You still know nothin' 'bout me: toward cross-cultural theorizing of Aboriginal rights.

• Author: Newman, Dwight G.
• Position: Canada

Moral and political theorists like Will Kymlicka have attempted to frame moral justifications for Aboriginal rights in ways that fit with the principles of liberalism. By contrast, the Supreme Court of Canada has repeatedly invited consideration of "Aboriginal perspectives" in its case law on Aboriginal rights. How to approach Aboriginal rights issues is an immensely important question given the range of identifiable cultural gaps between Aboriginal and non-Aboriginal understandings of relevant matters. The author seeks to forward the enterprise of a theory of normative discourse for cross-cultural settings. He engages with and endeavours to build on Charles Taylor's account of "unforced consensus" on human rights issues in order to develop certain methodological claims concerning moral theorizing in a cross-cultural setting, attempting to draw some further distinctions to flesh out an approach to cross-cultural moral theory. The author goes on to argue that moral theorizing in the context of Aboriginal rights issues has failed to live up to appropriate methodological demands and that the conclusions of this paper have implications for a range of judicial and policy contexts.

Des theoriciens de l'ethique et de la Science Politique, tel Will Kymlicka, ont tente de conceptualiser les justifications morales des droits des peuples autochtones, de maniere a ce que ceux-ci soient en accord avec les principes du liberalisme. A l'oppose, la Cour Supreme du Canada, dans sa jurisprudence ayant trait aux droits des peuples autochtones, a, a plusieurs reprises, exige d'accorder plus de consideration au point de vue des autochtones. La facon d'aborder la question des droits de ces peuples est d'une importance capitale vu l'ecart culturel notable qui separe les autochtones et les non autochtones quant a la comprehension de ces questions significatives. L'auteur s'investit dans la formulation d'une theorie du discours normatif dans un cadre interculturel. L'auteur ancre son questionnement sur les ecrits de Charles Taylor, concernant le > sur la question des droits de l'homme, dans le but de developper et de batir certaines affirmations methodologiques quant a la theorisation normative dans un contexte interculturel, s'efforcant ainsi de dresser plus de distinctions visant a etoffer une theorie de l'ethique interculturelle. L'auteur soutient que la theorisation normative, dans le contexte des droits des peuples autochtones, a echouee car celle n'a pas pu adequatement repondre aux exigences methodologiques et maintient que les conclusions emanant de l'article ont une portee de grande envergure autant dans des contextes juridiques que politiques.

Introduction I. Section 35 Case Law and Cross-Cultural Understandings II. Cross-Cultural Dialogue and "Unforced Consensus" III. Kymlicka, Collective Rights, and Aboriginal Conceptions IV. Implications For better or worse, it is predominantly non-aboriginal judges and politicians who have the ultimate power to protect and enforce aboriginal rights, and so it is important to find a justification of [these rights] that such people can recognize and understand.

--Will Kymlicka (1)

Aboriginal rights cannot, however, be defined on the basis of the philosophical precepts of the liberal enlightenment. Although equal in importance and significance to the rights enshrined in the Charter, aboriginal fights must be viewed differently from Charter rights because they are rights held only by aboriginal members of Canadian society.... The task of this Court is to define aboriginal rights in a manner which recognizes that aboriginal rights are rights but which does so without losing sight of the fact that they are rights held by aboriginal people because they are aboriginal.

--Chief Justice Antonio Lamer (2)

Introduction

Prominent non-Aboriginal political theorists who have argued for Aboriginal rights, notably Will Kymlicka, have sometimes suggested that effective advocacy of Aboriginal rights in courts and other decision-making bodies requires the excision of certain elements of Aboriginal thinkers' own conceptions of Aboriginal rights. Kymlicka's claim in the epigraph above has been described by one Aboriginal philosopher as a "brutal reality check" for Canada's Aboriginal peoples. (3) However, the Supreme Court of Canada has repeatedly purported to be open to "aboriginal perspectives" and has even mandated that these perspectives be considered. (4) Although Aboriginal perspectives will often arise from Aboriginal traditions or concepts accepted as fitting a legally pluralistic transsystemia, (5) the Court has implicitly opened itself up to moral ideas from different world views. The Court arguably seems bolder, at least in theory, than many political theorists. (6) Witness, for example, statements like that of Chief Justice Lamer in the epigraph above, in which he expresses a readiness to see Aboriginal rights defined differently than traditional liberal rights. (7)

