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Residual Tensions of Empire: Contemporary Mtis Communities and the Canadian Judicial Imagination
Chris Andersen

Ce travail examine les structures judiciaires de laboriginalit des mtis, plus spcifiquement comment les tribunaux ont associ lauthenticit des mtis en tant que peuple autochtone, leur diffrence visible par rapport aux Canadiens non autochtones, et dmontre aussi comment les tribunaux ont utilis des structures racistes de la culture qui dlimitent laboriginalit des mtis dans le temps et dans lespace. Ce travail se penche aussi sur la possibilit dlaboration de la structure de droits culturels qui manent de ce processus, et numre certaines limites quengendre lutilisation de la culture comme tant la base des droits autochtones. a culture est ensuite juxtapose une conception de laboriginalit qui se base plut!t sur la socialit et enfin, lutilisation du concept de socialit est soulign afin de dmontrer comment on peut dfinir les droits autochtones de manire ne pas exclure ses communauts urbaines contemporaines, auxquelles appartiennent dsormais plus de deux tiers des mtis au Canada.

The standard which a practice custom or tradition must meet in order to !e recogni"ed as an a!original right is not that it !e distinct to the a!original culture in #uestion$ the a!original claimants must simply demonstrate that the practice custom or tradition is distinctive% & tradition or custom that is distinct is one that is uni#ue ' (different in )ind or #uality$ unli)e* + Concise "xford #ictionar$ supra, %%% -y contrast a culture that claims that a practice custom or tradition is distinctive ' (distinguishing characteristic* ' ma)es a claim that is not relati.e$ the claim is rather one a!out the culture/s own practices customs or traditions considered apart from the practices customs or traditions of any other culture% %. .. &an der 'eet 1001 para% 21

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Chris Andersen

Can indigenous communities !e indigenous without !eing different7 If so what would this loo) li)e in practice7 If not how will these communities sustain themsel.es in the face of a Canadian nation8state focused on protect 8 ing indigenous difference at the cost of their collecti.ity7 The legacy of %. .. +parro, +1009, the first su!stanti.e :upreme Court &!original rights case after the Constitution Act, -).( set in motion two possi!le paths for protect8 ing &!originality% The first protected &!original distincti.eness , creating an autonomous space within which &!original collecti.es could e.ol.e as self8 go.erning entities to meet their needs as contemporary communities and nations%1 In other words it protected &!original autonomy% The second pro8 tected only those cultural practices that most non8&!originals would not themsel.es engage in +;o.inelli 2992,% That is to say it protected &!original difference% :i< years later through the infamous (distincti.e to an integral culture* test penned in %. .. &an der 'eet +1001, the :upreme Court chose decisi.ely to protect &!original difference% In doing so it reaffirmed the central place of racial difference ' and thus colonialism ' in the =udicial imagination and in Canadian society% Racial difference constituted a founding modality of order +>oucault 102?, for all colonial nation8states% Canada was no e<ception% @is8 torically racial difference ser.ed as a lynchpin for categori"ing citi"enry and for distri!uting property rights and wealth in post81A29 Canada +Tough 1001,% To the e<tent that racial difference continues to function as a dominant orient 8 ing discourse in important contemporary cases such as &an der 'eet there is nothing (post* a!out Canada/s colonialism% These residual tensions of empire continue to mire relations !etween indigenous communities and the Canadian state% &lthough &an der 'eet dealt specifically with >irst 3ations issues the power of precedent 2 in =udicial decision ma)ing is such that it sets the !ounda8 ries within which most future Mtis rights cases ' the topic of this essay ' are decided% These issues are e<plored directly through the .arious le.els of a leading Mtis rights court case %. .. 'o,le$ +1000 2999 2991 299?,% The argument anchoring this essay is that the danger of emphasi"ing racial difference rather than distincti.eness ' especially in the courts ' is that it re#uires &!original communities to emphasi"e historical identities that offer only a partial glimpse of who they were% &nd although all historical accounts may !e considered partial the =udicial illumination of indigenous histories in.ol.es far more shadow than light% The interpreti.e !oundaries and percep 8 tual circumscriptions encourage distortions stereotypes and partial histories which through =udicial pronouncements are gi.en the status of truth% This forces communities to chase historical shadows that ne.er really e<isted% Moreo.er it limits how contemporary indigenous communities are permitted to !e indigenous%

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In theoretical terms this essay is premised on the idea that there is no such thing as a (core* 3ati.e identity ' or at least not one that means the same thing to all or e.en most 3ati.e people% Those searching for a sta!le nucleus su!scri!e to what is commonly )nown as an (essentialist* conception of iden 8 tity% Essentialists !elie.e that we can point to an element or core of elements and say (ThereB /hats what ma)es &!original people &!original* +a spiritual connection to (the land* is a usual suspect in these arguments,% The pro!lem with essentialist conceptions is that they assume a !road agreement a!out which elements are the (correct* ones to point to and they then posit that these elements possess a fairly sta!le unchanging character since a chang ing character would lead to a whole series of disagreements a!out what constitutes change or whether sufficient change has actually occurred to warrant discussion etc% @ere identity and issues of identification are used in an e<plicitly anti8 essentialist fashion% &nti8essentialist understandings of identity are rooted strongly in the idea that social reality is constructed and thus that identity is not fi<ed sta!le or unitary !ut is contingent on and anchored in socially con 8 structed and empirically specifia!le material and discursi.e !oundaries% >urthermore identities are constructed in opposition to other identities a pro 8 cess that occurs .is8C8.is a group/s position within a hierarchy of social power% In this day and age (identities are ne.er unified D!ut areE increasingly fragmented and fractured$ ne.er singular !ut multiply constructed across different often intersecting and antagonistic discourses practices and positions* +@all 1001 F,% This is partly why protecting autonomy or sociality per se rather than protecting difference is so crucial to ensuring the sur.i.al of 3ati.e communities especially in light of the radical impact of industrial and consumer capitalism on the day8to8day practices of these communities !ecause it lea.es open the possi!ility of (intersecting and antagonistic discourses practices and positions* +i!id%,% This essay is di.ided into four su!stanti.e sections and a conclusion% The first section positions the courts as a raciali"ed field one instance of a !roader interloc)ing we! of social fields +-ourdieu 1002 1002$ -ourdieu and Gac#ant 1002,% It emphasi"es that the constitution of =udicial decisions results from !oth internal =udicial practices and larger (whitestream* ? understandings of &!originality% The second e<amines =udicial constructions of &!originality emphasi"ing how &!original authenticity is conceptuali"ed as difference and there!y channelled through imperialHracist constructions of culture that attempt to fi< and preser.e &!originality (in ancient form* +see Magnet 299?,% This section focuses on the contrast !etween distincti.eness and difference through a =u<taposition of culture and society% :ociety and sociality are pre sented as .ia!le alternati.es to protecting &!original cultures !ecause rather than re#uiring the Mtis to pro.e their difference it simply re#uires them to pro.e their collecti.ity% The third section focuses specifically on Mtis rights


Chris Andersen

e<amining how Mtis indigeneity is raciali"edHdifferentiated in the conte<t of time and space and in the way in which the authenticity of the Mtis as indig 8 enous people is positioned .is8C8.is that of >irst 3ations communities% It also e<plores the specific constructions of cultural rights that emanate from this process =u<taposing them with alternati.e formulations% The fourth and final section focuses on the issue of distincti.eness .ersus difference in the conte<t of ur!an &!original communities% This conte<t ser.es as a useful foil for e< 8 ploring how the =udicial logic of protecting difference !rea)s down precisely !ecause ur!an communities are thought to !e #uintessentially non8&!original spaces and as such are clearly located outside the !oundaries of =udicial con 8 structions of &!originality% Moreo.er it is particularly apt in a Mtis conte<t !ecause the Mtis population is !ecoming increasingly ur!an +see :tatistics Canada 299?,% ;4:ITI43I3I T@E C&3&5I&3 C46RT: &: & R&CI&JIKE5 >IEJ5 Canadian courts are fi<ated on finding the (essence* of indigenous differ ence% &s a result they effecti.ely reproduce Canada/s cultural and material hierarchies !y free"ing indigenous identities in time and space% Commenta tors e<ploring these hierarchies usually focus on the relationship !etween colonialism and (Canadian law%* @owe.er it is analytically useful to distin 8 guish !etween the =udicial and legislati.e spheres of Canadian law% 4n the one hand !oth are colonially inscri!ed and !oth are !ac)ed !y the threat of state coercion% Conse#uently !oth act as structures of domination +see generally Tully 2999,% 4n the other hand courts and legislatures constitute distincti.ely different social fields% The courts are distinct from the legislature in that their aspirations to rationality and logical positi.ism re#uire them to e<plain and =ustify their decisions using internal and +largely, autonomous logics and procedures% These e<planations and the =ustifications used to ground them pro.ide an opportunity to study the fa!ric out of which =udicial discourses of &!originality are wo.en% Ghat does it mean to understand the courts as a social field7 :ocial fields are organi"ed arenas of action wherein competing actors !e they indi.iduals or institutions struggle to legitimi"e their own .iew of the social world and to compel its adoption !y the other actors in the field +-ourdieu 1002,% In the =udicial field .arious actors struggle to ensure that their interpretation of the law is ultimately .ictorious and comes to comprise the actual su!stance of (Jaw%* :ocial fields are characteri"ed !y a num!er of features that ma)e them sociologically attracti.e% >irst they are hierarchically organi"ed: their internal struggles do not occur on a le.el playing field% :econd their actors sincerely !elie.e in the field/s legitimacy: they !elie.e in its ultimate .alue e.en if they disagree with its present form% Third struggles are focused around the

