INDIGENOUS RIGHTS AND CLAIMS FOR FREEDOM IN SETTLER STATES.

• Author: Panagos, Dimitrios
• Position: Forum: Rights in Times of Challenge

Abstract

Scholars such as Joyce Green and James Tully advance that Indigenous peoples, in settler states like Canada, are engaged in an ongoing, centuries-old struggle for freedom. Rights are an important instrument for securing and protecting freedom. However, a survey of the scholarship on freedom reveals a significant degree of contestation surrounding the nature and scope of this very basic human interest. In this paper, I examine three different conceptions of freedom with a view of assessing these conceptions' suitability as a cornerstone of Indigenous rights. Specifically, I analyze a liberal conception of freedom (i.e. Isaiah Berlin's work on negative liberty), a republican conception (i.e. Philip Pettit's work on liberty as non-domination) and an Indigenous conception (i.e. John Borrows' work on liberty as mobility). The purpose of this analysis is twofold. First, I aim to outline the types of rights and duties underpinned by each conception of freedom. Second, I aim to make the case that the liberal and republican conceptions are unsatisfactory, while Borrows' conception shows some genuine promise, assuming the goal is to advance a set of rights and duties that would be useful in the Indigenous struggle for freedom.

Introduction

Rights are important because people associate them with justice. While there are a number of different theories of rights, Joseph Raz advances that rights are best understood as a bridge that connects duties to important human interests. (2) More specifically, Raz argues that a person has a right when that person has an interest that is capable of imposing a duty on some other person. (3) Basically, we can summarize Raz's position as the view that "[r]ights are grounds of duties in others". (4) Raz is certainly not the only, or even the first, philosopher to hold this view. Indeed, in his famous essay, "On Liberty", J.S. Mill presents a very similar position on the relationship between rights, duties and interests. (5)

Assuming that Raz is correct about the connection between rights, duties and interests, rights-based conflicts can come in at least two different forms. First, rights-based conflicts can turn on instances where two or more rights and their corresponding duties generate competing demands. According to Jeremy Waldron, "[w]hen we say rights conflict, what we really mean is that the duties they imply are not compossible". (6) In other words, two or more duties, generated by the existence of specific rights, cannot be simultaneously discharged. The following example may clarify this last point. Let's assume that people have a right to protest, and let's say that a person may exercise this right to protest by standing in front of a government building and holding up a placard criticizing a particular law or government policy. Given what we've already said about rights, this right to protest creates a duty, held by the rest of us, not to interfere with the protester's actions. Now, we will also have to acknowledge that the people who walk past the government building also have rights. Each person has a mobility right which creates a duty of non-interference. As a result, people have a duty not to interfere with other people's ability to get around. However, the protester's actions, at least to some degree, impede the mobility rights of each passer-by. But, if we act to remove the protester (and so discharge the duties generated by other people's mobility rights) we will fail to discharge our duty to the protester. And so we are faced with a moral dilemma. Which duty do we discharge? Which right do we violate? In this case, the rights-based conflict is concerned with figuring out how to justly deal with these sorts of moral dilemmas.

There is a second type of rights-based conflict. People can disagree about what is entailed by a particular right (i.e., the nature and scope of the right and its corresponding duties), even when they agree on the important human interest that that right is supposed to protect. For example, assuming that we agree that practising one's religion is an important human interest that is substantial enough to underpin a right, we can still disagree about what sorts of actions this right mandates, allows or forbids. Does a right to practise one's religion allow one to discriminate against particular groups of people as the owners of Ashers Baking Company argued when they refused to make a cake for a same-sex wedding in Northern Ireland? (7) Notice that the argument here is not about competing rights and their corresponding duties. Instead, the argument is about competing understandings of the meaning of the important human interest underpinning a right. The owners of the bakery in Northern Ireland have one vision of what it means to practise one's religion (i.e. the types of duties this right imposes on others) while their critics have a very different vision.

