First Nations Doctrine

Doctrine of First Nations – Indigenous Recognition in Canada versus Australia

The Doctrine of First Nations:

An Analysis of Indigenous Political Recognition in Canada versus Australia 

Table of Contents

  1. Introduction
  2. Framework of Analysis
  3. 2.1 Methodology
  4. 2.2 Definitions  
  5. Process Tracing Analysis of Canada and Australia
  6. 3.1 Similarities between cases: Aboriginals and Aborigines
  7. 3.2 Aborigine Political Relationships in Australia
  8. 3.3 Aboriginal Political Relationship in Canada
  9. Counter-Arguments
  10. Five Counter-Arguments Rebutted
  11. Future Questions
  12. Conclusion
  13. Bibliography
  14. Appendix 1

Abstract:

The central argument of this paper is that a demographically substantial nationalist movement called the Québécois, who inhabit the French-speaking part of Canada known as Quebec, have produced a political phenomenon that is known as the Intra-Nationalist Displacement Effect. By vying for its own legal independence from Canada, Quebec has facilitated a political space for another subordinated group of largely fragmented Aboriginal communities or First Nations. This political space for First Nations has allowed their Chiefs, and Communities to accrue new political and legal rights within Canada. It is through the convergence of three factors that this has occurred. The first explanatory factor is that Aboriginals adopted the ideology of nationalism by claiming to be First Nations, however this has occurred only recently in the 1980s. The second explanatory factor is that the demographic reality of the Québécois continues to challenge the legitimacy of the Canadian state imposing increased pressure on centrist/federalist advocates. The third factor is that federal, academic and Aboriginal elite have, accordingly, converged in Canadian democracy in an effort to defy Quebec Nationalism by accommodating another cultural group within a unified Canada. To argue the above, the paper is divided into four sections: the first outlines the framework of discussion; the second section conducts a process tracing analysis of indigenous-state relations in Canada and Australia; the third section forwards the central argument; and the final section addresses counter-arguments and implications. The Australian Aborigines are as a foil to Canada, used as a comparison, to better understand the Canadian case, and the Australia case further advances the central argument that only a demographically substantial nationalist group can produce the political space for a peripheral nationalist movement. The absence of a such a group within Australia, the absence of a Dutch, French, Portuguese, or other colonial powers presence on the island of Australia likely explains the lower legal/political status of aborigines in Australian compared to the Aboriginals of Canada.

1. Introduction

In the past thirty years, the recognition of a third founding nation – known as the Aboriginal peoples – has arisen in Canada. Is scepticism justified with regard to the emergence of First Nations? In Canada, no other communities have encountered such cultural harm. Indigenous peoples in other countries have also experienced trying, complex, and often tragic histories. These antagonist relationships between colonial masters, and subordinate people are the product of an insistence on homogenized norms and values opposed to ethno-cultural heterogeneity. This conflict is an endemic conceptual problem within the nation-state, and a focal point of ethnicity and nationalism studies.

My research question is as follows: Why have Aboriginals in Canada successfully championed their political and constitutional demands using nationalist rhetoric while other indigenous peoples rarely do so? Assessing the Aboriginal case through the prism of nationalism studies, this paper will focus on three elaborated concerns: 1) Why have Aboriginals conceptualized their relationship with the state as that of hundreds of nations? 2) Given their demographic size, why have Aboriginals achieved so much in terms of legal and political recognition in Canada? 3) Having answered those concerns, what conclusions can be made about this phenomenon?

This paper will use the developments of recent Canadian politics as the primary means through which Aboriginal elites have garnered new legal and political powers unique to the Canadian context. This paper will then suggest why this occurs using the foil of the Australian case which has a divergent historical development that leaves little room for minorities to mobilize along nationalist, and cultural lines.

Having researched, assessed and hypothesized about these concerns, it is argued that a demographically substantial nationalist movement can provide political space for other groups to accrue political and legal influence within a given state. It is the adoption of the ideology of nationalism, the structural reality of Canada and the reception of competing claims to nationhood, self-government and autonomy that allow the Aboriginal peoples of Canada to gain new political and legal rights. The second part of the hypothesis is that the absence of a Quebec-like group in Australia has determined the development of that nation-states approach to Aborigines.