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attainment of resources considered .alua!le to the field +-ourdieu refers to these resources as (capital*,% >inally and most importantly for our purposes the struggles in the social field are shaped according to internal rules and logics , irreduci!le to those of other fields%F 3ow there is nothing startlingly original a!out arguing that courts are sites of conflict and struggle% ;opular tele.ision and media reports depicting court 8 room !attles and !ac)room negotiations !eam these images into our households on a nightly !asis% Ghat is interesting though is the degree to which such depictions emphasi"e the integrity of the prosecutors and their commitment to a set of rules that are said to comprise (the Jaw%* The =udicial field/s power and legitimacy stem from its stated a!ility to sym!olically transform social conflicts into technical legal issues !y the e<ercised integrity and the use of legal rules +see 5wor)in 10A1,% In fact these are crucial to its appearance of neutrality in transforming its decisions from acts of na)ed .iolence to legitimate acts of rationality and o!=ecti.ity +-ourdieu 10A2 A2F,% (The transformation of irreconcila!le conflicts of personal interest into rule8 !ound e<changes of rational arguments !etween e#ual indi.iduals is constituti.e of the .ery e<istence of a speciali"ed !ody independent of the social groups of conflict* +i!id% A?9,% -ut -ourdieu suggests that if a large part of (Jaw/s* presumpti.e certainty and autonomy is deri.ed from such claims we misrecogni"e how relations of ine#uality are +re,produced through (law%* >or e<ample despite the pretensions of legal positi.ism L &!original =urisprudential criti#ues ma)e it clear that the rationalities underpinning the :upreme Court/s numerous &!original rights decisions are shot through with (e<tralegal* racial grammar% This grammar although rarely ac)nowledged in court decisions plays an important role in go.erning &!originality% It sets a range of tolera!le .ariation within which the content of &!original rights are constructed% In turn it shapes the =udicial rationalities that are e.entually translated into pu!lic policy 1 and against which &!original communities often struggle%2 There is nothing natural a!out the racial grammar of court decisions% Ji)e all manifestations of race and all social fields it has a history% Race owner8 shipHe<ploitation and legal position were part of the comple< scheme of categori"ation that proliferated during the eighteenth and nineteenth centuries particularly in colonial geographies% Race in this instance was positioned as a strategic coordinate for understanding one/s relationship to property and ownership and it reflected changes in the position and utility of (Jaw%* This is e.idenced in such historical legal fictions as terra nulliusA +see Tully 100? 100A,% :ince eighteenth8century law was originally meant to go.ern relations !etween things +e%g% possession and e<change, indi.idual status +prior to the arri.al of unencum!ered indi.idualism, was relati.ely unimportant%0 @owe.er as e<ploitation of la!our superseded physical domination in the form of sla.ery the appropriation of this la!our was sanctioned through similar racial


Chris Andersen

ta<onomies now understood in terms of intrinsic indi.idual8le.el physical characteristics +Iuillaumin 10A9 FA,% Thus (the a!ility or ina!ility to e<er 8 cise one/s rights came to !e e<plicitly ascri!ed to Mnature / and somatic characteristics came to occupy a central %%% place in the practical and legal determination of the rights of social groups* +10A9 F0,% E.entually the no8 tion of race !ecame a natural legal category alongside age se< and so on% The historical processes that led to the formation of deeply held stereotypes a!out &!original peoples penetrated +and were penetrated !y, =udicial and legislati.e processes to such an e<tent that the racism e.ident in earlier colo8 nial relationships was formali"ed and codified in -ritish and +later, Canadian common and statute law there!y esta!lishing the e.entual !oundaries of &!o 8 riginal rights% @ence if we !roadly define rights as entitlements &!original people were a!le to access certain )inds of entitlements !ased on who the court percei.ed ' and wished ' them to !e% This is no different in form today than it was centuries ago$ and if it differs in content the difference is one of degree rather than )ind% 6ltimately the same processes and rationalities em 8 !edded in historical court decisions continue to operate in contemporary =udgments$ in other words the Canadian courts operated and continue to op 8 erate as a raciali"ed field% Importantly their operation as a raciali"ed field means that courts and their cases set in motion +or maintain the centrifugal force of, a particular episteme19 for percei.ing indigeneity% This episteme is shaped !oth !y contemporary &!original participation in the court cases and more importantly !y the !oundaries of precedent set during early colonial relationships +see -ell and &sch 1002,% 6ltimately despite their pretensions the courts continue to produce interpretations that cling desperately to notions of (long ago and far away* &!original culture+s,% This is not surprising% Canada is a colonial nation8state in which cultural difference plays a constituti.e role in contemporary constructions of &!original identities +5enis 1002$ :aid 100?$ :toler 100L$ Noung 100L, and the a!ility of contemporary mem!ers of indigenous communities to li.e contemporary li.es is washed away in a flood of =udicial decisions that shine their light only on practices that are manifestly pre8modern% 6ltimately courts ' and =udges in particular ' play !oth creator and curator fashioning and preser.ing what they percei.e to !e these strands of authentic &!originality% There are numerous e<amples to support the contention that Canadian courts operate as a raciali"ed field% &sch and -ell +100F, illustrate the :upreme Court of Canada/s continued usage of (ci.ili"ed .ersus primiti.e* classification sys8 tems in discussing the low le.el of organi"ation of past &!original societies +&sch 2999 2992$ 5enis 2992,% >or e<ample the four8part test for esta!lishing &!original title set out !y the trial >ederal Court of Canada in the 4a5er a5e decision which was deeply immersed in this ci.ili"edHprimiti.e distinction is (distorted !y ethnocentric reasoning and the misinterpretation of the

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nature of culture* +&sch and -ell 100F L2F$ also see &sch 2999,% &ddition8 ally -arsh and @enderson +1002, ela!orate the difficulty of attempting to determine cultural centrality +i%e% to define a culture/s central traits, gi.en the ine<trica!ly interwo.en character of culture% The fact that the courts e.en at 8 tempt to catalogue historical indigenous cultures is they argue the result of deep8seated racist attitudes a!out the assumed simplicity of historical &!o 8 riginal societies% In a way the pro!lem goes e.en deeper since it seems that the Canadian courts cannot decide which sets of indigenous practices are cen 8 tral to a gi.en culture at any gi.en point +see &sch 2999 1?2'?,% The :upreme Court of Canada appears to treat &!originality in much the same way as a 6%:% :upreme Court =ustice understood pornography when in 101F he said that he couldn/t define it !ut )new it when he saw it + 6acobellis .% "hio 101F,% 3ow fields do not simply (act* in particular ways% Rather their outcomes are produced in the wa)e of internal struggle% Those holding dominant posi 8 tions within the field attempt to maintain the status #uo !y controlling the pace and form of the field/s change while those in more marginal positions attempt to alter it radically% This struggle !etween incremental and rapid change often wor)s to o!scure the !oundaries of the field +i%e% what sorts of issues are considered germane and which practices are deemed appropriate,% In the case of the =udicial field a )ey figure in attempting to maintain sta!ility is the =udge% &n important argument here is that insofar as =udges act as the final ar!iters in translating social issues into legal ones !y rendering decisions these decisions result from the =udges/ location in !oth their professional and their personal communities% :o although precedent is an important factor in how court cases are decided it disciplines rather than determines the outcome of =udicial decisions +see Mac)lem 2991,% Thus in addition to the use of precedent +which may !e .ague open to multiple lines of interpretation or e.en non8e<istent, =udges ma)e decisions !ased on what they understand to !e a (fair* outcome% In other words they fulfill an important interpretati.e tas) !y putting meat on the !ones of e<isting case law or !y interpreting legislati.e intent% In any case since &!original +and specifically Mtis, rights cases are in their infancy there is little precedent upon which to !ase decisions% Conse#uently =udicial discretion !ecomes all the more important in shaping the form and content of &!original rights and in the process in reconfiguring the relationship !etween &!original communities and the Canadian state% &n additional feature of social fields mentioned earlier is that their actors generally !elie.e in its o.erall sta)es% >or e<ample a successful lawyer who fails to !elie.e in the .alue of law is rare% This is !ecause of what ;ierre -ourdieu refers to as their habitus% 4ne/s habitus is the result of childhood and professional sociali"ation e<periences% It sets the parameters within which we normally act and importantly it is (pre8reflecti.e* +-ourdieu 1022,% Thus when agents ma)e decisions they do so in a calculating manner !ut these


Chris Andersen

calculations ta)e place within pre.iously esta!lished perceptual !oundaries% :imilarly when =udges read a te<t +any te<t, certain meanings (attach* them8 sel.es to the reading as a result of their reader/s habitus +see generally -ourdieu 1002 1022$ also >ish 10AA,% In this sense rather than following rules =udges +li)e all of us, act according to an (em!odied understanding* +Taylor 100L,% Thus they approach te<ts +again as we all do, with a circumscri!ed capacity to understand the te<t/s meaning+s,% In a colonial nation8state such as Canada dominant (whitestream* assumptions a!out race and culture attach themsel.es to =udicial readings of legal te<ts pertaining to &!original issues% The ne<t section e<plores this issue in greater detail% &-4RIII3&JITN &35 T@E C46RT:

Ghen &!original grie.ances are !rought !efore the courts they are translated into #uestions a!out rights% &!original rights are legal rights that go.ern the constitutional relationship !etween &!original peoples and the Canadian Crown +:lattery 2999 10A,% The contemporary legal rights of the Mtis +or at least those that ha.e !een recogni"ed thus far, are recogni"ed in section ?L of the Constitution Act, -).(7 and !ecause (une<tinguished &!original rights %%% Dgi.eE rise to enforcea!le legal o!ligations* +Ii!son 1001 22?, determining the !asis and scope of these rights pro.ides us with an opportunity to !etter understand their rele.ance for contemporary Mtis communities% Ge need not spend much time descri!ing the similarities and differences of the different classes of rights 11 as it is clear that the recognition of contemporary Mtis constitutional rights is still in its infancy and falls s#uarely within the am!it of site8specific rights 12 +see #elgamuu5, .. 4ritish Columbia 1002,% Two ma=or cases articulate the purpose and framewor) for interpreting sec8 tion ?L rights: %. .. +parro, +1009, and %. .. &an der 'eet +1001,% These cases cast a large shadow o.er %. .. 'o,le$ and produce the episteme within which the 'o,le$ court !ounds Mtis rights% -oth attempt to preser.e &!originality !ut their conceptions of accepta!le &!originality lead them down radically different paths% 4ne path potentially allows for a space within which &!original communities can decide for themsel.es what &!originality means +autonomy, while the other see)s to preser.e it in its (ancient* +different, form +see Magnet 299?,% The difference !etween preser.ing autonomy and preser.ing difference is integrally important to how 3ati.e communities ' ur!an communities in particular ' are percei.ed as legitimately &!original and therefore as eligi!le to recei.e the protection re#uired to grow and e.ol.e in their relationships with the !roader Canadian society%

