The Rights Revolution Read online

  The majority also believes that giving some citizens special rights to protect their language or their lands grants privileges withheld from other citizens. These privileges become a grievance when their exercise excludes other Canadians. If aboriginal peoples gain exclusive rights to land, for example, this may deny other Canadians access to the land or resources in question. Canadian fishermen on both coasts resent the fact that certain waters are claimed as aboriginal fishing grounds under formal treaties signed centuries ago.6 Here two economically vulnerable groups of citizens are competing for an increasingly scarce resource on which both depend for their livelihood, but one group appears to have a privilege that tilts the balance in their favour. Likewise, in cases where Native nations have established jurisdiction over lands and proceed to levy property taxes on non-aboriginal landholders (who do not have voting rights on tribal councils), these landholders believe that a basic democratic principle — no taxation without representation — is being breached.7 Such people also believe it is unfair that they are subject to federal, provincial, and aboriginal taxes while their aboriginal neighbours are, in some cases, exempt from all but aboriginal taxation.

  Many of these disputes are now before the courts.

  In a similar vein, Quebec legislation restricts both the use of English in public signage and the free choice of immigrants to choose the language of instruction for their children. To some anglophone Quebecers, these are privileges of a majority that encroach upon the rights of a minority. Since the passage of Quebec’s Charte de la langue française, Bill 101, in 1977, there has been recurring conflict between two incompatible visions of how a political community should run, one putting primacy on individual rights, the other on collective rights.8

  Quebec’s language policies appear to violate the ideal of the state’s neutrality. Some English-speaking Canadians have had difficulty acknowledging the very idea that any government should privilege the identity of one group, one language, and one culture over any another in its policies. Certainly, Pierre Trudeau saw the Canadian state as a neutral arbiter, and he sought through bilingual legislation to ensure that it favoured neither national community.

  In fact, despite its supposed neutrality, the state has always privileged the culture of the English-speaking majority. The very need for bilingual legislation, for example, reveals that the Canadian state had at one time actually favoured English over French in the delivery of services.

  No liberal state, therefore, is actually as neutral in its relationship to groups as it purports to be. In supposedly secular and neutral liberal democracies, the designation of Sunday as a day of rest, together with the nomination of Christmas and Easter as public holidays, privileges Christian denominations over others. Its holidays and public symbols usually reflect the values and culture of the majority.9

  In responding to these criticisms, there are two ways for a liberal state to go: to reassert neutrality by ceasing to observe rituals and holidays specific to the dominant group, or to recast neutrality as the encouragement of all groups (that is, to become multicultural). Most modern liberal states have taken the second option. In the multicultural response, the state subsidizes the cultural activities of a wide number of groups and designates days of the public calendar to the celebration of the heritage of as many groups as it can. Multiculturalism is intended not to subvert neutrality, but to reassert it in a way that entrenches minority rights to culture against the risks of majoritarian tyranny. But this multiculturalist policy does not amount to an endorsement of group rights. It simply seeks to protect and enhance the capacity of as many individuals as possible to secure public recognition of their different cultures.10

  The Quebec government, on the other hand, does not purport to be neutral. It argues that its policy of favouring French is not an exercise of majority tyranny, because this particular majority happens to be a minority within the Canadian state, and an even more embattled linguistic minority within the North American continent. Accordingly, the usual strictures against majority domination do not apply. This particular majority is entitled to use state power to favour its own group, the argument goes, provided of course that it does not actively deny the rights of English-speakers.11

  In assessing the Quebec case for privileging French, there are two tests of the legitimacy of group rights. First, are they absolutely essential to the survival of the group as such? And second, are these privileges accorded in such a way that they do not violate the rights of individuals, either inside or outside the group? It may be hard for English Canadians to admit this, but Quebec’s language legislation passes both tests. First, given the fact that minority languages are like rare birds — easily rendered extinct — it’s hard to deny the contention that the collective protection of a language employed by 7 million people is essential in a continent of 300 million mostly English-speakers. Such collective protection is important for Quebecers, obviously, but it’s important for English-speakers as well, since we also benefit from a country in which linguistic diversity is cherished. Second, the francophone majority has respected the rights of minorities in Quebec. Native English-speakers can educate their children in their language at public expense; they can also receive services in their own language. It is true that non-English-speaking immigrant minorities must learn the language of the majority, but this is a standard requirement for immigrants everywhere, and they are not prohibited from using their native language in public or from seeking English-language education at the post-secondary level once they have mastered French.

