Jean Leclair, Trudeau Fellow and Professor of Constitutional Law at the Université de Montréal
In Canada as elsewhere, Indigenous peoples have long been marginalized by the law. Recently, however, judicial decisions recognizing the existence of “aboriginal rights” have given certain Indigenous groups leverage in negotiating territorial agreements.
Despite these recent successes in Canadian courts, much of Canadian law still reflects the policies of subjugation of individual and collective Indigenous existence that the country applied without batting an eyelid before the 1950s.
The most difficult stumbling block in establishing relations between Indigenous and non-Indigenous peoples – an obstacle that constitutionalizing aboriginal rights has not resolved – is the essentialization of Indigenous identity under the law. From the Indian Act requiring blood quantum for individuals to maintain their “Indian” status, to the courts restricting Indigenous peoples’ aboriginal rights to cultural practices that existed prior to contact with Europeans, the legal Indigenous identity defined by the government is still impervious to change.
Solutions to the tensions still existing between Indigenous and non-Indigenous peoples, whatever these solutions may be, will inevitably have to espouse a juridical formulation, whether in the form of treaties, legislation, constitutional amendments, or judicial decisions. It is important, therefore, to legally conceptualize Indigenous identity in terms other than biological or historical. We need to find a legal and political solution that takes Indigenous difference seriously without denying the complexity of the modern identity of the members of Canada’s Indigenous peoples.
Because our respective identities and our political world clash more and more with notions such as “authenticity,” “sovereignty,” and “rights” – concepts too often marred by monism – I will examine how a federal perspective might refresh our understanding of the relations between Indigenous and non-Indigenous peoples.
A foremost expert of federalism in Canada, Jean Leclair is a law professor at Université de Montréal and a 2013 Trudeau fellow. Join him on Thursday, June 4, at 12:15 p.m. for his Big Thinking lecture entitled “Imagining Canada in a disenchanted world” at the Congress of the Humanities and Social Sciences.