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In %. .. +parro, +1009, the :upreme Court stated e<plicitly that (the phrase Me<isting &!original rights/ must !e interpreted fle<i!ly so as to permit their e.olution o.er time %%% Clearly %%% an approach to the constitutional guarantee em!odied in s% ?L+1, which would incorporate Mfro"en rights/ must !e re=ected* +1009 121,% &chie.ing this interpreti.e fle<i!ility re#uired that section ?L+1, rights !e construed in a purposeful 1? way which allowed for a generous li!eral interpretation of constitutional wording +i!id% 120,% Moreo.er comprehending &!original rights through the lens of section ?L demanded that =udges !e (sensiti.e to the a!original perspecti.e itself on the meaning of the rights at sta)e* +i!id% 1A2,% %. .. +parro, was the first :upreme Court of Canada case to apply princi8 ples of constitutional law directly to &!original rights$ and perhaps predicta!ly it raised as many #uestions as it answered% 4f particular rele.ance here is -ell/s +100A, #uery written as though &an der 'eet had not yet transpired: (Is +parro, a precedent for re=ecting the process of free"ing &!original rights$ that is does +parro, re=ect limiting contemporary &!original rights to the e<ercise of practices at the date so.ereignty was asserted or does adoption of the interpreti.e principles in +parro, call for recognition of more abstract fundamental rights which can !e e<ercised in modern ways +100A F?'F,7 1F 4nly si< years later the :upreme Court of Canada responded with %. .. &an der 'eet +1001, a decision that shredded the li!eral constitutional principles applied in +parro, and left no dou!t a!out the place of &!original rights and !y association &!original societies in the imagination of the :upreme Court% The &an der 'eet court argued that although (the appellant is correct to suggest that the mere e<istence of an acti.ity in a particular &!original community prior to contact with Europeans is not in itself sufficient foundation for the definition of &!original rights the position she would ha.e this Court adopt ta)es s% ?L+1, too far from that which the provision is intended to protect. 1L :ection ?L+1, it is true recogni"es and affirms e<isting &!original rights !ut it must not !e forgotten that the rights it recogni"es and affirms are Aboriginal* +%. .. &an der 'eet 1001 1A0'09,% The o!.ious #uestion that arises from this statement is Ghat e<actly was the pro.ision intended to protect7 The general wording of +parro, allowed the courts to address this #uestion in one of two ways: that it was intended to protect the collecti.ity of indigenous societies or that it protected isolated elements of their culture. &an der 'eet chose the latter% The pro!lem as the &an der 'eet court characteri"ed it was how to (define the scope of s% ?L+1, in a way which captureDdE both the &!original and the rights in &!original rights* +1001 109$ emphasis in original,% &fter all &!original rights cannot !e interpreted in the same manner as more a!stract li!eral rights since !y their .ery characteri"ation as &!original they are not uni.ersal% Responsi!le fulfilment of section ?L must therefore focus on deciding the correct characteri"ation of


Chris Andersen

the claim +1001 292, and determining whether the practice custom or tradition was (integral to the distincti.e culture of the &!original group claiming the right* +i!id% 291,% Ju<taposing &an der 'eet with +parro, demonstrates the disparity in logic !etween the original trac)s laid down in +parro, and their radically narrowed interpretation in &an der 'eet % In gi.ing su!stance to the meaning of &!origi8 nal rights the +parro, court applied general principles of constitutional law to gi.e !road protection to &!original societies% Importantly these general principles made comparati.ely little mention of protecting isolated elements of cultural distincti.eness% >or e<ample (DtEhe e.idence re.eals that the Mus#ueam ha.e li.ed in the area as an organi9ed societ$ long !efore the com8 ing of European settlers and that the ta)ing of salmon was an integral part of their lives and remains so to this day* + %. .. +parro, 1009 121$ emphasis added,% >urther when the +parro, court introduced the notion of cultural distincti.eness it was as an aspect of this &!original society: (D>Eor the Mus#ueam the salmon fishery has always constituted an integral part of their distincti.e culture %%% The Mus#ueam ha.e always fished for reasons connected to their cultural and ph$sical sur.i.al* +i!id% 12L$ emphasis added,% >urther the +parro, court argued that section ?L+1, rights (are rights held !y a collec 8 ti.e and are in )eeping with the culture and existence of that group* +i!id% 1A2$ emphasis added,% In other words there is an argument to !e made that the relationship !etween &!original communities and the Canadian state en.isioned in +parro, is largely silent on the role of the constitution in protecting indigenous culture qua culture7 a li!eral interpretation of the references to the cultural distincti.eness of &!original communities should !e understood as part of a larger discussion a!out the o.erall sur.i.al of these societies% Con.ersely the &an der 'eet court gained the (necessary specificity* +1001 para% 29, re#uired to characteri"e &!original rights correctly !y conflating societ$ with culture% :pecifically in the space of two do"en paragraphs Jamer CJ completed the slide from society to culture !y mo.ing from a discussion a!out the importance of (prior occupation* +1001 10L82, to the importance of (traditional law* and (traditional customs* +10A'0, then to the (distincti.eness* of (&!original societies occupying the land* +100, to identifying the ( practices, customs and traditions which made those societies distincti.e* +299$ emphasis added, and finally to (identifying those traditions customs and practices that are integral to distincti.e &!original cultures* +299$ emphasis added,% 11 Conflating society with culture is not a mista)e uni#ue to the Canadian courts% The pro!lem of society as >ris!y and :ayer +10A1, suggest has (pro.ed too grand an a!straction !y far for modern sociological tastes* +10A1 121, and the more recent a!sence of sustained dialogue a!out society has resulted in its conflation with such sociological terms as (community * (state * (nation * and e.en (country* +see 5enis 100? 2L1'2 219'2,% Recent sociological

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arguments go so far as to suggest that we should do away with the concept of (society* altogether +see -auman 1002$ Iiddens 1009,% It may !e then that situating society as distinct from community state nation country or e.en culture is merely a conceit of historical sociology +here we might thin) of the wor) of Emile 5ur)heim, in which case it does not much matter whether the courts use society or culture% 4n the other hand conflating society with the cultural codes that arise within it has serious conse#uences if !y (society* we mean a distinct moral and political entity that shapes social relations +see 5enis 100? 211'2,% -ecause if we agree that society rather than culture is the appropriate entity within which to ground the rights of &!original people +as the +parro, decision argua!ly permitted, then it follows that which cultural practices they engage in or e.en how those practices are framed +for e<ample attempting to present differences !etween cultural social or economic practices, is relati.ely unimportant% The importance of constitutional protection lies instead in protecting indigenous societies per se not protecting a particular form of society% Michael &sch +2999 1??, elo#uently addresses this issue: (&!original rights ought not to !e determined on the !asis of similarity or difference with colonial culture% &!original rights are defined in law as arising from the fact that &!original societies were not e<tinguished !y the mere presence of colonists% Nes they were distincti.e% -ut certainly the salient fact is not that &!original people were distincti.e !ut that they were here li.ing in organi"ed societies %%% Therefore their rights should flow from that fact and not from whether or not they were distincti.e culturally%* &sch argues that the Canadian courts !ase &!original rights in culture rather than in society in order to a.oid discussion of the political nature of these rights% -ut what made it so easy for the courts to percei.e &!original rights as cultural rights7 If their focus on culture wasn/t entirely innocent neither was it purely intentional% The representations of &!originality generated !y =udges lawyers and other Canadians ' whether &!original or not ' are shaped !y Canada/s colonial historiography and in particular how we thin) a!out the relationship !etween culture and indigenous difference in this conte<t% Certainly the differences emphasi"ed !etween cultures represent crucially important demarcation mar)ers for how whitestream societies percei.e indigeneity !ut they do more than =ust that% Colonialism engenders an (enunciati.e po.erty* +>oucault 1022 129, which attri!utes culture to (the other * while Gestern whitestream societies remain !lithely o!li.ious of their own culture +Iold!erg 100?$ Noung 100L,% The )inds of hierarchies em!edded in the span of colonialist relationships in Canada limit the range of statements considered competent or reasona!le to those who fi<ate on indig 8 enous difference so that (culture * when tal)ed a!out in the conte<t of indigeneity does not simply distinguish it su!ordinates +see generally 5errida 10A1 F1,%


Chris Andersen

It follows that the importance of the cultural differences inscri!ed in Cana8 dian =udicial decisions such as the two presented here stems not =ust from the differences they are thought to manifest !ut from the framing of those differences as (cultural%* Contemporary =udicial discourses in particular are reminiscent of the nineteenth8century anthropological de!ates that focused on the di.ide !etween (great ci.ili"ations* and (primiti.e societies * or (warm* and (cold* societies respecti.ely +5enis 2992 111,% In this scenario warm societies ha.e politics$ cold societies ha.e (culture%* The Canadian courts/ reproduction of &!original (cultural* communities effecti.ely anthropologi"es them shearing from academic thought and popular imagination the political and economic conte<ts within which these societies produced their culture +see Gilmsen 10A0 <ii, and pushing them completely outside the (flow of history* +Gilmsem 10A0 A$ Golf 10A2,% :temming from its monolithic conception of indigenous culture the :u8 preme Court of Canada ultimately narrows the .ast and unwieldy cacophony of sym!ols institutions and material practices which allow &!original peo ple to !e social in contemporary Canada into a fi<ed and isolated set of cultural practices% This =udicial la!our is reminiscent of the tendency of 1029s &meri 8 can social scientists to essentiali"e !lac) ghetto culture relying on such (a narrowly concei.ed definition of culture* that they tended to use (!eha.iour and culture interchangea!ly* +Pelley 1002 11,% Thus culture was treated as though it was simply an o!ser.a!le set of !eha.iours$ (DtEhey assumeDdE that there is one identifia!le ghetto culture and what they o!ser.ed was it* +i!id% 22$ emphasis in original,% >or Pelley this essentiali"ation constructed !lac) ghetto culture as either an e<pression of pathology or a coping mechanism created to deal with racism and po.erty +i!id% 12,% The more rele.ant issue here is that ,hat counts as culture seems less important than ,ho decides what culture is% More on this !elow% 4!.iously culture includes certain lifestyles and practices while e<cluding others$ rules for inclusion and e<clusion form the !asis of how identities are sustained +@all 1001 1,% The important #uestion here though is what constitutes the appropriate lens through which to percei.e such practices% To e<plore this issue let me pro.ide an e<ample I use with my introductory 3ati.e :tudies class +I/ll come !ac) to this later in the fourth section%, &t the !eginning of the uni.ersity semester I present a scenario to the students to get them to thin) a!out what it means to !e (traditional%*
There is a 218year8old 3ati.e youth Jonas% @e grew up !etween the city and a small northern &l!erta community% Jonas/s uncles are trappers and loggers$ he is the first in his family to attend uni.ersity% &fter fi.e years of uni.ersity he !eats the odds and lands himself a fairly well8paying =o! with a local 3ati.e8run media organi"ation which caters to a largely &!original clientele% 3ow as it turns out his )o)um +grandmother, li.es in the same city as he does% :he mo.ed