2. Framework of Analysis: Making My Argument

2.1 – Methodology: 

The methodological framework of this paper is informed by nationalism studies and comparative political science approaches to testing hypotheses. It relies on three methodological approaches to analyse the questions posed: a) counterfactuals, b) process tracing and c) two-case comparisons. Counterfactuals are used to support a hypothesised cause by assessing whether the presence of a given variable in one case would likely produce a different outcome in another case where that variable was absent (Fearon 1991: 169). Process tracing involves incorporating historical narratives to test a set of hypothesised causes and to then discern which one is most likely to have caused the given outcome. It involves analysing the relevant events or critical junctures which shape the subsequent interaction of political variables (Falleti 2006: 9). These two approaches are further reinforced through the use of the two-case comparison to address causal complexity which uses cases with a relatively high degree of similarity to see what differences might explain the divergent outcomes, as exemplified in the comparison between the behaviour of the Russian and Serbian nationalists during the collapse of communism (see: Vujačić 1996).

This paper combines these three methodological approaches, building on Posner’s The Political Salience of Cultural Difference which analysed why cultural differences become political within certain cases and not others despite similar nation-states (Posner 2004). Posner studied the Chewas and Tumbukas who are fairly evenly distributed across the border between Malawi and Zambia. Posner’s paper uses process tracing to track plausible hypotheses on why ethnicity matters in one and not the other country. He then systematically excluded plausible hypotheses and found a probable hypothesis he isolates. His final hypothesis is that the demographic size of the two ethno-cultural communities relative to the total populations in their respective states explains whether the political elite choose to mobilize along ethnic or political lines (see: Appendix 1). Posner uses the counterfactual to deduce that had the Chewas and Tumbukas been larger relative to the overall population of Zambia, the elite would mobilize along ethnic rather than regional lines which is what occurred in Malawi. The combination of the three methodologies Posner uses appears to have produced a compelling argument which the following paper will emulate. It goes without saying that this paper advances a probabilistic rather than deterministic argument assuming that further research is necessary.

  

2.2 – Definitions

The terminology used in this paper attempts to maintain objectivity despite the vested interests, complexity and distortion inherent to discourse on indigenous peoples in Canada and Australia. Alan Cairns argues that these discrepancies are due to jurisprudence in Canada and Australia where adversarial exaggerations are used to negate or enhance land and other legal claims (Cairns 2000: 35). In politics, the use of various terms associated with Aboriginals and Aborigines particularly the terms ‘Indian’, ‘Aborigine’, ‘Sovereignty’ and, of course, ‘Nation’ have conceptual weight, value-laden significance and normative political consequences with their varying applications.

For purposes of clarity, in Canada, individuals or communities identified as or self-identified as being either ‘Indian’ or ‘Indigenous’ will be referred to as ‘Aboriginals’[1]. In Australia, individuals or communities identified as or self-identified as being Indigenous will be referred to as the ‘Aborigines’[2]. Québécois will be used in reference to French-Canadian and Francophone, with the majority of them residing in the province of Québec.

The role of normative conceptual claims regarding the nation (people) and its relationship to the state (legal jurisdiction) should also be addressed. J.S. Mill argued their congruence was a necessary precondition for democracy since “free institutions are next to impossible in a country made up of different nationalities.”(Mill 1861: 361) Increasingly, however, the ideal of the nation-state has eroded, limiting the applicability of a single nation with a single state conception.

Rather than a nation-state conception, the dominant ethnie is a useful term as it is a “breathing ethnic communities which gave birth to, but are by no means coterminous with, the nation-state.”(Kaufmann 2004: 1) Developed in the ethno-symbolist approach, the dominant ethnie is a core ethnic group who shapes the culture, norms and values of a state under which other immigrants conform (Smith 1986: 39). The dominant ethnie is particularly appropriate in the new immigrant states of Canada, Australian, New Zealand and the United States of America. In such cases, the dominant ethnies are increasingly in decline given the adherence to “poly-ethnic principles” (Hutchinson 1994: 164). As mentioned above, the past thirty years have seen some advocates in Canada rebrand their country as a multinational federation with three dominant ethnies (ie. English, French and Aboriginal). Such a view serves as an alternate conception to the deux nations or asymmetrical view versus the equal provinces view of Canadian federalism, a controversial debate itself (see: Gagnon and Tully 2001).

