Vol. 11 (September 2001) pp. 430-433.

INDIGENOUS DIFFERENCE AND THE CONSTITUTION OF CANADA by Patrick Macklem. Toronto: The University of Toronto Press, 2001. 334 pp. Cloth: $70.00. ISBN: 0-802-041957. Paper: $27.95. ISBN: 0-802-080499.

Reviewed by Tom Jewiss, Native Law Centre, College of Law, University of Saskatchewan.

Indigenous difference in Patrick Macklem's new book refers, rather than to the vast differences among Indigenous peoples, to the historical and political realties that distinguish Indigenous peoples in Canada from the non-Indigenous majority (All terms used to reference Indigenous people--"Indigenous," "Aboriginal," Native,"--are capitalized in this review, following the practice of THE CANADIAN NATIVE LAW REPORTER which is the legal reporter for Aboriginal law cases in Canada. It maintains the practice as a matter of respect). It is certainly not a new theme for Canada's Aboriginal population who have been dealing with it for more than four hundred years since the first significant contact with Europeans in what is now eastern Canada. Even the academic community has been discussing it for more than thirty years. However, it is a theme that is timelier than ever as mainstream political leaders in Canada have returned in force to the notion that everyone must be treated the same. With the right-wing Alliance Party as the Official Opposition in Canada's Parliament, even the Liberal government has moved sharply to the right on issues of Aboriginal rights, and after thirty years of progress in the recognition of Aboriginal rights and title, both judicially and politically, the dominant political attitude has shifted back toward the assimilation of Aboriginal peoples with no greater or different rights than other Canadians.

Macklem's book is also an articulate reminder that Aboriginal people in Canada have already endured several failed assimilation strategies, the most notable of which was based on the federal government's White Paper of 1969. In fact, INDIGENOUS DIFFERENCE AND THE CONSTITUTION of CANADA just happens to have been published within two months of the First Nations Governance Act (FNGA) initiative, labelled by Indigenous leaders in Canada as "White Paper
2001." Both the 1969 White Paper and the FNGA deal with sameness while INDIGENOUS DIFFERENCE--as the name implies--and most Aboriginal political
organizations in Canada, stress the reality of, and entitlement to, difference based on legal, political and social history. The federal government of Canada, under present Prime Minister Jean Chretien, has made it clear that it intends to limit further gains in Aboriginal rights and title by focussing policy, debate and now legislation on steering Aboriginal peoples into the mainstream. Its methodology includes trading compensation based on admitted past wrongs for the relinquishment of the present rights and benefits - limited as they are--to which certain Indigenous people in Canada are entitled.

Macklem challenges this notion through nine distinct chapters that each deal

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with an aspect of Canadian-Indigenous relations, and although the chapters are strongly connected and follow a logical sequence, some stand alone as important essays in support of Macklem's thesis and central argument. For example, chapter seven, titled "Indigenous Difference and the Charter," examines how the rights and freedoms, guaranteed to all Canadians by The Canadian Charter Of Rights And Freedoms, which is Part I, or the first 34 sections, of the Constitution Act, 1982, bear on the constitutional relationship between Aboriginal people and the Canadian state. The Charter was created to protect the individual rights of Canadians and operates much like the corresponding articles of the United States Constitution in that respect.

Macklem supports those scholars who fear that the protection of equality rights for the majority of Canadians threatens to erode the strength of Aboriginal cultures still based upon collective values of community and governance. However, at times he appears to speak of the great diversity of Aboriginal cultures as if they can be addressed collectively.

Nevertheless, Macklem analyzes the complex relationships between cultural protection and individual equality rights and between public and private powers (the Charter is primarily concerned with public law and public power) and deals with the question of whether Aboriginal governance constitutes public or private power. This is a daunting task, not only because of the complexity of issues, but also because Canadian courts are still far short of definitive interpretations of the applicable sections of the Charter with the Constitution still less than twenty years old.

Macklem confronts these challenges and the internal and reverse Charter challenge created by section 25 which directs the courts not to interpret the Charter to "abrogate or derogate" from the rights of Aboriginal people. Some First Nations citizens, notably women, fear that this section is being used to perpetuate problems such as male-dominated First Nations governments ("First Nations" is not a legally defined term, but it is the accepted and widely used term for: (1) the land base occupied by status Indians--the reserve which is similar to "reservations" in the United States; and (2) the Indian band and its members who occupy and use the reserve land base, including those members who may not be resident on-reserve). As he does in each chapter, the author uses extensive case law, established academic discourse and an analysis based on his own wealth of experience as a constitutional law professor at the University of Toronto to respond. Although some scholars would not agree, Macklem suggests that the Charter "authorizes judicial reorganization of Aboriginal societies according to non-Aboriginal values." Whether that is a Charter purpose or not, it does compromise, if not endanger, Indigenous difference. In response, Macklem points out that the Charter also contains sections that may be implemented to minimize negative effects and, more importantly, that section 25 ought to (and does thus far) act as "shield" for laws that protect Aboriginal political, cultural and territorial interests. Similarly, other chapters of INDIGENOUS DIFFERENCE examine state obligations, land rights, treaty
obligations and other issues as the book sets out Macklem's thesis.