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there se.eral years ago to get more accessi!le treatment for her dia!etes and her gout% :he is getting on in years !ut she is still fiercely independent e.en though she li.es alone now that mushum +grandpa, has passed on% 6nfortunately Jonas/s )o)um doesn/t ha.e !and status so has only her go.ernment pension to support her +which these days isn/t much,% To remedy this each wee) when Jonas .isits he !rings a little !it of food: sometimes flour and lard sometimes sugar and !a)ing powder sometimes condensed mil) or dry macaroni or e.en when he manages to .isit his family up north moose meat% @e )nows she can use these items !ut on such a low !udget they are lu<uries she simply can/t afford particularly the meat% @e doesn/t stop to thin) a!out why he/s doing it% It =ust feels right to him ' she/s his )o)um and he )nows she/s ha.ing a tough time and although she/s far too proud e.er to as) for anything he/s !een !rought up to !e responsi!le and to act for others% 12 @e .isits for a !it tal)ing in !oth English and Cree +he/s fairly fluent in Cree although his )o)um secretly shudders at his accent, and then he heads off to the local friendship centre where he .olunteers one day a wee) to teach =igging to a young dance troupe that/s getting ready to dance pu!licly for the first time at the upcoming Mtis >all >esti.al% Jonas doesn/t hunt much though he li)es to fish for pic)erel and when he man ages to .isit (home* he lo.es to two8step to his uncle/s !and at the local !ar% Gould you say this is a traditional person7

3ow whether the students thin) this is traditional !eha.iour is !eside the point% The purpose of the e<ercise is not simply to get them to thin) a!out what they ta)e to !e traditional !eha.iour !ut to decide where they draw their !oundaries% &necdotally +in my classes at least, 3ati.e )ids are usually more accepting of this !eha.iour as traditional% Con.ersely non83ati.e students are less sympathetic since many of them are a!le to (locate themsel.es* within at least part of this narrati.e% Clearly most non83ati.e students e.en thoughtful ones thin) that authentic indigeneity cannot !e authentic unless it is uni#ue or e<otic$ so attempts to demonstrate why we might thin) a!out the youth in the scenario as (traditional* flounder ' or at least are .iewed suspiciously ' to the e<tent that his acti.ities are seen as normal% 4!.iously the youth/s city of residence does not constitute what we might consider indigenous territory +though historically it was someone/s indigenous territory,% Net sharing and ta)ing care of others is integral to many indigenous cultures as is the importance of e<tended family$ although Jonas doesn/t thin) a!out why he does it ensuring his )o)um has enough to eat +and e.en pro.id 8 ing a little e<tra, is .ery important to him% @owe.er none of the acti.ities in this narrati.e ' perhaps aside from spea)ing Cree ' are something the courts would mo.e to protect% 3e.ertheless these practices whether !ringing food or teaching =igging are indigenous practices since they are grounded in the ethics that were and still are crucial to grounding the social relations of the community where Jonas/s e<tended family li.es% More importantly howe.er


Chris Andersen

they should !e considered indigenous practices !ecause they are grounded in the sustenance of an indigenous collecti.ity within the city itself% My point here is that practices ' whether indigenous non8indigenous or somewhere in !etween ' are grounded in particular ethical considerations a!out one/s place in the world a!out one/s relationship to self to (significant others * ac#uaintances and strangers and a!out material conditions% @owe.er in much the same way that ghetto culture was reduced to pathology and resistance in the earlier Pelley criti#ue =udicially constructed indigenous culture is reduced to (a fi<ed in.entory of traits or characteristics* +-arsh and @enderson 1002 1992, in which the central or (integral* traits are re#uired to remain static +a characteristic of (cold* societies,% In this instance according to =udicial thin)ing the distincti.eness of indigenous communities arises from their historical relationship to the land and the identifia!le practices they engage in on that land% Moreo.er with respect to the matter of Mtis indigeneity the 4ntario Court of &ppeal framed it in the conte<t of their relationship to (other &!original groups%* In this framing Mtis culture cannot stand on its own as legitimately indigenous !ut must !e e<amined through the lens of its >irst 3ations neigh!ours% &lthough re.ersed in the :upreme Court the time frame within which &!originality is located is pro!lematic for contemporary Mtis communities% In the ne<t section I shall e<amine the #uestion of &!originality and land use and tenure and its lin) to culture specifically in the conte<t of the Mtis% MQTI: &35 T@E C&3&5I&3 C46RT: To conte<tuali"e this discussion a!out the Mtis let us loo) at %. .. 'o,le$ +2991 299?, the recently decided :upreme Court of Canada/s Mtis &!o8 riginal rights case and its antecedent the 4ntario Court of &ppeal/s decision% 1A The facts of the case are as follows% & father and son shot a moose in the area of :ault :te Marie 4ntario% Jac)ing an 4ntario (outdoors card* or a moose hunting licence :te.e ;owley +the father, attached a tag to the carcass con 8 taining .arious pieces of information including his 4ntario Mtis &!original &ssociation registration num!er% Conser.ation officers in.estigated the ;owley residence and after determining that a crime had occurred they sei"ed some of the ;owleys/ hunting gear +principally the gun and moose carcass, and charged the ;owleys with hunting without a licence and unlawful possession of a moose under sections F1 and F2+1, of the ;ish and <ildlife Conservation Act, -))1 +%. .. 'o,le$ 299? paras% 2'1,% &lthough this case is enormously detailed I am specifically interested in two issues: how the ;owleys/ &!originality is characteri"ed and the types of rights that emanated from this characteri"ation% >irst we focus specifically on how the courts percei.e &!originality in time and space +and the place of

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Mtis culture in this spatial and temporal framewor), and how they percei.e the relationship !etween Mtis indigeneity and that of >irst 3ations% :econd the issue is presented as a =u<taposition of (cultural* rights with alternati.e ways of constructing the ;owleys/ hunting practice% This sets the stage for a mo.ement away from &!original culture+s, to that of &!original sociality or collecti.ity%

Capturing Aboriginalit$ in /ime and +pace >ollowing the path laid out in &an der 'eet the 'o,le$ courts concerned themsel.es with !oth prongs of the test for &!original rights: the correct characteri"ation of the right and whether it was integral to the distincti.e culture of the Mtis in the :ault :te Marie area% In this case although the pro.incial Crown argued that the correct characteri"ation of the right was the right to hunt moose +as opposed to other species of game, the :upreme Court of Canada upheld the practice as the right to hunt for food in general + %. .. 'o,le$ 299? paras% 29 L9,% Moreo.er although the Crown su!mitted that hunting had !een a marginal acti.ity during the period in #uestion +1AL9 the agreed8upon date of the Crown/s effecti.e so.ereignty, this was !ecause of a scarcity of moose and not !ecause of its lac) of importance to the historical or contemporary Mtis community +see Ray 100A,% @ence the original trial court found that (hunting was an integral part of the Mtis culture prior to the as8 sertion of effecti.e control !y the European authorities* + %. .. 'o,le$ 1000 120,% This original finding was upheld in the 4ntario Court of &ppeal +2991 para% 121, and the :upreme Court of Canada +299? para% FF,% In upholding this right howe.er the 4ntario Court of &ppeal side8stepped a fundamental issue namely whether these rights emanated from the distinct Mtis culture which emerged in the region in the se.enteenth and eighteenth centuries or from the Mtis/ pre8contact 4=i!way ancestors +appellant/s fac 8 tum 2999 ?L81$ respondent/s factum 2999 1L$ %. .. 'o,le$ 2991 ?21,% In other words were these practices &!original !ecause the Mtis practised them or !ecause they had !een practised !y their 4=i!way progenitors7 :ince the characteri"ation of the right fitted !oth scenarios +!ecause !oth the Mtis and the 4=i!way hunted for food, the &ppeal Court saw no need to answer the #uestion: (It is conceded !y the appellant that the 4=i!way ancestors of the :ault :te% Marie Mtis did engage in the practice of moose hunting and ac8 cordingly e.en if the Mtis right depends upon a pre8contact practice the issue will not !e determinati.e in this case* + %. .. 'o,le$ 2991 para% 199,% @owe.er the =udge did not stop there continuing: (4n the other hand this issue goes to the heart of the nature of Mtis rights protected !y s% ?L and to some e<tent informs the entire interpreti.e and analytic e<ercise* +2991 para% 199, and he went on to ma)e a num!er of obiter comments%


Chris Andersen

@e !egan !y noting that since the Mtis are formally recogni"ed in the constitution as a (discrete and e#ual su!set* of &!original peoples their dis 8 tinctness must !e recogni"ed% To position the legitimacy of the Mtis under the um!rella of an ancestral >irst 3ation ' in other words to su!ordinate them as the 4ntario pro.incial Crown would ha.e it ' would !e to (ignore the distincti.e history and culture of the Mtis* +2991 para% 191,% (4f course * the =udge continued (one cannot ignore that s% ?L protects Ma!original/ rights and that DitE is the a!originality of the Mtis that is constitutionally protected* +para% 19?,% @e then #uoted appro.ingly from 5ale Ii!son a noted &!origi nal rights lawyer and law professor +who wrote for the Royal Commission on &!original ;eoples, noting that it seemed difficult to =ustify (an entirely dis 8 tinct second order of &!original rights held !y new social entities that did not e<ist when the European8!ased order first asserted =urisdiction* +para% 192,% Most tellingly the =udge argued:
&s the Mtis culture was not a mere (cut and paste* affair it may well !e diffi 8 cult in some cases to determine whether a Mtis practice custom or tradition was inherently &!original in nature% There is howe.er a discerni!le conception of &!original rights arising from the distincti.e relationship the &!original peoples ha.e with the lands and waters of their traditional territories and one would e<pect the nature of Mtis rights to correspond in !road outline with those of Canada/s other &!original peoples% + %. .. 'o,le$ 2991 para% 19F,

