The Rights Revolution Read online

  This idea of equality, and the notions of fairness that go with it, gives us a particular vision of national belonging. The belonging consists in knowing that everyone shares more or less the same entitlements and the same responsibilities. When we map this ideal of equality onto the countries we actually live in, we get a picture of a nation as a single, homogeneous, and unified political space made up of equal individual units. No region has more power than any other — nor does any group.

  It’s no accident that this ideal looks like a model from the physics classroom. In late-seventeenth-century England, when political philosophers such as Thomas Hobbes and John Locke were imagining states as communities of equal individuals founded by an original compact in the state of nature, Isaac Newton was imagining physical space in an analogous way: atoms and molecules, units of pure mass, colliding in an undifferentiated medium called space according to the uniform laws of gravity. From that point on, political theory has recurrently sought to model politics as if it were a Newtonian science.

  If we move this Newtonian model from the physics classroom to the neighbourhood pool hall, the resulting metaphor looks like this: The pool table is the state. The individuals who make up the nation are the billiard balls. The laws are the bumpers, and the shared territory is the green baize. Now, this model holds that if the individuals in the game are not equal, not able to spin across political space with equal ease, then we should make them so. For the game to work fairly, every individual must be as round and smooth as every other.

  And that, of course, is where the trouble starts, and where the analogy between billiards and politics falls down. No one wants to have their edges rounded off, even if that means they can play the game better. They want to play the game on their own terms.

  If this is the case, the political problem that every nation has to face looks like this: How can we create a society where everyone has rights without flattening out the differences that give us our identity as individuals and as peoples? How do we recognize group differences without jeopardizing the unity of our country?

  Reconciling these objectives is difficult because creating equality and recognizing difference both imply a distinctive kind of political space. The equality project fits well with the Newtonian image of political space as unified green baize. The difference project implies a political space that looks more like a patchwork quilt.

  The dilemma we have is that we can’t actually choose one to the exclusion of the other. Nations have the characteristics of both. It is basic to the idea of the nation-state that all citizens should have the same rights, and that these rights should apply across the board. There may be different levels of government, but the constitution works out a division of powers so that there is as little overlap and conflict as possible. That’s the Newtonian model. No country, however, is only a Newtonian space. Nations are also historical creations, layered with the sediments of time, with old political systems still present just beneath the surface of functioning ones. In Canada, just beneath the political layout created by our act of union in 1867, there are the remains of the four colonial governments that existed before Confederation. Each of these colonies agreed to come into Confederation only if their differences were respected. The one with the greatest number of differences, of course, was the French-speaking colony whose laws, religion, and language were protected by British imperial acts going back to 1774. The Québécois would enter Confederation only if these distinct rights were incorporated into the constitution alongside guarantees to civic equality. This recognition was given, and from the beginning, therefore, Canada was both patchwork quilt and green baize.1

  The second peoples with original rights of their own were the aboriginals. An imperial proclamation of 1763 recognized their treaty rights, and hence their identity as separate nations, so bringing these peoples into a political confederation should have meant giving them equality as citizens while protecting their communal rights to be different. But that is not what happened. Aboriginal peoples were not given a place at the table when the new political order was created in 1867. Their pre-existing treaty relationships with settler peoples were ignored and their status as nations was dismissed. They were accorded neither the right to be different nor the right to participate in the new union as equals. Having been excluded from the founding of the country, they were made wards of the federal state under the terms of the Indian Act. This act excused them from certain obligations of citizenship, such as paying taxes, while denying them the right to represent themselves, to organize as a free people, and to control the lands and resources they depended on for their livelihood.

  In retrospect, it is clear why this happened. As long as aboriginal nations had the power to make war on settler peoples, settlers had a strong incentive to seek peace through treaties. As soon as these settler communities expanded to sufficient size to compete effectively with aboriginal tribes, the settlers claimed exclusive titles to land, ignored treaty agreements, and pushed Native peoples into the hinterlands. Rights were conceded when power was equal; rights were taken away when power flowed to the settler side. Originally, when the two communities met on nearly equal terms, respect flowed from mutual dependence. Respect disappeared when one side ceased to need the other, and when one side was in a position to impose its rule. When power relations changed, so did images of the aboriginal. At first contact, the dignity of Native peoples was as apparent as their power. By the time settlers had established dominion, however, the aboriginal was a dependant. Racial ideology legitimized what sheer force had achieved. Expropriation and the denial of rights were then defended on the grounds that aboriginals were inferior.