This intersection between national minorities within their imposed states and nationalism as a political phenomenon is the focus of research. To guide the discussion, there are two salient but competing definitions of nationalism that will be used:

The first definition is Anthony Smith’s, which suggests that nationalism is “an ideological movement for the attainment and maintenance of self-government and independence on behalf of a group, some of whose members conceive it to constitute an actual or potential ‘nation’.” (Smith 1983: 171) Aboriginals and Aborigines exhibit most of the characteristics required to be considered nations: the symbols, cultural traditions, common ethnic descent, historical memory and political organization. Each small nation, however, has a corresponding culture. Since there are hundreds of Aboriginal communities, each being distinct, a unified Aboriginal or Aborigine nation is not possible or desired. Even if they had a unified territory, indigenous communities would have difficulty agreeing on any languages of administration. Therefore, given circumstances specific to Aboriginals and Aborigines, many academics are hesitant to define them as exhibiting the full requisites for status as a monolithic nation, or nations at all, instead arguing that they simply wish to avoid being relegated to ‘ethnic group’ status and desire some form of self-government.

The second definition is John Breuilly’s, which suggests that nationalism is “used to refer to political movements seeking or exercising state power and justifying such actions with nationalist arguments.” For Breuilly, “There exists a nation with an explicit and peculiar character. The interests and values of the nation take priority over all other interests and values. The nation must be as independent as possible. This usually requires the attainment of at least political sovereignty.” (Breuilly 1993: 2) Such a rigid definition, which restricts the scope of the political in nationalism studies (Keating 2001: 41), does not completely preclude Aboriginals and Aborigines given that some of their elite exhibit all but rarely the sovereignty characteristic. Instead, in Canada, a spectrum of Aboriginal claims from special status to “localized goals” to self-government to some vague “sovereigntist goals” have been forwarded because full secession is unlikely for a variety of reasons (Alfred 1995: 187).

In the Canadian case, the use of the European ideology of nationalism by Aboriginals is controversial. When Aboriginals adopted the term First Nations to describe themselves, they gained political and legal status. Whether calling Aboriginal communities nations makes them nations, national minorities or ethnic groups is secondary to this paper’s objectives.[3] This paper does not seek to alter available definitions. Instead, what needs to be argued is that the Smith-Breuilly definitions of nationalism can be loosely attributed to Aboriginals if the following elite-level groups recognize these nationhood claims: a) the community leaders themselves and b) the state in question. Aboriginals in Canada fulfil those requirements. The political will is available in the Canadian context for enhanced political influence for both a) internal and b) external acceptance. It is not as readily available in the Australia context where Aborigines have moderately adopted the nationalist paradigm, and gained fewer results for their distinct community because, as will be demonstrated below, it has limited symbolic power.


[1] The scope of this paper demands that the First Nations be the core focus excluding the Inuit (northern) and Métis (mixed-race).

[2] Mainland Aborigines are the core group discussed along with the Torres Strait Islanders.

[3] This paper does not wish to engage in validating or denigrating political claims to nationhood where they remain deeply contested as is the case with First Nations. But rather, to understand why and where these claims have appeal.

3. Process Tracing Analysis of Canada and Australia

3.1 – Similarities Between Cases: Aboriginals and Aborigines

 The similarities between the Aboriginals and Aborigines warrant a comparative analysis so as to determine why there is divergence in political and legal rights attained between theses two cases. Anthropological analysis aided by indigenous academics argues that both Aboriginals and Aborigines were the first peoples of two isolated continents who were predominantly hunter gatherer nomads, proto-environmental spiritualists with organized political communities (see: Gumbert 1984; Sioui 1995). Neither have an alternative homeland and unlike immigrant minorities they were involuntarily incorporated into their respective states. Accordingly, Aboriginals and Aborigines have distinct positions as the original peoples (Flanagan 2000: 74). After first contact, both endured depopulation through disease on a massive scale and occasional conflict. Many Aboriginals and all Aborigines lack treaties with the British Crown. Both are visible minorities having endured state-based paternalism, endemic racism and forced assimilation through foster families and residential schools for a majority of their respective post-contact eras.