This paragraph is )ey to unloc)ing the raciali"ed logic orienting the =udicial reasoning of the =ustices of the 4ntario Court of &ppeal and it contains a num!er of contentious assertions% In the present conte<t one of these is that the &!originality of Mtis practices must (arise from the distincti.e relation8 ship* they hold with their lands% Importantly not =ust any lands are rele.ant in this conte<t% :pecifically (their lands* consist of a precisely specified geo 8 graphical space located in and around :ault :te Marie% E#ually importantly Mtis litigants must pro.e that their people had used and occupied these lands and waters prior to the imposition of European institutions and political re 8 gimes or (effecti.e control* + %. .. 'o,le$ 2991 para% 01,% The :upreme Court of Canada +:CC, upheld this framing of the issue af 8 firming the 4ntario Court of &ppeal/s construction of a Mhistoric rights8!earing community%* &ctually the :CC initially offered two constructions of commu8 nity: the :ault :te Marie Mtis community and also (a distincti.e Mtis community DwhichE emerged in the 6pper Ireat Ja)es region in the mid812th century and pea)ed around 1AL9* + %. .. 'o,le$ 299? para% 21,% -ut instead of grappling with the #uestion of which community to choose +and why, the :CC simply chose the former construction !y affirming e.idence of the fur8trade post contained in the respondents/ e<pert reports +paras% 21'?,% In doing so its construction mimic)ed that of the 4ntario Court of &ppeal% Moreo.er

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the :CC affirmed if somewhat more .aguely the appeal court/s logic regarding the relationship !etween the Mtis as &!original people and the lands and waters of their territories: (In the longer term a com!ination of negotiation and =udicial settlement will more clearly define the contours of the Mtis right to hunt a right that we recogni"e as part of the special a!original relationship to the land* +para% L9,% Importantly the :CC affirmed this construction of &!originality while also affirming the rele.ant time frame for assessment of &!original rights as !eing the period prior to effecti.e Crown control +para% ?A,% The pro!lem here is not that the courts/ recognition of the territory around :ault :te Marie wasn/t generous gi.en the e.idence !efore them% Ghat is pro!lematic is the manner in which they percei.ed (community * emphasi"8 ing the importance of historical use and occupancy within a defined geographical space and historical time frame% The :CC/s choice is not sur 8 prising gi.en that &!original rights are strongly shaped !y common law conceptions of property rights and as such are located in specific concep 8 tions of legitimate property use +see Mc3eil 10A0,% These concepts of earlier property rights gi.e &!original rights their site8specific character% Moreo.er mo.ing the date of rele.ance forward prior to effecti.e control ' rather than say prior to contact or prior to the assertion of so.ereignty ' is an e<tremely positi.e step for Mtis litigants% Ghat we might note here though is the e< 8 tent to which the site8specific character of Mtis rights +an otherwise unstated element of their &!originality, and the time frame considered appropriate in assessing Mtis &!originality se.erely limit the a!ility of Mtis communities to form outside the geographical areas of their ancestors ' particularly in ur 8 !an centres where the !ul) of the Mtis population of Canada now li.es +see :tatistics Canada 299?,% =Corresponding to Canadas "ther Aboriginal 'eoples> In addition to framing the &!originality of Mtis culture within the conte<t of a historical relationship to (the lands and waters of their traditional territo 8 ries * the 4ntario Court of &ppeal added another criterion namely that (one would e<pect the nature of Mtis rights to correspond in !road outline with those of Canada/s other &!original peoples* + %. .. 'o,le$ 2991 para% 19F,% :imilarly the court suggested that although (the Mtis culture was not a mere Mcut and paste/ affair it may well !e difficult in some cases to determine whether a Mtis practice custom or tradition was inherently &!original in nature* +i!id%,% &pparently Mtis are not (inherently &!original%* -ut how can that !e so if they are an e#ual and distinct su!set of Canada/s &!original people7 Ghile not e<plicitly addressing this issue the Court of &ppeal pro 8 posed a solution as noted a!o.e suggesting that (Mtis rights DshouldE correspond in !road outline with those of Canada/s other &!original peoples* +i!id%,% &nd although the appeal court was #uic) to assure us that the Mtis


Chris Andersen

are a distinct and e#ual su!set of Canada/s &!original people and therefore their position may not !e su!ser.ient to that of Canada/s >irst 3ation/s people the court failed to e<plain why Mtis practices re#uire =u<taposition with those of >irst 3ations communities% The #uestion that arises of course is: @ow can the 4ntario Court of &p peal rationali"e such a relationship !etween Mtis and (Canada/s other &!original people* when these (other &!original people* are not re#uired to =u<tapose their practices with those of the Mtis7 To ma)e sense of this we need to loo) more closely at the Court of &ppeal/s decision% & do"en or so paragraphs !efore its discussion of Mtis &!originality the court ma)es a comment that is !oth o!.ious and ' insofar as it was directed specifically towards the Mtis ' deeply re.ealing% In following the reasoning laid out !y Jamer CJ in the &an der 'eet +1001, decision the Court of &ppeal =ustices remind us that the framewor) for interpreting >irst 3ations rights will not necessarily !e the same as that utili"ed for the Mtis !ecause the Mtis are a group (whose origins history and culture is !oth indigenous and European* + %. .. 'o,le$ 2991 para% 0F,% :imilarly the court argued that the Mtis (are peoples with !icultural origins% 3o culture howe.er distincti.e is free from the influences of those who came !efore% The distincti.e Mtis culture neces sarily drew hea.ily upon the &!original ancestors of the Mtis* +2991 para% 129,% If in these #uotes the Court of &ppeal is referring to the o!.ious fact that culture was transmitted intergenerationally !y the Mtis ancestors of the Mtis this is as !anal as it is true% &lternati.ely if one assumes that the distincti.e Mtis culture drew upon its (Indian* or indigenous roots two assumptions must !e made: first that the &!originality of Mtis culture is suspect and thus re#uires comparison to >irst 3ations culture+s,$ second that although Mtis culture is !icultural >irst 3ations cultures are not% &fter all if e.eryone admitted !icultural origins the term would lose its differentiating power% The :upreme Court of Canada offered a more generous framing of the Mtis !y e<plicitly constructing Mtis culture as fully &!original and the Mtis as a distincti.e people:
Ge re=ect the appellant/s argument that Mtis rights must find their origin in the pre8contact practices of the Mtis a!original ancestors% This theory in effect would deny to Mtis their full status as distincti.e rights8!earing peoples whose own integral practices are entitled to constitutional protection under s% ?L+1,% The right claimed here was a practice of !oth the 4=i!way and the Mtis% @ow 8 e.er as long as the practice grounding the right is distincti.e and integral to the pre8control Mtis community it will satisfy this prong of the test% This result flows from the constitutional imperati.e that we recogni"e and affirm the a!o 8 riginal rights of the Mtis who appeared after the time of first contact% + %. .. 'o,le$ 299? para% ?A,

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Rather than comparing Mtis practices with those of their 4=i!way neigh !ours ' an element of the test fashioned !y the 4ntario Court of &ppeal ' the :CC placed the issue directly in the headlights of an earlier :CC &!original rights decision %. .. +parro, % +parro, had focused issues of &!original resource use in the conte<t of conser.ation% Therefore in determining allocation with respect to resource use conser.ation was the paramount concern after which &!original resource users acting pursuant to an &!original right were gi.en priority% Thus the :CC/s interpretation puts the Mtis on an e#ual foot ing with >irst 3ations and perhaps more cynically in an e#ually su!ser.ient position when in competition with non8&!original resource users%
C6JT6RE OER:6: %%%7 RE>4RM6J&TI3I &-4RIII3&J RII@T:

The pre.ious section emphasi"ed the point that Canadian courts hold a .ery narrow ' and in many ways peripheral ' .iew of Mtis identity !ased on a refusal to recogni"e !road geographical or cultural change% This results partly from how courts percei.e &!original rights !ut also to a certain e<tent from the fact that Mtis litigants agree to play !y the e<isting rules of the court% This section is =u<taposed with the preceding one through a conceptual discussion of (rights* in order to criti#ue the courts/ characteri"ation of the ;owleys/ hunting trip as a cultural rightHpractice% This =u<taposition re.eals an alternati.e formulation to the con.entional cultural rights approach with potentially enor8 mous implications for many contemporary Mtis communities% The 'o,le$ courts/ cultural formulation of rights faithfully employs &an der 'eet s two8pronged test mentioned earlier especially in its emphasis on determining (practices integral to a distincti.e culture%* >or most of us and certainly for those formally in.ol.ed in the case this (rights as indigenous cultural practices* characteri"ation feels intuiti.ely correct% This is so e.en for the most politically conscious of non8&!originals and e.en +or perhaps especially, for &!original people themsel.es% In any e.ent all of the legal actors in.ol.ed in the case agreed to this framing% The only real issue at trial was whether the cultural practice should !e properly characteri"ed as a spe 8 cies8specific practice or as a more general right to hunt for food% Regardless all sides argued that hunting constituted an integral part of the historical and contemporary Mtis culture around :ault :te Marie% My argument on the contrary is that there are e#ually .ia!le alternati.es to constructing the ;owleys/ hunting trip as a cultural acti.ity% 4ne alternati.e is to descri!e the ;owleys/ hunting practice as an instance of a social eco nomic or e.en political right whose source emanates from the collecti.ity of the group rather than from its =udicially circumscri!ed distincti.eness% To put it another way the group/s distincti.eness is necessarily drawn from its collecti.ity rather than =udicial ruminations a!out its cultural !oundaries% &s


Chris Andersen

the collecti.e/s !oundaries change so too will its distincti.eness% To e<plain why no natural connection e<ists !etween rights and cultural practices re 8 #uires a !rief digression into a conceptual discussion of rights% In the li!eral tradition rights ha.e !een characteri"ed as a (powerful !ul 8 war) against the manipulation of humans !y go.ernments and other institutions in the modern world* +Tully 100? L,% They are presented as (domains of freedom* that pre.ent un=ustifia!le interference +Mac)lem 2991 119, and are said to mediate the interests of and conflicts !etween indi.idual and state interests +see especially 5wor)in 1022,% To wit (DwEhen rights and state in 8 terests are percei.ed to !e in conflict each with their claim to legitimacy courts are drawn toward Mweighing/ the Mstrength/ of state interests against the Mdegree/ of intrusion on indi.idual rights* +;ildes 2992 1A9'1,% ;art of the allure of rights is that they protect certain sets of interests normally percei.ed as the li!erty of the indi.idual against un=ustified state encroachment% In a more concrete conte<t conte<t8specific and critically important =urisprudential #uestions re.ol.e around esta!lishing which interests the courts should protect and how they should protect them +Mac)lem 2991 111,% Judges engage in purposi.e reasoning to esta!lish the underlying purpose or interests which the right is meant to protect +-a)an 1002$ Mac)lem 2991$ %. .. +parro, 1009,% The important thing to remem!er a!out purposi.e reasoning howe.er is that (the right/s purpose does not magically arise from the te<t and announce its presence to the interpreter* +Mac)lem 2991 11F$ also see -a)an 1002,% Instead the =udicial process re#uires that =udges glean it from the array of competing interests and then select through the use of con.ention precedent academic commentary and their own sense of !alance those that intuiti.ely appear correct or reasona!le +Mac)lem 2991 11F,% More often though a right is characteri"ed (in the a!sence of an e<plicit in#uiry into the interests it ought to protect lea.ing the reader with the tas) of discerning the right/s underlying interests !y comparing the purpose ascri!ed to the right with the types of acti.ities that it authori"es* +i!id%,% 6ltimately then determinations a!out the (which* and the (how* are predicated upon the right/s characteri"ation% Thus deciding how to characteri"e a right correctly re#uires a decision on which interests the right is meant to protect ' or to turn the statement slightly the )ind of interests to !e protected% It is clear that the courts and the lawyers in the 'o,le$ case understood &!original rights to !e cultural rights% 4n the other hand there are .arious ways to characteri"e rights depending on the )ind of interests that appropriately warrant protection% Cultural rights although pri.ileged in this conte<t are !ut one construction of rights% >or e<ample ci.il and political rights might include (freedom of conscience religion assem!ly association as well as .oting rights and rights associated with a fair trial and e#uality * while social and economic rights might include (rights to health education culture housing social assistance and nutrition* +Mac)lem

