Unextinguished: rights and the Indian Act.

• Author: Borrows, John
• Position: Canada

Rights discourse can be simultaneously liberating and limiting. (1) Rights are limiting when they are essentialized, universalized, and placed above the fray of human affairs. (2) They can be dangerous when they are abstracted from the real-world struggles faced by ordinary people. (3) On the other hand, rights can be liberating if they are used as political tools. (4) They create opportunities to either challenge or facilitate governmental action. (5) When rights are regarded as real-world--rather than metaphysical--instruments, they can be strategically deployed or discarded, given the grounded context in which they operate. (6) Rights are not heavenly endowments or intellectually pure forms. (7) They are very human constructs and, as such, are not beyond human manipulation. (8) As Oliver Wendell Holmes observed: "The life of the law has not been logic: it has been experience." (9)

The experience of Indigenous peoples within Canada's constitution highlights the composite nature of rights. Rights have been both liberating and limiting. (10) Aboriginal and treaty rights within Canada's constitution do not flow from an ultimate convergence in values. (11) Widespread agreement about their nature and purpose is far from self-evident. (12) Reconciliation between Indigenous peoples and the Crown is an abstract aspiration. (13) In particular, efforts to overturn federal legislative discrimination have largely failed; rights discourse has not yielded significant victories for Indigenous peoples in Canada in this regard. (14) Despite strong academic commentary that section 35(1) of the Constitution Act, 1982 (15) recognizes and affirms a right to Aboriginal self-government, (16) the Supreme Court of Canada has not recognized this power. (17) The federal Indian Act (18) stands in the way of good Indigenous governance while remaining resilient in the face of rights challenges. (19)

Since 1876, the federal Indian Act has inappropriately detracted from First Nations' power. The Act flows from the idea that Indigenous people are inferior and must be schooled in Canadian forms to hasten assimilation. (20) The Act is explicitly designed to rupture First Nations socio-political relations and forcibly absorb individual Nation members within broader Canadian society. (21) Its formal operation has devastating effects. Its underlying philosophy damages most everyone it touches. Its provisions narrowly define and heavily regulate Indigenous peoples' citizenship, (22) land rights, (23) succession rules, (24) political organization, (25) economic opportunities, (26) fiscal management, (27) educational patterns, and attainment. (28) The Act makes First Nations largely subject to provincial legislation and regulation without their consent. (29) It usurps First Nations' authority and responsibility to deal with their own problems in an effective way.

This article examines the ineffectual nature of rights discourse as it relates to overturning the Indian Act. It argues that rights could be more successfully employed if Indigenous peoples' own views about them were given greater prominence. In so doing, this article advances the Supreme Court's recognition that "it is possible, and, indeed, crucial, to be sensitive to the aboriginal perspective itself on the meaning of the rights at stake." (30) Seeing rights as perspectival brings them into the real world. It helps us see that rights are subjective. They are human-centered creations; they do not embody objective truths. Viewing rights in this way liberates Indigenous peoples from fully embracing or rejecting them. Rights should be seen for what they are--helpful for some purposes, harmful for others. A selective invocation of rights discourse does not require the adoption of a worldview that puts rights at the centre of life. While particular worldviews may have generated rights discourse, thus making their use an extremely risky affair, (31) the future effects of these worldviews are not preordained. (32) Contemporary legal politics is rife with ambiguities, contingencies and uncertainties. Rights are neither necessarily individuated, liberal constructs, (33) nor inevitably receptive to Indigenous collective concerns. (34) Rights are susceptible to human manipulation and progressive application, though we must always respect and see truths in claims to the contrary. (35)