It is important to reiterate that speaking of Canadian Aboriginals and Australian Aborigines as two monolithic groups is not accurate as there is enormous heterogeneity amongst them culturally, linguistically and spiritually[1]. Both are made up of groups or tribes with meagre populations inhabiting state dependent reserves or isolated communities. As Philip G Roeder’s Where nation-states come from would likely suggest, neither Aboriginal or Aborigine reserve lands fulfil the requirement of being institutions for state-making (see: Roeder 2007) because, unlike Australian states or Canadian provinces, they are small patches of territory scattered across these countries. In both cases, the reserve lifestyles are below average in terms of standards of living, housing, education and above average in alcoholism, unemployment, suicide and infant mortality rates (see: Indian and Northern Affairs Canada 2004; Australian Human Rights Commission 2006). Consequently, many Aboriginals and Aborigines have migrated to urban centres with varying degrees of “integration with non-Aboriginal[s]…[as well as]…commitment to their traditional values and institutions.” (Murphy 2001: 112) The dispersal of rural to urban demographics in the two cases is relatively similar as well, such that political mobilization is comparable.[2]

Most important, the demographic size of Aboriginal Canadians and the Australian Aborigine is similar compared to the total population of their respective countries. Canada’s Aboriginals[3] constitute 3.8% of just over 32 million Canadians (Canada 2006). Australian Aborigines[4] constitute 2.5% of the total population of 21.5 million Australians (Australian Bureau of Statistics 2008). In addition, the countries of Canada and Australia have many similarities. They are both federal systems based upon immigrant settlement, currently viewing the status of their indigenous peoples as a major human rights issue, have dominant ethnies of British decent and are Commonwealth countries created out of former British colonies. However, the differences between these two states are essential to explaining the divergent levels of political and legal success between these two groups.

3.2 –Aborigine Political Relationships in Australian

Advancing the central argument of this paper requires contextual understanding of the Australian and Canadian cases. The following briefly outlines critical junctures in the Australian state’s treatment of Aborigine political and legal claims that might shed light on the different experience in Canada. Conclusively, Australia has continued with a paternalistic and assimilation by neglect approach to the Aborigines who have been easily marginalized within society. Most significantly, in the last thirty years, there has been few policy shifts which is comparatively minor to the politics of recognition that have characterized the Canadian case.

The first critical juncture in determining the relationship between Aborigines and Australia is the legal and political approach taken in 1788 (Blainey 2001: 11). Terra nullius – meaning land belonging to no one – was Australia’s annexationist doctrine from founding. It dishonestly argued that Australia was “practically uninhabited…without ‘settled inhabitants’, had no ‘settled law’, had no land law or tenure, had no political authority and no sovereignty.” (Reynolds 1996: 17) Despite the obvious presence of Aborigines, the British enforced sovereignty, without negotiation, effectively nullifying any legal basis for Aborigine political mobilization.

The second significant juncture was the Aborigine activism of the 1930s. During this period, assimilation went widely uncontested as indicated by A.O. Neville’s Australia’s Coloured Minority which forwarded a plan to biologically assimilate the Aborigines (see: Neville and Elkin 1947). Passive welfare and forcible removable of children from their families occurred throughout this period (see: Read 1984). The ‘Day of Rejoicing’ for Australians on January 26th, 1938 was protested as the ‘Day of Mourning’ for Aborigines. Contrary to the special rights doctrine of Aboriginals in Canada, Aborigine leader William Cooper advocated for an “equalitarian discourse of ‘citizens rights’” as “indigenous rights were more difficult to make.” (Attwood 2003: 65)

Coinciding with and inspired by the Civil Rights movement in the United States, the anti-racism protests of the Freedom Ride through New South Wales in 1965 symbolized once again how activism was framed around protests against racism rather than for special status. According to Attwood, during this time “Aborigines across Australia came to have a much greater sense of themselves as a common national group [Australian being the nation]– Aboriginal Australians or the First Australian” (Attwood 2003: 20). The most important achievement from these efforts was a referendum calling for the incorporation of Aborigines as Australian citizens with the right to vote, on May 27th, 1967 (see: Commonwealth of Australia 1967). This referendum was the only time the Australian constitution has been amended to address Aborigine interests.

