The Rights Revolution (10 page)

The issue of whether group rights should prevail over
individual ones, and the larger issue of whether Canada is a single political space or a multiplicity of national spaces, has proved irresolvable. In this situation of total impasse, a 1995 proposal by the Quebec government that the nation be dissolved altogether lost a referendum in the province by fewer than 60,000 votes.
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Since that “near-death experience,” the only consensus to emerge is that we should postpone everything — whether it be separation or a renewed union — until we have all thought further. The fervent desire to find either common ground or the terms of divorce has been replaced by a tacit contract of mutual indifference.

The whole story may be taken as a parable about the futility of rights talk itself. The minute groups start claiming rights, self-righteousness begins and conflicts become irreconcilable. Nations can’t survive too much self-righteousness. Indeed, if a nation were only a community of rights-bearers, it wouldn’t survive at all. Happily, nations are more than a tissue of rights. They are highly complex divisions of labour, and as Adam Smith taught us, people collaborate with each other without intending to benefit the country, indeed without intending any other benefit than their own interest. If we think of Canada not just as a rights community, but as a division of labour, a highly efficient economic machine held together by millions of financial, social, and technological connections, we feel better immediately. We may not agree with each other, but we do know how to work together. So our arduous constitutional experience has taught us that countries can endure and cohere, even
on the edge of a rights precipice. That should teach us that what holds us together is deeper than rights and constitutions and political deals in backrooms. We are held together by what we do every day. We’re also held together by memory, and by the attachments to land and neighbourhood, people and places that are dear to us. These ties are deep, and so there is no reason to despair. We simply agree to disagree.

Yet we do need to find a better way to resolve our rights conflicts. We need to find a way to reconcile the green-baize vision of our country — as a community of rights-bearing equals — with the patchwork-quilt vision of our land as a network of overlapping forms of self-government.

Though these are competing visions, they are not impossible to reconcile in practice. Group rights that do respect individual rights of exit and the rights of minorities within the group never pose a problem. Quebec language legislation is actually a model of a conscientious attempt by two language communities to work out a reasonable
modus vivendi.
Of course, the larger issue of Quebec’s future within the Canadian federation remains unresolved, and I will discuss this in my final lecture, but for the moment I simply want to make the point that where conflicting visions of group and individual rights once dogged the Quebec-Canada relationship, a working resolution of these claims has now been achieved, at least in respect of language.

Likewise, the agonizing history of group rights claims by aboriginal peoples has entered a new phase of genuine
mutual recognition and negotiation. Aboriginal groups have consistently argued that their treaty claims to land and resources are based on an ideal of sharing use rights with others, rather than a European model of exclusive ownership. When sharing is the intention, resolution is possible. The problem is how to create the good faith to share between peoples who have such a long history of hurt and injury between them, and in particular, how to adjudicate disputes when sharing fails.

As aboriginal leaders have been saying, and as a recent Canadian Royal Commission on Aboriginal Peoples has argued, the best way to address both issues is through a treaty-making process.
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This process recognizes the existing treaty obligations of both parties, and it also acknowledges that both parties come to the table as equal nations. The purpose of negotiations is not just to define title to land and resources, and not just to turn over powers of local administration to legitimate aboriginal authorities, but also to find a way to share the sovereignty of the national territory. This issue presents both sides with exceedingly difficult problems of principle. For a Canadian government even to enter into negotiations with aboriginal nations about sharing sovereignty is to concede that the sovereignty they are discussing is a patchwork quilt of overlapping jurisdictions (of which the national or federal power is only one of three). For aboriginals, discussions about sharing sovereignty require accepting the legitimacy of a government that presided over their despoliation as a people. This double process of recognition has been exceedingly hard, and it
is not yet concluded. It may take generations before it is completed and a genuine spirit of sharing becomes possible. The treaty process is designed, therefore, as a course of joint problem solving and mutual recognition.

The problem of sharing sovereignty is not just a matter of working out a division of powers — reserving for the federal government such domains as foreign and defence policy, banking, currency, and citizenship, for example, while leaving to aboriginal peoples the administration of local lands, resources, education, infrastructure, and social services. Instead, the key issue is the unity of Canadian citizenship.
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The non-aboriginal majority believes that the rights protections of the constitution should prevail, while some aboriginal nations deny the jurisdiction of the Charter over such matters as women’s rights to participate in decision making or the rights of non-aboriginals who live on aboriginal land. Other aboriginal groups may wish to deny access to their nation on the grounds that the individual seeking membership lacks the right lineage. Yet any use of ethnic, racial, or blood-related criteria for membership in any Canadian group violates Charter rights to civic equality.

In these contentious cases, the right way to approach a solution is not to ask which sovereignty, Canadian or aboriginal, must prevail, but to ask how Charter protections can be reconciled with aboriginal traditions so that the result is legitimate to both parties. And how should joint institutions be designed to do so? Eventually, such matters end up in court, first in the aboriginal courts and then eventually in Canadian superior courts. At all levels,
the process of resolution has to be one of intercultural negotiation between equal partners. Equality is mandated by our rights traditions, and so is respect for difference. So Charter protections must be not only respected but also interpreted with due regard to aboriginal custom. The question that has to be answered in this process is not whose rule prevails, but whether the decision that is reached commands the assent of the parties. Achieving legitimacy in the decision should matter more than sovereignty. If we could reinforce the legitimacy of joint decision making, the effect of sharing sovereignty over these decisions would not be to balkanize the country, but the reverse: to increase the felt legitimacy of the decisions and choices that a country has to make.