  Group rights have to respect not only the individual rights of other groups — and Quebec language legislation does — but also the individual’s rights within the group. Securing this balance requires political compromise. French-speaking Quebecers do not have the right to send their children to publicly funded English-language schools. If they wish to do so, they must pay for the education themselves. Without this abridgement of the rights of francophones, and the right of immigrants who wish to educate their children in English, the very capacity of the majority to reproduce the French language would be jeopardized. Yet the sacrifice of individual rights must secure democratic ratification. And in this case it does. French- and English-speakers accept, with more or less good grace, the constraint on the expansion of English-language education. The balance between group and individual rights has secured a measure of political and social peace in Quebec, and to the degree that the minority values peace, it accepts the compromise.

  Elsewhere such compromises are more difficult to reach. Not all groups accept an obligation to respect the rights of the individuals within them. Some religious groups — ultra-Orthodox Jews, fundamentalist Muslims, and evangelical Christians, for example — have restricted the rights of women to participate fully in the rituals and decision-making processes of their faiths. These groups contend that they exist not to protect the rights of individuals but to obey the rule of God, and since God has authorized certain forms of female submission, asking these groups to respect women’s rights is to ask them to sacrifice their very identity for the sake of secular liberal principles.12

  Difficult as it is for a secular liberal like me to admit it, these religious communities have a point. So how are we to proceed? Because the state protects these groups — by providing police, social, and welfare services — it has the right to insist that the group respect the basic laws of the state. Yet the state has no right to intervene, except when the rituals involve direct physical harm to individuals. If religions ban women from parts of the ritual, it is no business of the state to enforce their participation.13 If, on the other hand, members of religious groups seek the state’s help to leave or to exercise rights in the society outside, such as seeking an education or marrying someone of their own choosing, then the state has a duty to intervene, simply to enable those individuals to exercise the same rights as other citizens. Likewise, if individuals seek entry to a group and are barred on discriminatory grounds, they should have rights of
recourse. In other words, the state should intervene to protect rights of exit and rights of entry, but not to change the character of the group. This non-interventionism is rooted in the idea that the state should be neutral when dealing with lawful ways of living.

  The rights that religious groups seek are meant to preserve their cultural autonomy, while the rights sought by national groups, such as the Québécois and aboriginal peoples, are demands for political self-government. These appear to be privileges — that is, rights not granted to other groups of Canadians. How are we to think about rights as privileges?

  Privileges are possible, within a rights system, when they are temporary, when they are designed to correct past injustices. The affirmative-action programs accorded women and disadvantaged minorities are privileges in the strict sense that not all citizens have access to them. Yet these exceptions are justified, since their purpose is not to frustrate equality but to make equality a reality for all. By analogy, a majority of Canadians can accept according rights as special privileges to aboriginal Canadians and Québécois as a temporary measure to overcome past disadvantages and correct past wrongs. Quebec language legislation could be justified on the grounds that the French language needed to make up ground and establish a secure future. But once the injustice has been corrected, should the privilege become permanent? The answer depends on the state of the French language in this case. If its survival appears beyond risk or doubt, some revision of the balance between group and individual rights should be called for. Already the legislation has been changed several times to adjust these competing claims. But whether the restriction of English is justified permanently remains a matter of contention among some English-Canadian Quebecers.

  There is more support among a majority of Canadians for compensatory affirmative action for aboriginal peoples. The injustices that were done to them are now common knowledge. The need to redress them is perfectly clear. The majority acknowledges it did wrong. It accepts that the minority has an entitlement to redress.