Another turning point is the Mabo v Queensland (1992) High Court of Australia decision. After several challenges to the Australian legal systems consistent rejection of Aborigine land title, Mabo effectively “demolished the concept of terra nullius in respect to property” (Reynolds 1996: 3) but reaffirmed the sovereignty of the Australian state. This watershed decision opened the door for indigenous titles claims of Australian land. The political relationship remains the same, however. There have been attempts to further Aborigine political claims through the Aboriginal and Torres Strait Islander Commission but it was shut down in 2005 due to mismanagement (see: ATSIC 2005). In addition, recent federal intervention through the Northern Territory National Emergency Response suggests that the Australia government continues to approach Aborigines paternalistically (see: Australian Human Rights Commission 2007).

The relationship between Aborigines and their state is characterized by a low level of tolerance for Aborigine special rights. Key academics in this field, Attwood and Reynolds, are both strong supporters of a cultural pluralist model befitting a diverse Australia. Reynolds has continued the normative claims for a nation status for Aborigines (Reynolds 1996: 177) but both are lone voices in the debate within Australian political culture. In contrast with Canada, the public discourse is rarely if ever forwarded on nationalistic lines. The dominant ethnie has not been seriously challenged by competing conceptions of nation. The lack of a political will for Aborigine rights recognition is relatively weak, aside from human rights advocacy, they continue to be powerless groups, fairly easily marginalized.

3.3 – Aboriginal Political Relationships in Canada

 The Aboriginals in Canada would also be easily marginalized but for the contestation of the one nation conception of Canadian identity. The Canadian state’s defining relationship from British North America throughout Confederation is usually characterized as that of the White Anglo-Saxon Protestants (dominant ethnie) and the Québécois (national minority or nation[5]). Throughout Canadian history, a series of symbolic turning points changed this pragmatic relationship between the dominant ethnie, the Québécois and the Aboriginal peoples. What becomes evident is that during the federal recharacterizations over the last thirty years, political space for Aboriginal interests emerged in the wake of tensions between the English/French relationship.

The first critical juncture in the relationship between the British, Québécois and Aboriginals was the demise of New France. On September 13th, 1759, British forces defeated the French at the Battle of the Plains of Abraham. Significantly, the Aboriginal tribes (who had created alliances with both powers) were also affected by the two legal negotiations that followed. First, the formal transfer of sovereignty, making Québec a British colony, occurred through the Treaty of Paris 1763 ending the Seven Years War. Second, the Royal Proclamation of 1763 expressed an official policy of the British Crown. This document had two primary objectives: a) establishing the Province of Québec while also b) stabilizing relations and land rights west of the Appalachians with “the several Nations or tribes of Indians.” (Ray, Miller et al. 2000: 33)

Two consequences emerged from French defeat. First, the Royal Proclamations of 1763 became symbolic, in recent years, as an “Indian Magna Carta” (McFarlane 1993: 174). This is because the proclamation condoned the vernacular of “nation-to-nation” treaty-making in future negotiations with Aboriginal peoples. It has subsequently been viewed as the basis for a primordial claim of nationhood(s), the recent emergence of nationalist discourse and an inherent right of self-government (Borrows 1997: 155; Ray, Miller et al. 2000: 33). Second, this proclamation was the blueprint for stable colonization. A subsequent analysis of treaty-making would suggest that the use of nation-to-nation negotiations was clearly disingenuous since the Crown merely sought to establish a framework for placating Aboriginals in order to take their land peacefully. The British developed this policy for peacetime settlement having expended wartime resources against New France (Ray, Miller et al. 2000: 32). The basis for claims of nationhood(s) are a by-product of the British desire to avoid further conflict in North America. Over time, the total number of signed treaties in Canada is 33, although many Aboriginal communities have yet to sign treaties (Canada 2007).

The second crucial moment was the enactment of the Indian Act of 1876 by the Parliament of the Dominion of Canada. This established “a vast administrative dictatorship which governs every detail of Aboriginal life. The entire regime was imposed without the consent of Aboriginal peoples.” (Tully 1995: 91) The Act stipulated the maintenance of ethnic status by restricting marriage with non-Aboriginals. It also banned traditional ceremonies and restricted mobility to the over 600 reserve communities which left tribes segregated into even smaller groups (Cairns 2000: 137, 142; Kymlicka 2004: 145). As mentioned before, these economically unsustainable reserves promoted cultural difference but they also marginalized the Aboriginals as ‘wards of the state’. With the assimilatory residential schools system (see: Milloy 1999)[6], Aboriginals convincingly argue that the Indian Act contravened the “spirit of the treaties” (Tully 1995: 202). When the federal government proposal in the 1969 White Paper recommended an equal citizens rights approach, however, that would end the reserve system, Aboriginal elites opposed it on the grounds that their cultural survival and special status would be at stake without a territorialised base (Cairns 2000: 53). Although altered through successful political and legal rights claims, the Indian Act continues to influence the relationship between the Canadian state and Aboriginals as it is still largely in place.

