, meaningfully seek the “native world
view”. Even in 1989, Johnston’s writing unfortunately suggested that she was not
fully ready to recognize complex dialogues within Aboriginal
itself
Hopefully, this shortcoming can be attributed to merely semantic error, as she also
explicitly acknowledged the variety of Aboriginal communities.’24
thought
120 See Newman, “Kymlicka in Perspective”, supra note 96.
121 Kymlicka verges on doing so. See e.g. Liberalism, supra note 1 at 153.
12 2 Can. J. L. & Jur. 19.
123 Ibid. at 32.
124 Ibid. at 31-32. There are arguably parallels in, for example, Chinese philosophy, in which some
earlier Chinese philosophers “sought to determine the essence of Western philosophy and the essence
of Chinese philosophy,” or at least sounded as if they were constructing such generalizations, in order
to promote at least the beginnings of dialogue (Nicholas Bunnin, “Introduction” in Chung-Ying Cheng
& Nicholas Bunnin, eds., Contemporary Chinese Philosophy (Malden, Mass.: Blackwell, 2002) 1 at
2007] D.G NEWMAN- CROSS-CULTURAL THEORIZING OFABORIGINAL RIGHTS 749
The views of some Aboriginal theorists, like those of Johnston and Turpel, are
reasonably accessible to people from non-Aboriginal traditions. Both have Western
legal educations and are skilled at speaking to Western institutions from within, as it
were. Johnston specifically orients much of her argument in “Native Rights as
Collective Rights” around the writings of non-Aboriginal theorists while also trying to
incorporate Aboriginal perspectives on rights. In this manner, she herself engages in a
sort of fusion of horizons. 25 Turpel has partly pursued her argument in the familiar
framework of the jurisprudence of the United Nations Human Rights Committee’26 and
has written about Aboriginal rights in the context of section 35 of the Constitution Act,
1982 as co-author with non-Aboriginal constitutionalist Peter Hogg., 27
Some authors, like John Borrows, have developed their arguments in less Western
forms by, for example, drawing the attention of the non-Aboriginal legal community
to the legal content of Aboriginal fables-though it is worth noting that Borrows has
still written in a reasonably familiar legal form.’2 8 One of the challenges of cross-
cultural moral theorizing, of course, is to communicate ideas in a form that can
persuade those initially or potentially opposed to them without sacrificing the very
content of these ideas. An additional complexity thus attaches to the practice of cross-
cultural moral theorizing, one that can be called dialogic form-substance tensions.
Seeking a fusion of horizons brings this challenge to the fore. I do not claim to have
easy answers to these challenges. Seizing upon those theorists whose views are
initially most accessible because they are communicated in forms that incorporate
elements of one’s own cultural tradition may have its advantages, especially where
these theorists have successfully communicated the theory at stake. But there are
dangers to this approach, as it may result in dialoguing with diluted versions and/or
elitist interpretations of the tradition. If one succumbs to either of these dangers (and I
make no claim that they necessarily do here), some of the very objects of cross-
cultural moral theorizing may be lost.
This first challenge shares something important in common with the next, which
is concerned with the methodology of engagement in cross-cultural moral theorizing.
Kymlicka, as I noted earlier, has developed a sophisticated and extensive body of
theory. Yet, having identified the importance of Johnston’s contribution on collective
2). As with that phenomenon, we treat Aboriginal theorizing most seriously if we are ready today to
“distinguish between what is valuable and what should be disregarded in the works considered,” being
ready to leave as part of history cruder attempts at characterizing the interpretation of any complex
tradition (ibid.).
125 Supra note 122 (engaging with writings that include those of Franqois Chevrette, Julius Grey,
Owen Fiss, Michael McDonald, Frances Svensson, Ronald Garet, and Robert Cover).
126 “Legal Developments”, supra note 108.
127Peter W. Hogg & Mary Ellen Turpel, “Implementing Aboriginal Self-Government:
Constitutional and Jurisdictional Issues” (1995) 74 Can. Bar Rev. 187 at 210ff.
128 “The Trickster: Integral to a Distinctive Culture” (1997) 8 Const. Forum Const. 27.
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favoured distinction between external protections and
rights sufficiently to include it in a collection of essays he edited,’29 Kymlicka
nonetheless fails to engage with the content of her views. He either includes them in a
(repeated) footnote as an example of a communitarian theory,”3 ‘ thereby attaching a
label to Johnston’s views, or rejects them as examples of views that fail to attend to
Kymlicka’s
internal
restrictions.”3′ Both approaches, of course, manifest what is in some respects
considered solid academic practice, manifesting an ability to draw and apply
distinctions in an argumentative manner that seeks to prove the superiority of one’s
position over that of rival academics. But cross-cultural moral theorizing demands
something more: it requires a careful engagement with the views of Aboriginal
theorists even when it is tempting to dismiss them in accordance with prevailing
academic practice.
