Indigenous Difference and the Constitution of Canada

David Mardiros is a lawyer and anthropological consultant in Terrace,
British Columbia.

Over the nearly 500 years of sustained contact between Indigenous
peoples and Europeans in North America, there has been a continuous
struggle, both legal and intellectual, to try to accommodate the rights
of First Nations within a constitutional framework that continues to
make only the briefest of references to them. Patrick Macklem, a
well-known legal scholar, argues that there is much work to be done
before an accommodation can be reached between First Nations and other
Canadians and a way forward plotted through the seemingly endless cycle
of litigation that has been the hallmark of the relationship for many
years.

Although the author’s stated audience are those with a general
interest in constitutional theory, the book will appeal to everyone who
may wish to explore the thorny issues surrounding First Nations legal
entitlements. The book begins with a very useful review of concepts and
principles in constitutional law that provides a framework for the
book’s central four chapters, which focus on specific aspects of the
legal relationship between First Nations and the Canadian state. The
author’s thesis is that “Indigenous difference,” the different
cultural, social, and legal worldviews of First Nations, has
constitutional significance—that the Indigenous peoples of North
America have cultural, territorial, and governance rights that are
recognized and protected under Canadian and international law. The final
three chapters are an exposition of the consequences of recognizing the
different status Indigenous peoples have under the
constitution—essentially that the recognition of Aboriginal rights
must include the recognition of the right to the exercise of legislative
authority by First Nations.

Although the book is relatively dense reading, the implications of its
conclusions are dramatic. Macklem demonstrates that a true recognition
of Indigenous difference will involve considerable rethinking by the
larger Canadian society of the nature of justice, equality, and the
rights of individuals and groups. This is probably the most useful
feature of this book as it provides an alternative to earlier approaches
to settling Indigenous claims and sets out a radically different vision
of a truly inclusive Canadian society.