  Having dispossessed aboriginal nations, settler nations then set out to civilize them. Assimilation was to be the solution for aboriginal inferiority. To that end, aboriginal children were separated from their families, shipped away to residential schools, dressed in uniforms, housed in dormitories, and taught the Christian religion and obedience to Canadian law. The whole process of forced assimilation was much more than pure racism in action. It served a particular idea of democracy. Aboriginal peoples could become Canadian citizens only when they ceased to be aboriginals.

  This policy had catastrophic results, and these results are plain to see not just in Canada, but also in Australia, New Zealand, the United States, and Brazil — wherever aboriginal peoples were denied the right to rule themselves. This is more than a story of the damage done by racist contempt and imperialist arrogance. It is also a terrible demonstration of why rights matter. For any people, aboriginal or not, the right to be the member of a nation, to be respected as such, is a vital condition for personal respect, honour, and dignity. When such group rights to nationhood are stripped from a people, the individuals within the group often disintegrate. The lesson that follows is true for aboriginals and non-aboriginals alike: you can’t act effectively in the world and take responsibility for yourself unless you respect yourself. And you can’t do that unless your identity as member of a people is honoured by the political system in which you live.

  The larger lesson is that no matter how they are tried, forced assimilation policies are always a mistake. They either awaken national resistance or succeed at the cost of destroying the morale of the people they tried to assimilate. The message should be clear: you cannot create citizens by force — you must have their consent. The Russian empire sought to Russify the Poles in the nineteenth century. The empire failed. Poland is now an independent nation. The French Third Republic sought to turn Breton peasants into Frenchmen.2 They failed. The Breton language survives. All peoples will refuse to surrender what is precious to them — land, religion, and language — even when the compensation offered them is equality of citizenship as individuals.

  Thanks to the extraordinary historical tenacity with which aboriginal peoples have defended the memory of their nationhood and their treaty rights, the meaning they draw from the failure to assimilate them is clear: they must reacquire their rights
of self-government and take responsibility, at the individual and the collective level, for their destiny.3

  This fundamental lesson, however, is still not accepted by the majority community in Canada. You could blame this on simple racism, but that would be to ignore the real problem. Assimilationist policies would never have been pursued, despite clear evidence of their lack of success, had settlers not believed that a political community must be composed of people who share the same values, culture, and assumptions, and that political equality can be accorded only to those who are recognizably the same. Shedding this belief is hard, for it is an ideal and not just a prejudice.

  Aboriginal peoples are not the only ones to have run up against this idea that a political community requires equality and equality has to mean sameness. In the nineteenth and early twentieth centuries, the Québécois were also subjected — it is the only word — to this punitive form of equality as assimilation. Of course, the aboriginal experience was much worse, and it was different in kind. The Québécois were never denied civic equality with other Canadians, but they did experience the humiliation of being a majority within their own province dominated socially and economically by a linguistic minority. Still, the same premise — that to be treated equally, all citizens must be the same — made it impossible to create a country in which French-speakers felt genuinely at home. Recurrently, English-speaking provinces abridged or ignored the rights of French-speakers to educate their children in their own language. Recurrently, Quebecers concluded that a civic union based on equality of rights was a fraud, because it did not allow them to protect what was essential to their survival as a people.

  It would be convenient to believe that these problems now belong to an unhappy past. Unfortunately, Canada’s political history since 1968 can be told as the story of the unwillingness of the majority to discard the connection between equality, individual rights, and group assimilation. For this link is still held to be the key to keeping the country together. An essential figure in making this strategy explicit was Prime Minister Pierre Trudeau. He believed that rights equality for all Canadians might offer a way out of the emerging constitutional impasse between Quebec and Canada, and between aboriginal peoples and the majority community.4

  That’s how best to understand the rights revolution he spearheaded between 1968 and 1984. There was a deep symmetry in his approach. Faced with the demand by French Canadians that their language and culture receive special protection, Trudeau replied that what required protection was not the rights of a community but the rights of individuals, and that these rights should not be confined to a particular territory, Quebec, but should apply across the country. In legislation that he introduced in 1969, all Canadians were granted the right to bilingual services in French and English in all federal institutions.

  With Native peoples, Trudeau believed that the problem lay in their inequality as individuals, which in turn was the fault of the Indian Act. Under its terms, aboriginal peoples were made wards of the national government. They did not enjoy an equality of rights with other Canadians. Their social subjugation and misery could be corrected only if they were accorded full citizenship rights as individuals.5

  To both groups, therefore, the government offered a renewal of the national union based on equality of rights. In the aboriginal case, the policy was intended to bring an end to the distinct-group status imposed by paternalist legislation. If aboriginal peoples wished to maintain their customs and traditions, that was a private matter for them to decide. What the government would facilitate was their incorporation as individuals into the national community. In other words, the politics of assimilation remained intact.