Differing from the Aboriginal history, the Canadian state began facing the challenge from Québécois nationalism. Beginning with the Lesage Libéral government of 1960, autonomy was gradually transferred to the Québécois majority in what is known as the Quiet Revolution. In contrast to the Aboriginal reserves, the federal system provided an ‘institutional advantage’ or rather a springboard to state secessionism based on the division of powers between Canada and the provinces (see: Roeder 2007). With such institutional advantage, Québécois nationalism became a major threat to the sovereignty and legitimacy of Canada.

From this existential threat, a series of constitutional amendments were required given the emergence of the Québec-triggered unity crisis. As the following will demonstrate, the consequences of the demands made by the Québécois destabilized the Canadian constitutional order creating a rippling effect in unexpected quarters, particularly for Aboriginals.

The 1976 election of the Parti Québécois in Québec created a mandate for the 1980 referendum on sovereignty-association with the Canadian state. In the wake of the defeated referendum, concessions to nationalist demands were promised by federal decision-makers. The Constitution Act of 1982 was the product of the Canadian state’s patriation of the constitution from Britain and renegotiation of political relations between citizens and state; in particular, English Canadian provinces and the increasingly autonomous province of Québec (Cairns 2000: 156). Not coincidentally, Aboriginals entered with their own demands as “constitutional outsiders” (Ladner 2003: 167) and left with watershed rights guarantees. Namely, the constitution legally entrenched a new category of “Aboriginal peoples”[7], affirmation of the Aboriginal treaties as uninfringeable by Canadian law in Section 25 of the Charter of Rights and Freedoms (Asch 1984: 2) as well as creating Section 35 and amending the Indian Act in Section 91 (24) of the BNA Act of 1867(Murphy 2001: 118)[8]. However, neither Québec nor Aboriginal politicians succeeded in negotiating the inclusion of the words ‘nation’ or ‘sovereignty’ into the constitution. It nonetheless “granted [Aboriginals] a special constitutional identity” (Cairns and Williams 1991: 9).

Following from this the Meech Lake Accord (1987 – 1990) was born out of the unstable political compromise entrenched in the Constitution Act of 1982 particularly given the symbolic absence of Québec’s signature. Significantly for this paper, the new deal for Québec special status was not ratified when an Aboriginal member of the Manitoban legislature, Elijah Harper, filibustered the passing of the passing of the resolution approving it at the last possible moment in 1990. Harper’s justification was that Aboriginals were not given the appropriate political powers as a matter of right. Second, he acted pursuant to the Aboriginal goal of inclusion in any further reorganization of the constitutional powers in Canada which Meech Lake had not achieved (McNeil 1996: 71).

The Charlottetown Accord was the subsequent effort to rectify the increased emergence of the ethnic dynamics of Canada. With wider public consultation, it sought to accommodate Québec demands while also giving Aboriginals Senate representation, influence in Supreme Court appointments and the mandate to “safe guard and develop [Aboriginal] languages, cultures, economies, identities, institutions and tradition…and ensure the integrity of their societies” (Canada 1992: S. 2) as well as other political gains. These unprecedented powers were never realized, however, as the Charlottetown Accord was rejected in a country-wide referendum in 1992. The repeated failures of two Accords to accommodate Québec led to a massive surge in Québec nationalism which culminated in the 1995 Québec Referendum (Guibernau 1999: 41). The referendum was very close as the vote “came within 60,000 votes…of beginning the dissolution [of Canada]” (Ignatieff 2000: 116). The Canadian state has since avoided further constitutional adjustments but as will be made apparent, Aboriginals have gained new symbolic victories in the wake of Canada’s existential angst. Along with political gains, there was a series of Supreme Court rulings which predominantly favoured Aboriginal legal claims. Both legal and political recognition allow the Aboriginal elite to have more influence in the Canadian state.