Johnston’s piece, on closer reading, is not specifically “communitarian”; it is
rather an engagement with the writings of a number of theorists that attempts to show
ways “to ground collective claims in a rights-based theory””3’ and then argue that
Aboriginal communities can make rights claims as collectivities. Johnston does
discuss communitarian theories in the early pages of her article, but merely ends up
drawing more general insights concerning common goods and goes on to use a
number of other theoretical perspectives that are not inherently communitarian. She
proceeds eventually to develop important implications of an attitude attendant to
collective rights in terms of possession and enjoyment of traditional lands. In the
process, she offers views on the relationship of individuals and collectivities, which
Kymlicka glosses as “rais[ing]
the priority (moral,
ontological, formative) of the individual and the community, and hence about the
relative priority of individual rights and collective rights,”’33 before returning to his
conceptual refusal to consider collective rights. In general terms, cross-cultural
theorizing may well need a careful reading of what is unfamiliar rather than an
attempt to characterize the unfamiliar as familiar and easily ignored.
familiar questions about
In terms of the methodology developed at the end of Part II, Kymlicka’s
discussion fails to engage in a cross-cultural dialogue with Johnston. Kymlicka reads
her concepts into a pre-existing framework rather than seeking intermediate concepts
that may make their positions reconcilable or seeking values that they may share. He
129 See Darlene M. Johnston, “Native Rights as Collective Rights: A Question of Group Self-
Preservation” in Will Kymlicka, ed., The Rights of Minority Cultures (Oxford: Oxford University
Press, 1995) 179 [Johnston, “Native Rights”].
130 For repetitions of this same footnote, see Kymlicka, Multicultural Citizenship, supra note 110 at
207, n. 20; Will Kymlicka, Politics in the Vernacular.- Nationalism, Multiculturalism, and Citizenship
(Oxford: Oxford University Press, 2001) at 19, n. 4; Kymlicka, Contemporary Political Philosophy,
supra note 97 at 373, n. 10.
129, 1 at 14.
.31 See Will Kymlicka, “Introduction” in Kymlicka, ed., The Rights of Minority Cultures, supra note
132 Johnston, “Native Rights”, supra note 129 at 19.
“‘ “Introduction”, supra note 131 at 14.
2007] D.G NEWMAN- CROSS-CULTURAL THEORIZING OFABORIGINAL RIGHTS 751
acts in accordance with standard academic practice but in the process misses
opportunities for shared learning with Johnston.
Turpel presents some Aboriginal perspectives concerning collective rights in her
discussion of the jurisprudence of the United Nations Human Rights Committee,’34
having previously expressed some of these perspectives in a less detailed way in the
course of discussing why Aboriginal communities might seek self-government
outside the Charter.’35 In a later piece co-authored with Peter Hogg,’36 she advances
an interpretation of the highly contested’37 section 25 of the Charter, which requires
that Charter rights “not be construed so as to abrogate or derogate from any
aboriginal, treaty or other rights and freedoms that pertain to the aboriginal peoples of
Canada.”‘ 38
Turpel claims first (and somewhat surprisingly) that section 25 was developed
without any contemplation of its use in relation to Aboriginal self-government, but
that it gives reason to interpret the legal rights of Aboriginal governments in light of
Aboriginal traditions, thereby justifying some deference to Aboriginal conceptions of
rights (which would ideally be set out in Aboriginal charters).’39 Turpel’s arguments,
then, carry forward some Aboriginal conceptions of rights. They also identify other
specific points of legal interaction on which there needs to be cross-cultural moral
theorizing. Something like section 25 of the Charter can form a specific focus for a
circle of discussion. That said, there are dangers, evident in Turpel’s own approach to
the question, in choosing such a focus. To the extent that one might interpret section
25 in terms of framers’ intent (to which Turpel first referred), one would risk
surrendering cross-cultural moral theorizing to the power dynamics at play at a
particular historical moment of constitution-drafting–or, more specifically, to the
way in which that historical moment has since been cast in dominant narratives. To
the extent that one might interpret section 25 only with reference to traditional legal
modalities, one risks entrenching the power dynamics of current historical legacies.