In this paper, I focus on this second type of rights-based conflict. Following the lead of scholars such as James Tully, I begin with the proposition that Indigenous rights claims in settler states, like Canada, are best understood as claims for freedom. (8) Indeed, many Indigenous scholars from different theoretical perspectives take the same position. In a seminal piece on the rights of Indigenous peoples in Canada, Joyce Green characterizes the conflict between Indigenous peoples and the settler state as "the struggle for a measure of liberation". (9) In his popular book, Wasase, Taiaike Alfred advances that "[t]here are many differences among the peoples that are indigenous to this land, yet the challenge facing all Onkwehonwe [original people] is the same: regaining freedom and becoming self-sufficient". (10)

Given the account of rights employed in this paper (i.e. one that connects rights to interests and duties), these scholars' views would mean that we should conceptualize Indigenous rights as rights that create duties that aim at protecting the liberty of Indigenous people. However, the claim that Indigenous rights aim at protecting liberty creates a problem because people hold very different beliefs about the meaning of this basic human interest. Indeed, the multiplicity of scholarly views raises serious questions about which understanding of freedom ought to underpin Indigenous rights. How we answer these questions matters because one's position on the meaning of liberty will shape one's position on the nature and scope of Indigenous rights, as well as the corresponding duties.

In this paper I focus on three scholarly accounts of freedom and the case of Indigenous peoples in Canada. More specifically, I examine Isaiah Berlin's work on negative liberty, Phillip Pettit's work on republican liberty, and John Borrows' work on freedom as mobility. My analysis demonstrates that the first two conceptions of liberty are an inadequate foundation for Indigenous rights. Negative liberty is problematic because, first, it cannot generate rights that would enable Indigenous peoples in Canada to challenge their status as citizens of the settler state, and second, because it cannot generate rights that would create a secure form of negative liberty. Republican liberty is problematic because it cannot generate rights that address the wrong of usurpation and so cannot protect Indigenous peoples in Canada from being subject to the rule of an imposed political authority. Contrastingly, Borrows' freedom as mobility provides a mechanism for addressing all of these aforementioned problems and so is a better foundation for Indigenous rights than its two counterparts.

Isaiah Berlin & Negative Liberty

If asked what it means to be free, many people would probably say something about being left alone to do as they wish. This notion of non-interference is the cornerstone of one popular liberal conception of liberty commonly referred to as "negative liberty". (11) Berlin tells us that an agent enjoys negative liberty to the extent that others do not interfere with the agent's desired actions. (12) Here, the only actions that should concern us are actions that are actually available to or possible for the agent. (13) To illustrate this conception of liberty, Berlin employs the metaphor of "open doors". He states that, "the extent of a man's negative liberty is [...] a function of what doors, and how many, are open to him". (14)

While this conception of liberty coincides in many ways with our commonsense views, a number of scholars find this notion of liberty unsatisfactory. While one can find numerous criticisms of this conception in the literature, these critiques generally focus on two related issues: status and security. With regards to the former issue, some scholars are critical of the fact that conceptualizing liberty as noninterference does not ensure that agents are immune from being accorded statuses (e.g. that of a slave or a ward) that seem to be irreconcilable with some of our basic intuitions about freedom. (15) This criticism is often illustrated vis-a-vis the case of the contented slave. The case of the contented slave describes a situation wherein a master, for a variety of reasons (e.g. benevolence, sloth or ignorance), does not ever actually interfere with his slaves. As a result, his slaves are able to go about their daily business as they see fit. If one holds a negative conception of liberty, it would be possible (and correct) in this instance to declare that the slaves are free. Obviously, this is very troubling because slaves, by definition, are not free agents (i.e. they are another person's property). Many scholars find this unsatisfactory, arguing that a proper conceptualization of liberty must include constitutive elements that preclude this possibility. (16) According to the critics, the lesson to draw from the case of the contented slave is that an acceptable version of freedom must not be compatible with holding the status of a slave or its equivalents. If we...