From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights

  • From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights
    by Patrick Macklem, Douglas Sanderson
  • From Treaty Peoples To Treaty Nation: A Road Map for All Canadians
    by Greg Poelzer, Ken S. Coates

Reviewed by Neil Vallance

.

The titles of the books under review possess a certain similarity, each promising to take the reader on an intellectual journey towards a better relationship between First Nations and Canada. Both books strongly argue that an understanding and articulation of First Nation perspectives is a necessary next step towards reconciling the divergent points of view that are now being voiced. However, there is a parting of ways when it comes to intended readership. The collection of essays co-edited by Macklem and Sanderson is addressed strictly to academics and legal counsel, while the target audiences of the work co-authored by Poelzer and Coates are Canadians in general and policy makers in particular. One might well ask why these books are reviewed together. The goal is not so much to make comparisons as to demonstrate how the two approaches complement each other.

The nineteen essays contained in From Recognition to Reconciliation are the result of a conference held in 2012 to commemorate the thirtieth anniversary of Section 35 of the Constitution Act, 1982. As with most conference collections, a miscellany of topics is bunched by the editors into somewhat artificial categories. The first four essays, by Macklem, Mark D. Walters, Jeremy Webber, and Brian Slattery, come under the umbrella of “Reconciling Sovereignties.” To anyone confused and frustrated by the literature on sovereignty as it relates to First Nations in Canada, these works are a welcome tonic. The writing is clear and collectively the essays tease out the tangled skeins of this fraught subject. The second theme is “the methodologies [and epistemologies] at play in legal and political questions involving Indigenous peoples” (8), with contributions by Paul McHugh, Dale Turner, and Jean Leclair. The third part deals with “Constitutional Consultations,” in which the contributions by Dwight Newman, Michael J. Bryant, and co-authors Sari Craben and Abbey Sinclair offer useful commentaries on the rapidly evolving case law in this area. The fourth section, “Recognition and Reconciliation in Action,” is a grab bag of interesting topics including non-status Indigenous groups (Sebastien Grammond, Isabelle Lantagne, and Natasha Gagne), tribal membership boundaries (Kirsty Gover), legislative reform (Douglas Sanderson), transitional justice (Courtney Jung), and Nunavut self-reliance (Natalia Loukacheva). The final section is devoted to comparisons with other jurisdictions. Jacinta Ruru considers the applicability of Section 35 jurisprudence to New Zealand, where the Treaty of Waitangi does not enjoy constitutional status. In a comparison of Canadian and United States legislation, John Borrows argues that American willingness to acknowledge a form of Indigenous sovereignty has resulted in a greater degree of self-determination south of the border. Megan Davies and Marcella Langton discuss constitutional reform in Australia, but make only a limited comparison with Canada. A final short essay by Michael Ignatieff widens the comparative lens to include “The Indigenous International and Jurisprudence of Jurisdictions.” All in all this is a fine collection, which should be read by all specialists in the field. Of course, it would be incomprehensible to a general readership, the very audience Poelzer and Coates hope to attract with their well-written book.

Poelzer and Coates are hoping to attract a very different audience in From Treaty Peoples to Treaty Nation. The first things of note are the accessible writing style and the care taken to provide the reader with a thorough grounding in the main theoretical arguments at play. The make a symbolic but important point by leading off with a section entitled “Aboriginal Leaders and Scholars Point the Way,” before presenting a selection of “Non-Aboriginal Views on the Way Forward.” The authors conclude the background half of the book with a section describing “Aboriginal Success Stories” before launching into their view of appropriate “Steps towards Social, Political and Economic Equality.” Here the two career academics are clearly stepping outside their comfort zone, and are to be commended for doing so. Instead of yet another collection of bromides, they offer what they believe to be practical ways for First Nations to participate as equals in Canada’s social, political, and economic fabric. One of their key recommendations is the abolition of the Aboriginal Affairs Ministry in favour of “a Commonwealth of Aboriginal Peoples,” which would be “a unique, Aboriginal controlled, Canada-specific organization tasked with overseeing all Aboriginal programs and services in Canada,” and would also “supervise all Aboriginal lands, membership lists, and trust funds” (214-5). Radical thinking indeed! In general, the policy steps promoted by the authors are drawn from the work of theorists already reviewed in the first half of the book. In other words, they have undertaken the delicate task of foregrounding some while ignoring others. The only weak chapter is “Finding Common Economic Ground,” the brevity of which (thirteen pages) leads to inadequate discussion of the ideas promoted. For example, they uncritically endorse Hernando De Soto’s arguments in his controversial book, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (2000), and recommend that “Canada should change its property ownership rules on First Nations reserves to permit individual ownership of houses and land” (259), without mentioning the potential drawbacks of such a scheme.

While readers (including this reviewer) may disagree with the utility of Poelzer and Coates’s recommendations, the book can be counted a success if it provokes thoughtful debate among a wide range of Canadian readers and encourages the production of more books aimed at a general audience. While the Macklem and Sanderson volume will not reach the lay reader, it does provide the essential theoretical underpinning for future attempts to convey to Canadians the complexities of their evolving relationship with First Nations.

From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights
Patrick Macklem and Douglas Sanderson, editors
Toronto: University of Toronto Press, 2016. 496 pp. $42.95 paper

From Treaty Peoples To Treaty Nation: A Road Map for All Canadians
Greg Poelzer and Ken S. Coates
Vancouver: UBC Press, 2015. 366 pp. $95.00 cloth

 

BC Studies no. 192 Winter 2016/17