D19(b) - Indigenous Rights, Legal Storytelling and Canadian Jurisprudence
Date: Jun 4 | Time: 01:30pm to 03:00pm | Location:
Joint Session / Séance conjointe : Race, Ethnicity and Indigenous People and Politics
“An Essential Step on the Path to Reconciliation”: Examining Media Framing of Bill C-91: An Act respecting Indigenous Languages.: Brian Budd (University of Guelph)
Abstract: In 2019, the federal government’s Indigenous Languages Act received Royal Assent after successfully passing through the Canadian Senate. The Act is a direct response by the Trudeau Liberal government to the Calls to Action put forward by the TRC. The federal government framed the introduction of the legislation under Bill C-91 as a necessary step toward reconciliation. However, while the legislation purports to recognize Indigenous language rights, it has been subject to substantive criticisms from Indigenous organizations, lawyers and academics. These criticisms have centered on the absence of legal mechanisms for enforcement, the omission of firm funding commitments, and the failure of the legislation to support language revitalization through a community or nation-based approach. This paper explores how the successfully passage of Bill C-91 was framed in Canadian news coverage. The paper examines how its passage became contextualized as part of a “Doctrine of Discovery model of reconciliation” focused on the narrow promotion of Indigenous cultural rights at the expense of rights dealing with territorial sovereignty and nation-to-nation relationships (Lightfoot, 2016). Using the methods of frame and content analysis, I examine how the passage of Bill C-91 was situated by Canadian journalists within a multicultural framework of accommodation, whereby the legislation became contextualized as a positive contribution to reconciliation based on the promotion of Indigenous languages within a post-national, pluralist Canadian society. Excluded from these narratives are Indigenous critiques of the legislation or a contextualization of Indigenous languages in relation to the revitalization of Indigenous nationhood and sovereignty.
The Secession Reference: A Paradigm Shift in Minority Protection? A Comparative Study of Language Rights and Indigenous Rights Jurisprudence: Stéphanie Chouinard (Collège militaire royal / Queen's University), Elisha Corbett (Queen's University)
Abstract: In 1998, the Supreme Court of Canada rendered its Reference re Secession of Quebec judgement. Among the major constitutional advancements in this reference case was the enunciation of an unwritten constitutional principle of protection of minorities. At paras. 79 to 82, the Court subsequently outlines that the “minority language rights”, which are borne out of a historical compromise, as well as “existing aboriginal and treaty rights” entrenched in the constitution in 1982, should from then on be read in light of this constitutional principle. As many observers have noted (Cousineau 2000; Doucet 2000; Foucher 2013), the unwritten principle of minority protection has subsequently been mobilized to imprint a new pattern to the interpretation of minority language rights, enacting a jurisprudential “paradigm change” (Hall 1992) in which those rights were read in a more generous and liberal manner (Chouinard 2019).
This paper will seek to determine whether a similar pattern has emerged from Aboriginal rights jurisprudence since 1998, analyzing the language used by the Supreme Court to justify the mobilization of this constitutional principle, where appropriate. In order to achieve this, we will perform a longitudinal qualitative analysis of Section 35 case law and will compare it with the observed change in the Supreme Court discourse in minority language rights from a chronological and normative standpoint.
Reconciling the Lifeworlds of Law: Burdened Virtue in Canada: Teddy Harrison (University of Toronto)
Abstract: Lisa Tessman argues that oppressed individuals may be prevented from developing some virtues while also displaying “burdened virtues”: virtues required to resist oppression that come at a moral cost to the wellbeing of the bearer. I argue that Tessman’s insights can illuminate the task of reconciliation between Indigenous and non-Indigenous legal orders in Canada, by showing us that the conflict of laws runs deep into the conditions of human flourishing. My argument is that the Canadian legal order creates both the forms of “moral trouble” Tessman identifies for Indigenous people on the path to being good people within Indigenous legal orders. Canadian law constructs Indigenous lives in ways that make it difficult or impossible to fulfill ethical obligations and develop virtues within Indigenous legal orders. This conflict was obvious when Canada banned central Indigenous practices such as the Potlatch or Sun Dance, but remains in more subtle ways. Participating in the criminal justice system, for instance, even as a witness, can violate Anishinaabek ethical norms of non-contradiction. The cost of participating in the Canadian economy can be an inability to make time for ceremony or obligations of kinship care. Reconciliation can only be successful and stable if it begins to take into account these dynamics. This means a broader emphasis on the lifeworlds of law, rather than a narrow focus on dividing up jurisdiction and avoiding technical conflicts of laws. The conditions of Indigenous flourishing must be secured, such that Indigenous virtues are not overburdened by Canadian law.
Participants: Stéphanie Chouinard (Collège militaire royal du Canada / Queen's University)Elisha Corbett (Queen's University)Teddy Harrison (University of Toronto)Brian Budd (University of Guelph)