Cross-cultural moral theorizing demands an active moral re-engagement in the shared
search for understanding. 140
Cross-cultural moral theorizing will also be a dynamic process, one with
toward engagement with Aboriginal
potentially shifting objectives. Transition
134 “Legal Developments”, supra note 108.
135 “Interpretative Monopolies”, supra note 109 at 29-41.
136 Hogg & Turpel, supra note 127.
137 For a helpful recent summary of some of this contestation and uncertainty, see Arbour, supra
note 13.
138 Supra note 11.
139 Hogg & Turpel, supra note 127 at 214-16.
140 This claim has parallels to but does not coincide precisely with claims that the constitution
should be viewed as a “living tree” (Edwards v. Canada (A.G), [1930] A.C. 124 at 136, [1930] 1
D.L.R. 98 (P.C.)). One cannot exclude the possibility that constitutional “watertight compartments”
(Canada (A.G) v. Ontario (A.G), [1937] A.C. 326 at 355) might be precisely what may best respond
to cross-cultural issues, depending very much on precise factual circumstances.
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understandings of certain rights as collective rights may be just a beginning. Gordon
Christie has recently advanced the argument that translating Aboriginal rights into
group rights or rights of group autonomy represents only an initial step, for danger
remains so long as one is interpreting Aboriginal rights in terms definable in Western
traditions, and that the real challenge lies in being open to fuller Aboriginal self-
definition of Aboriginal rights.’4′ Sdk&j Henderson’s writings might illuminate, as
well, the more general challenge of undertaking dialogue in the limited forms of
languages that embody particular world views within the languages themselves.’42 A
project of cross-cultural moral theorizing is like group quilt making in the pursuit of a
progressive unfolding of yet undiscovered cloth-and all the more valuable for these
complex dynamics.
IV. Implications
Faith in a project of cross-cultural moral theorizing has a variety of specific
implications. As I argued in Part II, it suggests a certain methodology of engagement.
This engagement makes demands at a number of levels, including the nature of
academic engagement, the presence of Aboriginal individuals in academia or on the
courts, and in specific legal contexts like that of the Court’s recent “translation test”.’ 43
I argued in the last section that the mode of academic engagement with
Aboriginal theorists may need to adapt in subtle ways to avoid the automatic
dismissal of claims arising from Aboriginal world views. This may initially seem like
a minimalist sort of conclusion, reflecting only the commonsensical aspect of critical
race arguments in the United States that those working on minority rights issues
should actually read minority scholars.'” That demand, of course, is already one that
goes beyond the level of triviality. Richard Delgado’s famed study of how
engagement with minority scholars began as a sort of pretence-with some scholars
engaging in such manoeuvres by reading only the first few pages of pieces by
minority scholars, something Delgado revealed through their citations-can serve as
a reminder of the notion’s more substantial implications.’45
At a broader level within academia, there are reasons to encourage the entry of
Aboriginal theorists into debates in sufficient number to engage with Western thought
while recognizing the rich potential for diverse interpretation and reinterpretation of
both Western and Aboriginal thought.’46 Dale Turner has gone some distance toward
this goal, surprisingly within an account accepting Kymlicka’s realpolitik. Turner
14′ Gordon Christie, “Law, Theory and Aboriginal Peoples” (2003) 2 Indigenous L.J. 67.
“’42 James [S,k6j] Youngblood Henderson, “Interpreting Sui Genenis Treaties” (1997) 36 Alta. L.
Rev. 46 at 59-63.
“143 See supra notes 28-30 and accompanying text.
144See generally Richard Delgado, “The Imperial Scholar: Reflections on a Review of Civil Rights
145 ibid.
146 See Taylor, “Unforced Consensus”, supra note 17 at 142.
Literature”, Comment, (1984) 132 U. Pa. L. Rev. 561.