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2991 2?0,% Ci.il and political rights protect our participation in ci.il and political society while social and economic rights protect our economic and social welfare +i!id% 2F9,% Clearly the ;owleys/ hunting trip although framed as a cultural practice was a social and economic practice: for the cost of a rifle cartridge the ;owleys sa.ed a!out R1 L99 in meat costs% @owe.er my intention here is not to frame this practice as an economic rather than a cul8 tural right$ this is not an eitherHor scenario !ecause Mtis rights in.ol.e a comple< intersection of political social economic and cultural interests% Rather it stri)es me that the issue here is the le.el of a!straction at which the right is pitched +see Rotman 1002,% In this .ein how would the ;owleys/ hunting !e construed if seen as an instance of their connection to a historical Mtis society rather than to a distinct Mtis cultural practice7 >or our purposes it is important to remem!er that constitutionally spea) ing rights emanate at least partially from the historical Mtis society that e<isted !efore the effecti.e assertion of so.ereignty !y the Canadian state$ they do not emanate solely from Mtis cultural distincti.eness or difference +which in the =udicial field amounts to the same thing,% :ince the rights spring from the historical society and not =ust from their cultural practices constitutional protections should spring from the same source$ that is to say they should protect the maintenance +or re!uilding of, remnants of the Mtis society not only the fragmented practices that comprise a particular part of it% The society/s distincti.eness cannot !e used as the mar)er since it would !e diffi cult to loo) at any society and not find something distincti.e a!out it% >or e<ample none of us gi.e much thought to #uestioning the distinctions !etween :as)atchewan and Manito!a say despite their similar history economy and population% Their =urisdictional separateness is largely ta)en for granted !oth politically and in popular consciousness such that those who li.e within the !oundaries of the respecti.e pro.inces can spend hours e<pounding the differences while an outsider can simultaneously descri!e similarities% Moreo.er focusing on the protection of &!original societies per se rather than on some pre8concei.ed notion of what those societies essentiall$ are allows these collecti.ities the geographical and cultural space to change and adapt so as to ensure their .ia!ility into the future% Ta)e for e<ample the following statement from the Mtis 3ational Council/s su!mission to the Ref 8 erence Iroup of Ministers on &!original ;olicy:
D4Eur people continue to !e the poorest of the poor within this rich country% 5ue to the on8going =urisdictional game played !etween the federal go.ernment and the pro.inces the gap !etween our children and the children of other Canadians continues to widen at an alarming rate% &re our children not worthy of !asic health care needs that are readily a.aila!le to other Canadians7 &re our .eterans not worthy of the same recognition gi.en to other soldiers who ha.e gone off to


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defend Canada7 &re our communities not worthy enough to !e a!le to position themsel.es to !ecome economically .ia!le7 6nfortunately the answer under the current federal approach to all of these #uestions is (yes%* +M3C 2992 2,

The Mtis 3ational Council/s frustration stems not from the fact that the federal go.ernment refuses to ac)nowledge their indigenous difference !ut !ecause the go.ernment refuses to treat them as distincti.e from !ut with needs similar to other Canadians% >undamentally then the pro!lem with &!original rights as they are currently concei.ed is that they refuse to recogni"e indigenous modernity% &s one noted &!original scholar concludes (It is a good thing the rights of other Canadians do not depend on whether they were important to them two or three hundred years ago% Ghat would it !e li)e for Canadians to ha.e their funda8 mental rights defined !y what ,as integral to European peoples/ distincti.e culture prior to their arri.al in 3orth &merica7* +-orrows 1002 ?9,% Mtis culture and society li)e whitestream Canadian culture and society ha.e changed o.er the past centuries% Moreo.er all &!original societies in8 cluding Mtis societies far predate Canadian society whose legitimacy as !oth real and intrinsically dynamic is largely ta)en for granted% Thus Cana 8 dian statute and common law do not wor) to pre.ent Canadian society from changing% Change is e<pected and thus the law is concerned with shaping its pace and form% Net &!original rights law at least as it pertains to the Mtis is charged with doing precisely the opposite% Its role is to act as a curator to ensure that &!original culture does not change or at least that it does not change in a way that erases the percei.ed difference of the Mtis from main 8 stream Canadians% The point to ta)e away from this section is that courts accomplish their assigned tas) of protecting difference !y focusing on the aspects of &!originality that render it different% The Mtis no less than the >irst 3a tions are !ound !y the racial grammar underlying this =udicial tas)% &t present this is perhaps more pro!lematic for Mtis than for >irst 3ations for two reasons% >irst a large num!er of >irst 3ations communities possess specific treaty rights many of which are more e<plicitly delineated than &!original rights and as such are not !ound !y &an der 'eets logic% Moreo.er some are also in a position to ma)e title8!ased &!original rights claims which since the :upreme Court of Canada Canada/s 1002 #elgamuu5, decision allow them to e.ade the &an der 'eet test%10 :econd the Mtis are proportionately more li)ely than >irst 3ations to li.e in geographical locales that lie outside the =udicial !oundaries of &!originality$ 3early 29 percent of the Mtis population of Canada reside in ur!an communities a situation that raises a num!er of interesting issues a!out the e<tent to which the (legal imagination* +Mac)lem 1001, of Canada/s courts can !e stretched to concei.e of ur!an &!original communities as legitimately &!original% I turn to this issue now%

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5I:TI3CTI43 GIT@46T & 5I>>ERE3CE7 6R-&3 C4MM63ITIE: This final section is !rief and is used to ma)e some comments regarding the difference for ur!an Mtis !etween protecting &!original distincti.eness +!roadly defined, and difference% The 2991 census estimated that there are appro<imately one million &!original people in Canada or ?%? percent of the total population +:tatistics Canada 299? 1,% This is pro!a!ly a somewhat con8 ser.ati.e estimate for .arious reasons relating to underenumeration +i!id%, a result of a lower rate of fi<ed addresses and the hypermo!ility of the ur!an &!original population in Canada +@anselmann 2991,% More than two8thirds of this population li.e off8reser.e and a!out L9 percent close to a half million people li.e in Canada/s ur!an centres +:tatistics Canada 299? 19,% -etween 1001 and 2991 the ur!an &!original population grew !y 22%2 percent compared with only ?%F percent for non8&!original Canadians%29 The Mtis in particular comprise an increasingly large part of the ur!an population% More than two8thirds of Mtis are ur!an which means that they represent appro<imately F9 percent of the total ur!an &!original population% Moreo.er ' and this is an important if o!.ious point to ma)e ' ur!an Mtis are not wandering aimlessly around the city$ they ha.e coalesced into .ia!le enduring communities that handle much of the ser.ice deli.ery to their com 8 munity mem!ers in addition to the numerous community acti.ities they sponsor% These ur!an communities ha.e second and third8generation mem 8 !ers who ha.e ne.er !een to nor ha.e any particular connection with the land of their parents grandparents and ancestors% This generation li.es in a melting pot where they interact and associate with a di.ersity of people on a scale unimagina!le to their parents or grandparents +see 3ewhouse 2999,% Net many continue to identify themsel.es with an indigenous culture% It may !e21 that these children are )nowledgea!le of a !roader panindige 8 nous culture appropriately reflecting their cultural and geographical conte<t of intermi<ing with numerous indigenous cultures and with whitestream Ca nadian culture% They may participate in tea and !annoc) socials ur!an powwows fiddling or =igging competitions and in rare cases they may e.en understand or spea) an indigenous language% Regardless they also hang out with their own and other 3ati.e families playing S8-o< s)ate!oarding !eing !ored at school playing hoc)ey or engaging in freestyle rap competitions ' things that many teenagers do% My point here to #uote from &an der 'eet +1001 para% 112, is that conceptions of &!originality (should not !e limited to those acti.ities that only a!original people ha.e underta)en or that non8a!original people ha.e not%* Clearly despite their own admonition against it the =ustices of the :upreme Court of Canada ha.e !ased the logic of their &!original rights test precisely on the degree to which &!original communities are a!le to differentiate themsel.es from !roader Canadian norms% Net there is


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little a!out ur!an 3ati.e communities that is different enough ' according to =u8 dicial tests ' to warrant protection !y the :upreme Court of Canada under section ?L% In many cases the aspirations +or lac) thereof, and material conditions of the mem!ers of ur!an &!original communities are difficult to distinguish from those of non83ati.e people +many of whom are part of the same community,% This is not to say that ur!an Mtis +or 3ati.e, communities are not distinct from other communities or are not recogni"a!ly autonomous% 5istincti.eness does not e<ist au naturel !ut is found and strategically employed in the con te<t of larger identity pro=ects% Thus choosing elements of distincti.eness is a fairly ar!itrary process in that one might choose different elements of dis8 tincti.eness !ased on one/s strategies in a specific conte<t% To phrase this more theoretically (identities are a!out using the resources of history language and culture in the process of !ecoming rather than !eing* +@all 1001 F,% Insofar as this is the case the important issue is not whether 3ati.e communities +or any community for that matter, are distincti.e$ !ut rather who ma)es the decision a!out what counts as distincti.e% The litany of statistics +see :tatistics Canada 299?, demonstrates that ur!an Mtis face many of the conditions faced !y other impo.erished citi"ens% Net they continue to use the resources at their disposal ' history language elements of culture ' to construct indigenous collecti.ities% Many will recogni"e things a!out them that are indigenous$ others +=udges included, may not% In this conte<t howe.er ur!an Mtis will continue to identify themsel.es as indigenous and will continue to coalesce into distincti.e ur!an communities% My point here is not that any old set of practices can !e called indigenous% Clearly many who grew up close to the land will recogni"e themsel.es in con8 .entional descriptions of indigeneity that lac) an ur!an element% >or those who do that is great% @owe.er there is an e<ponentially increasing ur!an 3ati.e population that will recogni"e little of theirsel.es in con.entional narrati.es !ut will still identify themsel.es as Mtis +or Cree or 5ene or whate.er other identity community they feel an allegiance to,% &lternati.ely in a more comple< sense they may !egin to identify themsel.es as Mtis +or Cree or 5ene, from Edmonton, for instance or from &l!erta%22 Ge are long past the time when ur!an residence can !e understood as a recipe for assimilation% 6r!an &!original people may recogni"e themsel.es as 3ati.e in different ways from those li.ing on8reser.e in a Mtis settlement or in a more remote area +such as the 3orthwest Territories or 3una.ut, !ut they still recogni"e themsel.es as indigenous% They still self8identify and they still attach themsel.es to an ur!an indigenous collecti.e% C43CJ6:I43 -y way of conclusion let me try to !ring together some loose threads% &n apparently unresol.ed tension in this essay re.ol.es around the contrast