This article unfolds in four parts. Part I further discusses the contingent nature of rights. Part II addresses federalism in relation to the Indian Act. It suggests that section 35(1) of the Constitution Act, 1982 should be interpreted to prevent unilateral action by Parliament when Indigenous governance is at issue. Part III argues that rights discourse should be used to repudiate the presumed extinguishment of Aboriginal rights by implication in Canada's historic and contemporary jurisprudence. The assumption in the Sparrow case, that the Crown could unilaterally extinguish rights prior to 1982, is offensive. It does not advance a politically persuasive point of view, particularly when considering Indigenous perspectives on the meaning of the rights at stake. In advancing this theme Part IV argues that the Indian Act has not extinguished Indigenous governance rights under doctrines of sovereign incompatibility, actual consideration of the conflict, or explicit legislative enactment. Furthermore, the fact that the federal government has regulated Indigenous governance in great detail does not amount to the extinguishment of Indigenous governance. The federal government has explicitly recognized First Nations' customary powers to exercise authority in relation to governance, land, and broader organizational questions. (36) These points all lead to the conclusion that Indigenous governance is a pre-existing and unextinguished right under section 35(1). First Nations governance should be recognized as existing, not as a result of the universal or abstract nature of Aboriginal rights, but because these rights have not been--and should not be--politically eclipsed by contrary federal action.

1. THE CONTINGENCY OF RIGHTS

   When using rights as political tools First Nations people could argue that the Indian Act contravenes Aboriginal and treaty rights protected in section 35(1) of the Constitution Act, 1982. In fact, any statute that infringes upon Aboriginal and treaty rights could be subject to challenge under section 35(1). As noted earlier, such arguments would not claim ultimate truths about the world. Throughout history, and even at present, societies have organized themselves in different ways. Societies have appealed to other values in seeking to improve their relationships. Rights are a relatively recent invention and, while they are a vast improvement over many ways of dealing with conflict, they are not timeless or universal. (37) As John Gray observed: "Human rights are not immutable truths, [nor are they] free-standing moral absolutes whose contents are self-evident. They are conventions, whose contents vary as circumstances and human interests vary." (38) Applying John Gray's observation to Canada's particular circumstances, Indigenous rights could function as conventions--"as convenient articles of peace, whereby individuals and communities with conflicting values and interests may [find ways] to co-exist." (39)

   In making this argument it must be stressed that it is not only Aboriginal rights that are contingent and conditional on their surrounding contexts. (40) My central argument is that rights in general are not fundamental to a free and democratic society. (41) They are very, very, very important in our current mode of organization. They are "strong ethical pronouncements as to what should be," (42) and their robust use in contemporary jurisprudence is understandable. (43) However, it is also important to simultaneously acknowledge that rights are not essential to human dignity and prosperity. (44) Rights have a downside. They can even be undesirable in certain instances if they diminish democratic debate and engagement. (45) Yet it is true that it is difficult to imagine human flourishing without rights, at least in our present circumstances, and I would hate to see rights go under our current framework. In fact, I want to preserve and strengthen their development and application, as long as their limitations are recognized. (46) If we claim that rights are fundamental, we overreach. Such claims can create false horizons which limit our imagination and action in the real world. (47) Rights discourse may prevent us from seeing other viable alternatives in challenging domination. (48) In this respect I am anti-fundamentalist when it comes to rights and other essentialized legal constructs. (49)

   In fact, I worry when rights attract an almost religious aura in legal circles. A faith in their disembodied reality seems analogous to a hollow form of faith in God. (50) Rights discourse often replicates forms of dogmatic doctrinal adherence that echo religious sectarianism. (51) Rights followers can even be divided into different dominations, such as those who see political rights as separate from economic and social rights. Of course, some rights followers are more ecumenical and do not see dichotomies in political, economic and social rights. (52) Nevertheless, the supremely elevated status of rights troubles me, if not put into context. For religionists, it would seem to border on idol worship to replace God with a human construct--like rights. If one does not believe in God, it may nevertheless be troubling to see how rights can attract the kind of reverence and deference that religionists often reserve for God. (53) As a thought experiment, I can almost imagine the first four commandments of rights discourse:

   1 And RIGHTS spake all these words, saying,

   2 I am RIGHTS thy a priori Form, which have brought thee out of the pre-societal state of nature, out of the house of bondage.

   3 Thou shalt...