2007] D.G NEWMAN- CROSS-CULTURAL THEORIZING OFABORIGINAL RIGHTS 753
argues that “[i]f Aboriginal peoples are going to continue to assert that they possess
unique forms of rights, sovereignty, and nationhood that the state must recognize as
legitimate they will have to convince the dominant culture of the legitimacy of those
assertions.””‘ 7 The acceptance of Kymlicka’s realpolitik is explicit: “As long as
Kymlicka’s constraint requires indigenous peoples to explain themselves within the
discourses of the dominant culture, there will be a need for specially educated
indigenous people to generate the required explanations.””‘4 The latter point should
actually be extended-it applies in both the second-best context in which Turner
in the first-best context that Taylor’s cross-cultural
implicitly develops it and
theorizing implicitly seeks. Even without “Kymlicka’s constraint”, there is a need for
for
an expanded Aboriginal
enlarging the understanding of what fits within intellectual discourse”‘-to engage in
the kind of cross-cultural theorizing that should take place as a continuing project. 5″
intellectual community-with obvious potential
Turner’s work points to the need for Aboriginal philosophers to engage in the
challenging intellectual enterprise entailed by cross-cultural theorizing.”” He also, at
to identify some of the particular projects Aboriginal
least implicitly, seeks
philosophers need to undertake: elaboration of indigenous philosophy, engagement
by indigenous intellectuals with Western European philosophy on its own terms, and
engagement by indigenous philosophers with the Western European history of
the
ideas.”’52 What his work speaks to only subtextually is how to encourage
development of a critical mass of Aboriginal theorists undertaking these sorts of
projects. One might, of course, simply try to assume away the issue in various ways:
by assuming that this critical mass is already developing because of the presence of
some prominent Aboriginal intellectuals in Canadian academia, by presuming that the
macrolevel expansion of Aboriginal post-secondary education will likely lead to such
a development, or by imposing the challenge solely on Aboriginal communities
themselves. But there are both macro- and microlevel educational policy questions
implicit in these needs. Significant educational policy work ought to be undertaken to
determine ways of assisting Aboriginal communities and Aboriginal individuals in
“147 Dale Turner, This Is Not a Peace Pipe: Towards a Critical Indigenous Philosophy (Toronto:
University of Toronto Press, 2006) at 73 [Turner, This Is Not a Peace Pipe].
“148 Ibid.
“149 As Turner eloquently puts it, “The fact that our ways of understanding the world are not worthy
of equal participation in a dialogue over the meaning and content of our rights is itself a form of
inequality” (ibid. at 26). For his discussion of how some Aboriginal intellectuals have enlarged the
intellectual endeavour, see e.g. ibid. at 27.
150 For some interesting discussion of necessary changes in academia, see generally Devon Abbott
Mihesuah & Angela Cavender, Indigenizing the Academy: Transforming Scholarship and
Empowering Communities (Lincoln, Neb.: University of Nebraska Press, 2004). See also Turner, ibid.
For an insightful recent analysis of Aboriginal rights and federalism, see Jean Leclair, “Federal
Constitutionalism and Aboriginal Difference” (2006) 31 Queen’s L.J. 521.
151 Ibid. at 103.
152 Ibid. at 9, 88ff.
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reaching a critical mass of Aboriginal theorists with the experiences and education
necessary to participate powerfully in cross-cultural theorizing.
Some of this work can, indeed, take place in microlevel contexts. There is a
particular role for institutions of legal education, where Aboriginal persons are finally
becoming a growing presence. Legal education has the ever-present potential of
preparing individuals not just to become practitioners of law-valuable though that
is, and particularly so when acting in defence of oppressed communities-but also
doers and thinkers of justice. Cross-cultural theorizing makes particular demands on
the legal academy that will significantly affect the thinking of many leaders, both
non-Aboriginal and Aboriginal. To incorporate cross-cultural theorizing into scholarly
research agendas and thereby increase the capacity for cross-cultural theorizing, law
schools can open dialogical spaces by engaging in projects of legal transsystemia’53
or, even more specifically, by developing programs for the study of indigenous legal
traditions.’54 At a more specific level, of course, there is also the potential for courses
that specifically address theoretical dimensions of Aboriginal rights.’55
We can turn to a different context for which the methodology of cross-cultural
engagement may have implications. In recent debates on judicial appointments to the
Supreme Court of Canada, the presence of an Aboriginal justice on the Court has
been perceived in many circles as an increasing imperative.’56 In 1996, the Royal
Commission on Aboriginal Peoples recommended that “the Supreme Court of Canada
should include at least one Aboriginal member” and that “a requirement that one of
the justices be Aboriginal should be the subject of a constitutional amendment.”‘5 7 A
paper published by the Indigenous Bar Association in 2004 also urged the creation of
an Aboriginal seat on the Supreme Court, arguing for this in terms of legal pluralism
` See supra note 5.
154 The suggestion is implicit in John Borrows’ writing. See e.g. John Borrows, “Creating an
Indigenous Legal Community” (2005) 50 McGill L.J. 153.
1N To my knowledge, the University of Saskatchewan College of Law is the only law faculty in
Canada with a course specifically on moral or political theory and Aboriginal rights, and this is only a
special topics offering, not yet regularized within the curriculum. This uniqueness persists despite the
presence of individuals on a number of faculties to whose research interests such a course would
presumably be relevant.