  But here, too, a balance has to be struck between the claim of the wronged group and the capacity of the group at fault to pay the claim. In capitalist societies, past wrongs are compensated in two currencies: the language of apology and hard cash.14 It is well known that neither currency is adequate. When a person has been scarred for life by sexual or racial abuse in an aboriginal school, what apology, what cash settlement, can repair the harm? The natural response is to say that if no currency of account will ever be adequate, the best we can do is make the compensation as generous as possible. Yet generous responses create problems of their own. All of the churches of Canada were responsible for running the aboriginal schools that enforced the federal policy of mandatory assimilation. In many of these schools, brutality and sexual assault were commonplace. Even where they were not, the policy itself was an assault on aboriginal identity, and the results were traumatic.

  The churches now acknowledge that both the policy and its execution were indecent violations of the rights of aboriginal peoples. The apologies have been made. The question now is: What compensation should be paid to bring this matter to a close? Individual aboriginal victims have launched suits against the churches, and thanks to the ingenuity of Canada’s tort lawyers, the claims for compensation, if granted, would bankrupt most of the organizations in question.15 The issue then becomes one of whether aboriginal rights to compensation for past injustices should be exercised in such a way as to drive organizations ministering to the spiritual needs of Canadians, Native peoples included, out of business. Now, there are some organizations — fascist political parties, for example — that have been rightly outlawed because they encouraged hatred, contempt, and violence towards other human beings. But the churches simply do not fall into this category — they did not preach racial hatred or contempt. Mistaken as their policies were, their missionary goals did construe aboriginal peoples as fellow human beings. On these grounds, it is hard to see that they deserve to die as institutions.

  A balance will have to be found between the rights of aboriginal peoples and the rights of religious communities. Tort proceedings in court are the worst way to reconcile these rights, for the proceedings involve hundreds, if not thousands, of individual suits, and the courts are in no position to balance the collective claims of the two groups involved. The best way to proceed would be to negotiate a three-cornered settlement between Native peoples, church groups, and the federal government. Since group rights are in conflict, they must be reconciled at the political level. The harm that was done to aboriginals was a public wrong, done by our country, through the initiative of the federal government, and if we as citizens want to live in a country that respects itself, then the only way to clear the stain is for us all, and not just the churches, to pay up.

  But aboriginal peoples and Québécois are not simply demanding temporary privileges to redress past wrongs. They are demanding permanent rights of self-government that are not enjoyed by other Canadians. The majority concedes the necessity of redress. It does not concede the necessity for permanent self-rule.

  These twin demands for self-determination have divided Canadian society for most of my adult life, and the conflict reached a crisis between 1982 and 1991.16 In 1982, the Charter of Rights and Freedoms was created to bind the country together. English Canadians rallied to this dry legal document with a degree of fervour that surprised many of its authors. Quebecers did not. They believed the rights guaranteed them in the Charter were either unnecessary (since Quebec has its own charter of rights) or illegitimate (since the province did not agree to the constitution). Quebecers of nationalist persuasion remained convinced that the Charter was intended to abridge their rights as a group. In an attempt to secure the consent of Quebec to the 1982 constitution, the federal and provincial governments agreed at Meech Lake to a deal that would have recognized the distinctiveness of Quebec society and guaranteed its rights to self-government in language and other areas essential to its cultural survival. The deal was turned down by English-Canadian voters and legislatures because it appeared to give privileges to Quebec not granted to other provinces, and because the deal appeared to neglect the demands of aboriginal groups. In 1992 at Charlottetown, a constitutional deal that sought to protect the group rights of both aboriginal peoples and Quebecers also failed to win support in a nationwide referendum. A majority of English Canadians believed that the entrenchment of group rights would balkanize the country, while a majority of Quebecers believed that the rights enshrined in the deal did not protect their essential interests.

  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.17 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.