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articulated !etween ideas of difference and distincti.eness or as the &an der 'eet court articulated it !etween the terms distinct and distincti.e% >or the &an der 'eet court (distinct* was defined as acti.ities that were uni#ue to a cultural group$ !y contrast (distincti.e* consisted of those acti.ities that made a community or culture =ust that ' distincti.e ' without forcing it to pro.e that its culture was uni#ue sharing no similarities with any other cultures% I pushed the logic of this distinction a step further arguing that insofar as identity is contingent there is nothing a!out indigenous identities !eyond re8e.aluation of their mem!ership% That is to say the issue of who gets to decide what it means to !e indigenous is far more important than what counts as indigenous !ecause as we ha.e seen culture will change as the social conditions of indigenous communities change% Ji.ing in contemporary Canada especially in a relati.ely resource8wea) position re#uires hard choices$ this may lead communities to go !ac) to the !ush !ut more li)ely it will re#uire that community mem!ers lea.e reser.es and settlements to reform in different !ut analogous ways in Canada/s towns and cities% Either way it is the principle of collecti.e self8identification that is of primary importance not the (content* of a particular culture% ;olicing cultural content is howe.er the purpose of section ?L of the Con? stitution Act, -).( 'or at least it is according to the :upreme Court% The pro!lem as identified earlier in this essay in the #uotation from John -orrows is that tests of &!original rights force &!original litigants to define their contemporary sel.es in terms of elements that were important to them centuries ago !ut are no longer as important today +for e<ample hunting for food,% In this scenario racial difference is reiterated in the form of narrow historical narrati.es that emphasi"e a close connection to the land% The light of =udicial reasoning shines !rightest on indigenous practices that conform to pre8contact practices and conse#uently ur!an Mtis practices and geographies tend to fare poorly in this light% Thus to the e<tent that the Mtis litigants emphasi"e certain aspects of their historical sel.es they are deemed appropriately indigenous% @owe.er the 4ntario Court of &ppeal issued a .eiled warning% It suggested almost off the cuff that only those aspects of Mtis culture that are &!origi nal in character are eligi!le for protection% &lthough the :upreme Court of Canada !ac)ed off this re#uirement and replaced it with a construction more considerate of the Mtis as a (fully &!original* people it nonetheless locates authentic &!originality in the era prior to (effecti.e so.ereignty* +in this case around 1AL9,% 6ltimately Mtis must su!mit their cultural papers to the courts to ma)e sure they are in order% The pro!lem with court litigation strategies is that they wor) ' until they don/t% Michael &sch suggests that (the courts DopenE a door for the Canadian :tate to rethin) its relations with indigenous peoples and to re8imagine a Canada founded on premises that disa.ow the ethnocen tric legacy of colonial law* +1000 F2A,% Ghen they fail courts simply and (o.ertly articulate %%% support for the status #uo* +i!id%,% 4n the one hand what other options do the Mtis ha.e in a place such as Canada where the


Chris Andersen

:upreme Court holds such a powerful position in the political field7 +:ee Manfredi 2991%, There is in such a conte<t little to !e lost and much to !e gained !y using litigation strategies% Net the issue is more dangerous than this% Court cases result in Mtis fi<ing dangerously narrow streams of Mtis culture in the minds of one of the more powerful actors in the Canadian political field ' e.en as in the 'o,le$ case when they are .ictorious% 34TE:
1 -ear in mind howe.er that the +parro, decision affirmed for the Io.ernment of Canada the underlying so.ereignty of the Canadian state and as such did not meet all the concei.a!le aspirations of indigenous communities and nations% 2 The role of precedent re#uires that =udges use cases pre.iously decided on analogous grounds to help shape the parameters of future decisions% & case/s precedential .alue depends on when it was decided and at what le.el of court% :upreme Court of Canada cases ha.e precedential .alue for all lower court decisions in Canada and are considered !inding% &ppeal court cases are persuasi.e !ut not necessarily !inding and the same is true of international high court cases% ? The term (whitestream* is !orrowed from Claude 5enis/s e<cellent !oo) <e Are @ot AouB ;irst @ations and Canadian Codernit$ % The term is used to indicate how al8 though Canadian citi"enry comprises numerous cultures the dominant institutional arrangements tend to reflect a predominately Euro8Canadian !ias +5enis 1002 1?,% F >or an accessi!le and useful discussion of -ourdieu/s notion of a social field see -ourdieu and Gac#uant 1002% &lso see :wart" 1002 ch% 1% L Jegal positi.ism is !ased on the premise that =udicial lawma)ing is deri.ed from a straightforwardly rational relationship !etween legal fact and legal principle% Thus =udges wor) to mechanically apply the correct legal principle to the legal facts !efore them% 1 &t the ris) of stating the o!.ious using (law* in an artificially uniform fashion +i%e% !oth for the courts and for the legislature, ma)es it analytically difficult to register the tensions !etween courts and legislatures% In the specific instance of Mtis rights this tension is crucial for understanding how litigation strategies are helpful +or not, to the Mtis in their political struggles% &t the .ery least ma)ing an analytical distinction !etween courts and legislatures allows us to account for the fact that people !rea) laws not court cases$ that is courts do not ma)e laws whereas legislatures do% Courts generate =udicial rationalities that set the param 8 eters for more direct policy ma)ing ' nothing more nothing less% 2 &lthough !eyond the scope of this essay it is important to note that as acti.e agents successful court struggles often re#uire that &!original communities (!attle harden* their identities in ways that emphasi"e their cultural difference%

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A Eighteenth8century international law su!scri!ed to a la!our theory of .alue mean ing that in order to demonstrate proper ownership of land one had to !e putting la!our into the soil% :ince many indigenous groups did not the land was often considered terra nullius, or empty% 0 >or e<ample around the time of the >rench Re.olution and the &merican Gar of Independence sla.es were still sold !y the tonnage +Iuillaumin 10A9 FA,% 19 I am using the term episteme slightly more specifically than did Michel >oucault with whom the term is normally associated% >or >oucault epistemes set the pa8 rameters within which the .alidity of discourse is e.aluated% They constitute the a priori (definDingE the conditions within which DoneE can sustain a discourse a!out things that are considered to !e true* +>oucault 102? 1L2,% Modernity with its attendant )nowledge systems is the dominant episteme of our age% My argument here is that race as constituti.e of Canadian modernity constitutes a )ey a priori in contemporary Canadian society% @owe.er owing to -ourdieu/s more comple< understanding of how social reality is mediated through a series of more (local* social fields episteme is used more locally to indicate the a priori upon which courts !ase decisions a!out &!original rights% 11 :ee :lattery 2999 for a clear and sophisticated discussion of the different classes of rights% 12 :ite8specific rights are =ust that: rights that are e<ercisa!le only in a specific geo 8 graphical location which usually is determined !y =udges in the course of rendering a court decision% In the 'o,le$ decision the =udge argued that the appropriate community was the area in and around :ault :te Marie rather than the city itself despite the Crown/s argument that the ;owleys li.ed within the city and despite the respondents/ reference to a larger (6pper Ireat Ja)es* Mtis community% 1? ;urposeful or (purposi.e* reasoning re#uires the =udge to e<amine (Canada/s his 8 tory traditions and fundamental .alues %%% to determine a right or freedom/s purpose* +-a)an 1002 22,% ;urposi.e reasoning is supposed to act as a go.ernor of =udicial choice !y limiting decisions to a right/s underlying purposes and prin 8 ciples +i!id% 2?,% 1F +parro, is italici"ed in the original !ut the italici"ed phrase (recognition of more a!stract fundamental rights* is my emphasis% 1L This phrase is my emphasis% &ll other italici"ed words in the #uotation were italici"ed in the original% 11 The contactHpre8contact di.ide is central to &an der 'eets construction of indigenous legitimacy% 3ote the mo.ement from the contactHpre8contact di.ide to the pre8 and post8effecti.e control paradigm presented in the 'o,le$ case% 12 Gilliams Jr 1002% 1A -oth the :CC decision and the 4nt% C& decision are used !ecause a !ul) of the :CC decision merely confirms or denies the findings of the 4nt% C& decision which constructed a far more in8depth analysis of the issues at hand%


Chris Andersen

10 In cases of title8!ased &!original rights assertions mere occupancy at the time of the Crown/s assertion of so.ereignty is used to encompass cultural practices rather than !eing forced to pro.e specific cultural practices% 29 These growth estimates should !e read cautiously$ part of the huge growth is due to the increased num!ers of people who ha.e !egun to identity themsel.es as Mtis% The Mtis population has =umped !y F? percent since 1001 +:tatistics Canada 299? 2,% Moreo.er it is not clear what these newly self8identifying Mtis ta)e the term (Mtis* to signify% 21 I use (may also !e* !ecause there is little research to show this to !e the case% @owe.er I ha.e !een to enough cultural e.ents and ha.e seen enough ur!an social ser.ice deli.ery programs that include a cultural focus +al!eit often reified, to !elie.e that remaining .ia!ly indigenous in an ur!an area is not impossi!le or e.en in the !igger ur!an centres difficult% 22 I would li)e to than) Roger Maa)a a Maori scholar and chair of the 5epartment of 3ati.e :tudies 6ni.ersity of :as)atchewan for his helpful discussion in this regard%