Most Canadians believe the laws of Canada, especially criminal laws, should be applied and enforced uniformly across all jurisdictions. But if federal or provincial judges sit with aboriginal partners in courts in areas under aboriginal government, and if each group’s legal tradition is given the interpretive respect it is owed by the other, it should be possible to arrive at the result that both want (i.e., equal justice for both aboriginal and non-aboriginal Canadians). The strongest incentive to co-operate lies in the plain fact that at the moment they do not, and until Canadian justice acquires legitimacy in the eyes of aboriginal citizens, we will not live in a country that commands their assent.

The process of working out how to share sovereignty is diabolically complicated, protracted, and expensive. Some aboriginal groups are seeking aboriginal government
(i.e., control over their own population, lands, and affairs). Here there are substantial problems of institutional competence and experience, and there have been instances where self-government on reserves has been corrupt, inefficient, or nepotistic.
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Aboriginal peoples would not want their standards of fiduciary responsibility in government to be any less stringent than those required of Canadian municipalities. Other aboriginal peoples, such as those in Nunavut, the vast, new self-governing territory in the Eastern Arctic, are seeking control of a public government — that is, one that rules both aboriginals and non-aboriginals alike. Here the problem is to balance what is in effect ethnic majority rule with minority-rights protections and guarantees of public participation to minorities. And a third group, mostly those resident in cities, is seeking effective control of local services.

Each of these types of self-government is different, each overlaps with other jurisdictions, and each of these overlaps must be harmonized in a spirit of sharing. The units seeking these rights of self-government are often small, divided within themselves and against each other. In one Canadian province alone, there are fifty-one groups, each claiming the title of nation, in negotiation with the provincial government over land claims.
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Some of these negotiations have been in formal process for more than a quarter of a century. The costs to both sides, in every sense, have been huge. But there is simply no alternative. Assimilation, forced or otherwise, has been tried and rejected. Recent conflicts between aboriginals
and non-aboriginals over rights to land have erupted in violence, and in the case of Oka the violence was contained only by the interposition of the army. It is clear that we cannot go on like this. Either we must share power, land, resources, and sovereignty among the nations of this country, or we will founder in civil strife.

But the sharing has to go both ways. The majority’s recognition of aboriginal peoples must be followed by aboriginal recognition of the legitimacy of our equal claim to the land. We will not survive if a resentful majority, harassed by guilt-mongering, is simply forced from one concession to another by threats. What is required is a process that builds a mutual and equal recognition, each side publicly acknowledging the other’s right to govern and live in peace. At the moment, might lies with the majority and right with the minority. Mutual recognition must rebalance the relationship, with both power and legitimacy finding a new equilibrium. Then, and only then, will we be able to live together in peace in two countries at once, a community of rights-bearing equals and a community of self-governing nations.

D
URING THE PAST FORTY YEARS
, the rights revolution has penetrated the most intimate spheres of private life. As rights talk moved from the public sphere to the family dinner table and then into the bedroom, it overturned sex roles, the family division of labour, and sexual identity itself. The rights revolution has become a sexual revolution, and in the process, it has transformed all our most important social relationships: between men and women, between parents and children, and between heterosexuals and homosexuals.

All liberal democracies have gone through the same social transformation. The only distinctive aspect of the Canadian pattern has been the speed with which courts and legislatures have responded to demands for children’s rights, easier divorce, abortion rights, the equation of marriage and co-habitation, and the full entrenchment of rights to sexual difference. The fact that these rights were conceded speedily does not mean that they were
conceded without a struggle, however. Nor does it mean that the struggle is over. Women still do not earn equal pay for equal work and the burdens of unpaid child care still fall disproportionately upon them. Homosexuals still do not enjoy the same rights to marry, to adopt, or to inherit pensions and other assets from their spouses.
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Yet even though the rights revolution in private life remains unfinished, it is hard to imagine that it will not run its full course. The reason is simply that the rights revolution appeals to an idea of equality and against this idea there is no remaining court of appeal.

The demand for equal rights in intimate life is also a demand for recognition. I’ve said a lot about rights and very little about recognition. It’s time to define the term. Recognition is a very Canadian idea, since it was a Canadian philosopher, Charles Taylor, who first put it into common parlance among political philosophers.
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To recognize someone in common speech is to put a name to a face, to single him or her out from a crowd. To be recognized is to emerge from anonymity, to be seen and acknowledged for what you are. When you are recognized, you cease to be a nobody and you become a somebody in someone else’s eyes. Groups are fighting for a similar kind of recognition. They want the majority to recognize them, to see them anew, to acknowledge that they are equal, not only in law, but also in moral consideration. Equality of rights is the precondition for recognition, but it is not sufficient to ensure it. When individuals and groups seek recognition, they want their equality recognized, but they want their differences
acknowledged as well. Beyond legal equality, groups seek acknowledgment of the value of their culture, heritage, and distinctive point of view. Struggles for recognition typically require a group of people to recognize themselves first, to overcome their own shame or lack of self-worth and then project an image of themselves as they wish to be seen by the watching world. Once this process occurs, the struggle turns into a demand that the watching world change its view of the group, engage with its own clichéd or stereotyped views and reach out to its members both as equals and as people whose differences from the mainstream are to be acknowledged and welcomed.

The whole difficulty about recognition turns on the question of whether it means acquiescence, acceptance, or approval.
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When a majority grants a minority rights, is it required to acquiesce to, accept, or actively approve the practices of this group? Certainly gay groups, for example, are asking not just for toleration, but for approval. And approval seems to follow from the idea of equality. But does equality of rights necessarily require equality of approval? The majority has conceded equality of rights to homosexuals, but this seems not to imply approval, merely reluctant tolerance.