Macklem's general thesis is that Indigenous difference "possesses constitutional significance" and that the Constitution Act 1982, through three sections which deal very directly with the rights of, and jurisdiction for, Aboriginal

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Peoples of should protect cultural differences, along with treaty rights, unextinguished Aboriginal title to large areas of Canada's land base, sovereignty, and the recognition of rights such as tax exemptions and funding for education Canada ("Aboriginal Peoples of Canada," is the official Government of Canada term used for general reference to all Indigenous peoples in Canada--status Indians, non-status Indians, the Metis and the Inuit). The extension of the thesis and an element of Macklem's methodology is that constitutional recognition of Indigenous difference actually furthers equality.

Equality itself, however, is somewhat problematic in INDIGENOUS DIFFERENCE because Macklem appears to have fallen into the trap of many commentators on Aboriginal rights - the failure to note and then deal with the arbitrary, but solidly legal, differences among Indigenous peoples in Canada that were created by colonial powers and perpetuated by the Canadian state. The author gives brief mention in his introduction to the Metis people who alone constitute about a third of the Indigenous people of Canada. Not directly considered at all are the vast numbers of non-status Indians--those who by legislative legal definition are not Indians according to the federal government--and the Inuit who form the overwhelming majority in the new Nunavut Territory. Thus, when Macklem discusses Indigenous or Aboriginal people, his reference is to the minority, who are registered as "Indians" with the government, and their reserve or First Nations lands. Unfortunately, that approach perpetuates the very divisiveness fostered by the Indian Act (R.S.C. 1985, c. I-5) that created the divisions. Notably missing is the fact that, rather than being engaged in debate about the dimensions and protection of their rights, most Aboriginal peoples in Canada do not have any distinct legal rights.

Also unfortunate in this and other respects is the use of the term "Indigenous," which suggests inclusion of all Aboriginal peoples, in the title and throughout the book. Although the author has his own justification for the application of the term, it is a term rarely used by Aboriginal people in Canada and all but non-existent in Aboriginal organizational names. From a legal perspective, it is more problematic because it is not used in the Constitution or in any legislation dealing with Aboriginal people.

More positively with respect to his thesis, Macklem has made a safe assumption that mainstream Canadian politics have moved to the right on Aboriginal rights and title issues, and Canadian courts were already indicating a willingness to follow as he was writing and publishing his INDIGENOUS DIFFERENCE. In anticipation, he has provided legal strategies that those who advocate in this field will recognize and understand, and supporters of Aboriginal rights will hope that the judiciary also read the book. The author has stated the obvious for the experienced, but it is both basic and advanced for the less initiated. Also, while INDIGENOUS DIFFERENCE is more like an advanced thesis than a teaching text, an upper year class in advanced Aboriginal law at Canadian law schools could well use it.

Two other points bear mention. First, Macklem consulted extensively with Aboriginal people, and while that did not cure the mentioned problems with exclusivity, it allowed significant inclusion of Aboriginal views both at the scholarly and community levels. Second, the author set his introduction and conclusion on

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Manitoulin Island, a very large island in Lake Huron, and, unlike any other location in southern Canada, a place where Aboriginal and non-Aboriginal peoples are equally distributed by population and manage to coexist very well. Like the present state of Oklahoma in the U. S., Manitoulin was originally set aside as "Indian territory" in perpetuity, and also like Oklahoma, the promise of exclusive rights to territory was broken and the island was opened to settlers. More importantly for Aboriginal people in the present, Manitoulin remains the location of many sacred sites. It was a place where Ojibway, Odawa and Potawatomi leaders and healers sought visions. Some of those visions predicted accurately that Aboriginal people would survive and be strong against impossible odds in the face European
colonialism. Macklem makes the connection between that survival, with great loss, and constitutional recognition of the surviving differences in the form of Aboriginal sovereignty and territorial integrity.

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Copyright 2001 by the author, Tom Jewiss.