Although we are beginning to see the formation within Canadian law of a set of concepts related to Aboriginal rights, (8) the ultimate shape of these concepts has been and will remain highly influenced by political and moral theory. The relevant bodies of law on Aboriginal rights are so open textured that no judicial body could apply them and actually reach legal results without applying further legal and moral principles. (9) Section 35 of the Constitution Act, 1982 "affirms existing rights" without explicit reference to sources for these "existing rights". (10) Section 25 of the Canadian Charter of Rights and Freedoms, (11) requiring that Charter rights "not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights and freedoms that pertain to the aboriginal peoples of Canada," (12) presents complex interpretive puzzles that demand thorough theoretical analysis. (13) We could multiply the examples, and we would amplify the point that these are bodies of law demanding moral theory for their application. Courts have dealt with that fact by relying heavily on academic moral theory literature in cases that require them to interpret section 35 of the Constitution Act, 1982. (14)

This reality raises the question of how moral theorizing should take place in a cross-cultural context. Does the nature of a cross-cultural context affect methodologies for undertaking moral theory analysis in ways that are similar to its impact on other matters like approaches to dispute resolution? (15) One initial response might be that moral theorizing, unlike matters dependent on actual types of cultural behaviour, is immune to cross-cultural factors except insofar as it might make cross-culturally objective statements about how disputes are to be settled in normatively acceptable ways. Those maintaining this traditional view might well see any suggestion to the contrary as the result of an insidious movement of the forces of multiculturalism into sacrosanct realms. (16)

In this essay, I draw on and engage with Charles Taylor's account of "unforced consensus" on human rights issue (17) to offer a different response, nevertheless steering clear of the relativism that traditionalists fear. Without making a claim that the substance of moral theory on matters like Aboriginal rights has any particular cultural content, I will argue that methodologies for moral theorizing can be affected by culture and that the failure to account for this reality has the potential to undermine the ability of theorists to arrive at the best normative accounts. In only this latter sense--that failure to consider the cultural dimensions of methodology may undermine the search for best answers--those normative accounts that fail to engage cross-culturally, in preferring particular culturally affected norms without adequate justification, may be suspect. They in turn fail to live up to the challenge of offering a moral theory that can assist areas of the law that must function cross-culturally.

Particular legal doctrines within the corpus of law relating to Canadian Aboriginal issues--even where less open textured--demand some sort of cross cultural analysis. (18) We might name, among others, principles of interpretation that address the meeting of minds between different cultural groups in treaty formation and the like, (19) alterations to rules of evidence to accommodate Aboriginal oral history materials, (20) consultation requirements, (21) and, generally, the legal principles concerned with the concept of "reconciliation". (22) We could also point to Chief Justice Lamer's call for theories of Aboriginal rights that reconcile liberalism and the other moral frameworks needed to understand Aboriginal rights. (23) Again, the Supreme Court of Canada is seeking a mode of theorizing that political theorists have generally been reluctant to provide, though Mark Walters has recently dramatically transformed the face of Canadian legal theory with his powerful argument that a failure to show adequate respect for Aboriginal legal perspectives may undermine the conditions for the system's legality. (24) Although the topic of moral or political theory methodology might at first glance seem somewhat removed from the legal realm, it actually has vital implications both for law and for legal legitimacy.

In one sense, this should not be surprising. Brian Slattery's classic account of Aboriginal rights as a body of legal doctrine

that defines the constitutional links between the Crown and aboriginal peoples and regulates the interplay between Canadian systems of law and government (based on English and French law) and native land rights, customary laws, and political institutions (25) makes clear the degree to which Aboriginal rights law involves the interaction of different legal systems. As Nicholas Kasirer has recently reminded us, a legal system carries with it particular values, systems of thought, and intellectual traditions. (26) Any understanding...