  In the Québécois case, the intent of bilingual language rights was to break down the barriers between English-and French-speaking Canadians, to assimilate them both into a bilingual national community. Individuals could maintain their group identities as a private matter, but their shared identity would be as citizens of one nation.

  In both cases, the Trudeau approach conceived of groups as aggregations of individuals and thought of group identity as a chosen affiliation that could be — and should be — broken off if group purposes conflicted with individual ones.

  When Trudeau spoke of a just society, what he meant was a unified national space in which all Canadians would recognize each other as rights-bearers. This is one of the oldest visions of political community. It descends from the Renaissance republics of the Italian city states, and from the heritage of the French Revolution. In this model, national unity is enforced by equal rights and civic assimilation. It is an ideal that defines group differences and group demands as sources of division and that seeks to weaken the hold of groups on individuals in order to incorporate them more fully into the Newtonian space of a national state.

  Accordingly, Trudeau sought to patriate Canada’s constitution — which was a British act of Parliament — and to entrench within it a Charter of Rights and Freedoms. The charter that he intended to leave as his legacy did not grant group rights to Quebecers or aboriginal peoples. Its entire spirit was to protect individuals from the tyranny of the state and the tyranny of majorities.

  For the majority community of English-speaking Canadians, his vision has proven enduringly attractive. No privileges for any groups, but equal rights for all. No distinct societies or peoples, but one nation for all. All provinces to be treated the same. All individuals to be treated with justice. This vision was supposed to pull the country together. In reality, it came close to pulling the nation apart. Why this should be so is of enduring importance, not just to Canada but to all multinational, multi-ethnic states seeking constitutional renewal to reconcile group differences.

  The core difficulty is not with the project of civic equality itself. There is no possibility of maintaining a national community of any kind unless every individual within it, regardless of race, creed, sexual orientation, or national origin, can count on an equality of rights. Québécois and aboriginal peoples have no possibility of genuinely belonging to Canada unless they are treated with fairness and respect.

  The problem with equality of individual rights is that it is simply not enough. It fails to recognize and protect the rights of constituent nations and peoples to maintain their distinctive identities.

  The importance of this is still not apparent to a majority of Canadians. In the eyes of most, aboriginal peoples and French-speakers are minorities. The Canadian Charter of Rights and Freedoms protects the rights of minorities from encroachment. So why, most Canadians ask, are Québécois and aboriginal peoples unwilling to make do with minority-rights protections? The answer is that these groups do not see themselves as minorities at all. Minority-rights protections fail to recognize that these groups are nations, not collections of individuals with similar characteristics.

  Most Canadians in the majority community, when faced with this demand for recognition, have little difficulty acknowledging the fact that Native peoples are different and that Quebecers speak a different language. These differences can be welcomed as part of the multi-ethnic, multicultural heritage of Canadians. But recognizing cultural differences is not the point. The recognition these groups seek is political. The claim they make is that unless they enjoy collective rights of self-government over language and land, they cannot securely enjoy their rights as individuals.

  Aboriginal peoples and Québécois distinguish the type of claim they are making from the types of claims that immigrants make to defend their own languages and cultures. Immigrants, so their argument goes, arrive in a country as families or individuals, and they accept, as a condition of immigration, that they should learn the language of the majority and obey the laws of the state. Under the provisions of most liberal states, immigrants are entitled to speak their own language at home, to teach their children their native tongue as a second language, to celebrate their festivals, to organize together as community groups, and to practise their religion. But these are not group rights; these are ind
ividual rights, based in entitlements to freedom of religion and assembly, and used by groups to maintain a cultural heritage of an essentially private kind. The group rights claimed by aboriginal peoples and Québécois are political, rather than cultural, and they are collective, rather than individual. They are claims to nationhood based on historical priority, on the fact that they were present at the creation of the state, and that the state’s very legitimacy depended — or ought to have depended — on their collective consent. Where this consent was never secured — as in the case of aboriginal peoples — it must be secured now.

  But this political claim — to self-government in areas essential to a group’s survival — poses enormous problems for the majority of Canadians. What’s wrong with the Charter of Rights and Freedoms? Canadians want to know. Don’t you trust it to protect your rights? Don’t you trust us? The demand for special rights appears to cast doubt on the very jurisdiction of these institutions, for neither aboriginal communities nor Quebecers necessarily accept the application of the Charter in matters directly relating to their survival as a people. They say, “What right do you have to impose your rights on us?”

  Most people in this country are deeply attached to the green-baize version of political space: one space for all; one set of rights for all. The minority nations see political space on the patchwork model: self-governing spaces for each; each nation master in its own turf. To this, the majority then asks, “What space remains in common if each nation insists on its own?”