156 This is in keeping with the growing awareness of the central role of the Supreme Court in
guiding reconciliation between Canada and its Aboriginal peoples. Aboriginal representation on the
Supreme Court of Canada is arguably a natural extension of what Ian Peach wisely captured as a shift
in concern surrounding the appointment process from a focus on federalism to one on the Charter and
resulting judicial activism. See Ian Peach, Legitimacy on Trial: A Process for Appointing Justices to
the Supreme Court of Canada (Regina: Saskatchewan Institute of Public Policy, 2005) at 2-3. We also
see an emerging discussion on the importance of representation. See e.g. Isabel Grant & Lynn Smith,
“Gender Representation in the Canadian Judiciary” in Ontario Law Reform Commission, Appointing
Judges: Philosophy, Politics and Practice (Toronto: Ontario Law Reform Commission, 1991) 57.
157 Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal
Peoples, vol. 5 (Ottawa: Supply and Services Canada, 1996) at 129.
2007] D.G NEWMAN- CROSS-CULTURAL THEORIZING OFABORIGINAL RIGHTS 755
and the representation of indigenous legal traditions on the Court.’58 The Canadian
though not comfortable with advocating specifically for an
Bar Association,
Aboriginal seat on the Court, has recently urged that “the Minister of Justice give
particular focus to the appointment of Aboriginal judges to appellate courts including
the Supreme Court of Canada.”‘ 59
If part of the task the Supreme Court must undertake is to engage in cross-cultural
theorizing, there are some additional arguments in favour of Aboriginal representation
on the Supreme Court. That said, Aboriginal representation may not be the only way
in which the Court can successfully foster the kind of dialogue required, and I do not
presume here to offer a determinate view on the much more complex question of
judicial appointment. The Court might also benefit from the presence of non-
Aboriginal judges attuned meaningfully to Aboriginal world views, or from attempts
to further engage with Aboriginal world views.’6
Finally-though one could draw out other implications as well, and the point of
this article is to present a general theory with many different possible applications
the Court must
rather than to argue so much for these specific implications
contemplate its jurisprudence carefully in terms of how it promotes or discourages
cross-cultural dialogue on Aboriginal rights. The recent approach in Marshall is that
“[t]he Court’s task in evaluating a claim for an aboriginal right is to examine the pre-
faithfully and
sovereignty aboriginal practice and
objectively as it can, into a modem legal right.”” This approach superficially takes
account of Aboriginal perspectives. But the Court could design a specific multi-
faceted mode of engagement along the lines of the methodology I argued for in Part
II. In so doing, the Court could begin to depart from the view that Aboriginal
perspectives have an alterity that must be translated into “modem” discourse whereas
non-Aboriginal perspectives need no translation. The perpetuation of such attitudes
makes a doubtful contribution to the fostering of cross-cultural dialogue.
that practice, as
translate
“‘ James C. Hopkins & Albert C. Peeling, “Aboriginal Judicial Appointments to the Supreme Court of
Canada” (Paper prepared for the Indigenous Bar Association, 6 April 2004), online: Indigenous Bar
2 0to% 2 0the% 2 0
Association
of Judges to the Supreme Court of Canada: Past, Present, and Future” in Canadian Association of Law
Teachers Special Committee on the Appointment of Judges, Judicial Selection in Canada: Discussion
Papers and Reports (North York, Ont.: Canadian Association of Law Teachers, 1987) 1 at 21-25.
159 Canadian Bar Association, Federal Judicial Appointment Process (Ottawa: Canadian Bar
Association, October 2005) at 10, online: Canadian Bar Association
160 These might include a variety of possible approaches, ranging from hiring law clerks with
substantial exposure to Aboriginal world views, to employing permanent staff who bring perspectives
to undertaking specific engagement exercises with Aboriginal
on Aboriginal world views,
communities.
161 Supra note 4 at para. 48.
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We have, in this article, seen only some gestures toward a broader theory of
cross-cultural theorizing. Its practice in the Aboriginal rights context can fit within a
broader discipline of cross-cultural theorizing that is the subject of growing study and
the methodology of which I have tried, in some slight ways, to further. But cross-
cultural theorizing in the Aboriginal rights context will take place ultimately only
through very careful engagement, informed by deeper principles of cross-cultural
theorizing, with complex and challenging issues, and carried out by Aboriginal and
non-Aboriginal scholars, thinkers, and peoples. Successful cross-cultural theorizing
will take place best in the sort of conditions that we can all work further toward
developing in forms both more tangible and yet more unfolding. We have both
promises to keep and miles to go before we sleep, dreams to tell and dreams to live.