&sch M% 1000% (>rom Calder to Oan der ;eet: &!original Rights and Canadian Jaw 102?'1001%* In Dndigenous 'eoples %ights in Australia, Canada, and @e, Eealand, ed% ; @a.emann F2A8FF1% 4<ford: 4<ford 6ni.ersity ;ress ' 2999% (The Judicial Conceptuali"ation of Culture after #elgamuu5, and &an der 'eet%* %evie, of Constitutional +tudies L no% 2: 110'?2 ' 2992% (>rom /erra @ullius to &ffirmation: Reconciling &!original Rights with the Canadian Constitution%* Canadian 6ournal of a, and +ociet$ 12 no% 2: 2?'?0 &sch M% and C% -ell% 100F% (5efinition and Interpretation of >act in Canadian &!o 8 riginal Title Jitigation: &n &nalysis of #elgamuu5, %* Fueens a, 6ournal 10:L9?'LL9 -a)an J% 1002% 6ust <ordsB Constitutional %ights and +ocial <rongs. Toronto: 6ni.ersity of Toronto ;ress -arsh R% and J%N% @enderson% 1002% (The :upreme Court/s &an der 'eet Trilogy: 3ai.e Imperialism and Ropes of :and%* CcGill a, 6ournal F2:00?'1990 -auman K% 1002% Dntimations of 'ostmodernit$ % Jondon: Routledge -ell C% 100A% (3ew 5irections in the Jaw of &!original Rights%* Canadian 4ar %evie, 22:?1'22 -ell C% and M% &sch% 1002% (Challenging &ssumptions: The Impact of ;recedent on &!original Title Jitigation%* In Aboriginal and /reat$ %ights in CanadaB 0ssa$s on a,, 0qualit$, and %espect for 6ustice, ed% M% &sch% Oancou.er: 6ni.ersity of -ritish Colum!ia ;ress and Centre for Constitutional :tudies -orrows J% 1002% (The Tric)ster: Integral to a 5istincti.e Culture%* Constitutional ;orum A:20'?A%

%esidual /ensions of 0mpire


-ourdieu ;% 1022% "utline of a /heor$ of 'ractice % Translated !y Richard 3ice% Cam!ridge T 3ew Nor): Cam!ridge 6ni.ersity ;ress ' 10A2% (The >orce of Jaw: Toward the :ociology of the Juridical >ield%* Hastings a, 6ournal ?A:A9L'L? ' 1002% anguage and +$mbolic 'o,er % Edited and introduced !y John Thompson: Translated !y Iino Raymond and Matthew &damson% Cam!ridge 6%P% : ;olity ;ress -ourdieu ;% and J% Gac#uant% 1002% An Dnvitation to %eflexive +ociolog$% Chicago: 6ni.ersity of Chicago ;ress #elgamuu5, .% 4ritish Columbia +1002, 1 C3JR 1F +:CC, 5enis C% 100?% (Fuebec?as?#istinct?+ociet$ as Con.entional Gisdom: The Constitutional :ilence of &nglo8Canadian :ociologists%* Canadian 6ournal of +ociolog$ 1A no% ?:2L1'210% ' 1002% <e Are @ot AouB ;irst @ations and Canadian Codernit$ % ;eter!orough 4nt%: -road.iew ;ress ' 2992% (Indigenous Citi"enship and @istory in Canada: -etween 5enial and Imposi 8 tion%* In Contesting Canadian Citi9enship ed% R% &damos)i 5% Chunn and R% Men"ies 11?8121% ;eter!orough 4nt%: -road.iew ;ress 5errida J% 10A1% 'ositions. Translated and annotated !y &lan -ass% Chicago: 6ni.ersity of Chicago ;ress 5wor)in R% 1022% /a5ing %ights +eriousl$ % Jondon: 5uc)worth >ish :% 10AA% (>ish .% >iss%* In Dnterpreting a, and iteratureB A Hermeneutic %eader, ed% :% Je.inson :% and :% Maillou<% E.anston Ill%: 3orthwestern 6ni.ersity ;ress >oucault M% 1022% /he Archaeolog$ of Ino,ledge and the #iscourse on anguage% 3ew Nor): ;antheon -oo)s ' 102?% /he "rder of /hingsB An Archaeolog$ of the Human +ciences % Trans% unidentified collecti.e% 3ew Nor): Ointage >ris!y 5% and 5% :ayer% 10A1% +ociet$% Chichester 6%P%: Ellis @orwood$ and Jondon: Ta.istoc) ;u!lications Ii!son 5% 1001% (& Ieneral :ource of Mtis Rights%* In %eport of the %o$al Commission on Aboriginal 'eoples% Ool% F: 'erspectives and %ealities. 4ttawa: Minister of :upply and :er.ices Iiddens &% 1009% /he Consequences of Codernit$% Cam!ridge 6%P%: ;olity ;ress Iold!erg 5% 100?% %acist CultureB 'hilosoph$ and the 'olitics of Ceaning % Cam!ridge Mass%: -lac)well Iuillaumin C% 10A9% (The Idea of Race and Its Ele.ation to &utonomous :cientific and Jegal :tatus%* In +ociological /heoriesB %ace and Colonialism % ;aris: 63E:C4 @all :% 1001% (Introduction: Gho 3eeds MIdentity7/* In Fuestions of Cultural Dden? tit$, ed% :% @all and ;% 5u Iay% Jondon 6%P%: :&IE ;u!lications @anselmann C% 2991% Jrban Aboriginal 'eople in <estern CanadaB %ealities and 'olicies% Calgary: Canada Gest >oundation 6acobellis .% "hio, ?2A 6: 1AF +101F, Pelley R% 1002% Ao Camas #$sfun5tionalB ;ighting the Culture <ars in Jrban America% -oston: -eacon ;ress


Chris Andersen

Pymlic)a G% 2991% 'olitics in the &ernacularB @ationalism, Culticulturalism, and Citi9enship % 4<ford: 4<ford 6ni.ersity ;ress Mac)lem ;% 2991% Dndigenous #ifference and the Constitution of Canada % Toronto: 6ni.ersity of Toronto ;ress Mc3eil P% 10A0% Common a, Aboriginal /itle % 3ew Nor): 4<ford 6ni.ersity ;ress Magnet J% 299?% ;actum of the Dntervener, Congress of Aboriginal 'eoplesB %. v. 'o,le$% Court file no% 2AL?? Manfredi C% 2991% 6udicial 'o,er and the CharterB Canada and the 'aradox of ib? eral Constitutionalism % Toronto: 4<ford 6ni.ersity ;ress Mtis 3ational Council +M3C, 2992% +ubmission to %eference Group of Cinisters on Aboriginal 'olic$ % 4ttawa: Mtis 3ational Council 3ewhouse 5% 2999% (>rom the Tri!al to the Modern%* In 0xpressions in Canadian @ative +tudies, ed% R% Jali!erte et al% :as)atoon: >aculty of E<tension ;ress 6ni8 .ersity of :as)atchewan ;ildes R% 2992% (The :tructural Conception of Rights and Judicial -alancing%* %e? vie, of Constitutional +tudies 1 no% 2: 120'212 ;o.inelli E% 2992% /he Cunning of %ecognitionB Dndigenous Alterities and the Ca5? ing of Australian Culticulturalism % 5urham 3%C%: 5u)e 6ni.ersity ;ress Ray &% 100A% (&n Economic @istory of the Ro!inson Treaties Era -efore 1A19%* E<pert Report: %. .. 'o,le$ +100A,. 6npu!lished Rotman J% 1002% (Creating a :till8Jife 4ut of 5ynamic 4!=ects: Rights Reductionism at the :upreme Court of Canada%* Alberta a, %evie, % ?1 no% 1: 1'A %. .% 'o,le$ +1000, C3JR 1L? +4nt% ;ro.% Ct%, ' +2999, 4J no% 00 +4nt% :C, K +2991, 2 C3JR 201 +4nt% C&, ' +299?, :CC F? +:CC, %. .. +parro, +1009, ? C3JR 119 +:CC, %% .% &an der 'eet +1001, F C3JR 122 +:CC, :aid E% 100?% Culture and Dmperialism. 3ew Nor): Ointage -oo)s :lattery -% 2999% (Ma)ing :ense of &!original and Treaty Rights%* Canadian 4ar %evie, 20:101'22F :tatistics Canada% 299?% Aboriginal 'eoples of CanadaB A #emographic 'rofile % :ta8 tistics Canada catalogue no% 01>99?9SIE2991992 :toler &%J% 100L% %ace and the 0ducation of #esireB ;oucaults Histor$ of +exualit$ and the Colonial "rder of /hings % 5urham: 5u)e 6ni.ersity ;ress :wart" 5% 1002% Culture and 'o,erB /he +ociolog$ of 'ierre 4ourdieu % Chicago: 6ni.ersity of Chicago ;ress Taylor C% 100L% (To >ollow a Rule%* In 'hilosophical Arguments % Cam!ridge Mass%: @ar.ard 6ni.ersity ;ress Tough >% 1001% =As /heir @atural %esources ;ail>B @ative 'eoples and the 0co? nomic Histor$ of @orthern Canitoba, -.13K-)23 % Oancou.er: 6ni.ersity -ritish Colum!ia ;ress

%esidual /ensions of 0mpire


Tully J% 100?% An Approach to 'olitical 'hilosoph$B oc5e in Contexts% Cam!ridge 6%P%: Cam!ridge 6ni.ersity ;ress ' 100A% (&!original ;roperty and Gestern Theory: Reco.ering a Middle Iround%* In /heories of 0mpire, -8:3K-.33, ed% 5% &rmitage% &ldershot 6%P%: &shgate ;u!lishing ' 2999% (The :truggles of Indigenous ;eoples for and of >reedom%* In 'olitical /heor$ and the %ights of Dndigenous 'eoples, ed% 5% I.ison ;% ;atton and G% :anders ?1' L0% Cam!ridge 6%P%: Cam!ridge 6ni.ersity ;ress Gilliams Jr R% 1002% (Oampires &nonymous and Critical Race ;ractice%* Cichigan a, %evie, 0L:2F'1L Gilmsen E% 10A0% and ;illed ,ith ;liesB A 'olitical 0conom$ of the Ialahari% Chicago: 6ni.ersity of Chicago ;ress Golf E% 10A2% 0urope and the 'eople <ithout Histor$% Jos &ngeles: 6ni.ersity of California ;ress Noung R% 100L% Colonial #esireB H$bridit$ in /heor$, Culture, and %ace% Jondon T 3ew Nor): Routledge