Based on the above history, the relationship between Aboriginals and their state is fairly similar to Australian Aborigines until the Quiet Revolution and the subsequent constitutional crisis. Nationalism became part of the public discourse producing the political will for the politics of recognition. Gradually, there developed competing conceptions of federalism and Canadian identity to combat the secessionist arguments of Québec nationalism. For Aboriginals, it was merely a matter of maximizing the advantages of the political space created. Australian Aborigines however through no fault of their own, are unable to posit their political rights in the same manner, as this paper argues, this is because there is not demographically substantial nationalist group in Australia.


[1] This diversity within the groups themselves is the primary reasoning behind the denial of nation status by some academics.

[2] Canada and Australia are roughly equally dense with indigenous communities dispersed fairly similarly.

[3] Includes Métis and Inuit.

[4] Includes Torres Strait Islanders.

[5] Aboriginals and Québécois are sometimes referred to as ‘national minorities’ in the sense that they had a presence before British conquest.

[6] Similar to the history of the Stolen Generations of Australia.

[7] Formerly referred to as Indians.

[8] These constitutional achievements are second only to the Māori of New Zealand.

4. Central Argument

The central argument of this paper is advanced by explaining the logic of indigenous participation in nationalist discourse. Then, elaborating on the three major factors that converge in Canada. The absence of these factors in Australia most likely explains the divergent outcomes.

4.1 – Playing The Game for  Political and Legal Rights

In order to gain political and legal concessions, Aboriginals, Aborigine and other indigenous peoples have had to forward their claims in the manner required by their states. Playing their game is often in conflict with the diversity of indigenous peoples traditions, languages, norms and values, which continue to clash with those of the dominant ethnie. James Tully argues that there are three schools of thought: liberalism, nationalism and communitarianism which form the hegemonic political and legal order under which all modern states are organized (Tully 1995: 36). These three paradigms are the product of the historical development in Europe which inherently assumes their superiority over other less ‘civilized’ peoples. In both British North America and Australia, conceptual clashes between the so-called civilized and savage peoples constituted a technological and political imbalance which led to subordination of indigenous peoples upon first contact.

For liberal theorists such as John Locke – a beneficiary of American annexation – the colonization of Aboriginals, irreversible ethnocide and treaty-based land acquisition was justifiable given the principle of property ownership. Such conception of ownership was absent from Aboriginal and Aborigine societies (Locke 1966: 17) The lack of property ownership or land possession was the “potent argument used to deny Aborigin[e] sovereignty…” (Reynolds 1996: 46) Locke and the imperial interests – who ignored the complexities of the spiritual and political indigenous societies – argued that “since there was no government to deal with and no rights in their hunting and gathering territories, they violate the law of nature when they try to stop European government.” (Tully 1995: 73) Once the indigenous knowledge and training was exhausted, their hunting and gathering lifestyle was deemed unsustainable compared to a competitive property rights system of agricultural and the industrial development later imported from European society.

Their pre-contact societies are a cultural memory of forgotten peoples who have since reinvented and revised their traditions in the modern context reminiscent of arguments in The Invention of Traditions (see: Hobsbawm and Ranger 1983). Inseparably tied to their environment, the decline in the supply of wild game changed cultural traditions irreversibly, particularly in North America. In a post-contact era, Aboriginals had no exit option from the newly formed states because the land – along with elements of their culture defined by the land – was ceded to colonial settlers. This gravely weakens the Aboriginals’ capacity to achieve mutual recognition, respect and dignity from the imposed political states within which they were and remained subjects.

The political dilemma for Aboriginal and Aborigine political elite then becomes the choice between unsettling options. Having no viable alternative against which to place their claims outside of the hegemonic order, three available options emerge. As Kymlicka asserts they can “(a)…accept integration into the majority culture…; (b)…seek rights and powers of self-government needed to maintain their own societal culture…; (c)…they can accept permanent marginalization.” (Kymlicka 2000: 28) Since the conception of a respectable and dignified ethno-cultural past requires a belief in the essential value of reclaiming their land and culture, they must necessarily shift from option (a) assimilation and option (c) marginalization to option (b) self-government.

Operating in the nation-state system requires playing by the rules of the state. It then becomes a question of how claims might be forwarded to maximize the successful achievement of Aboriginal political and legal recognition associated with option (b) self-government. The particularisms of their respective states (i.e. Canada and Australia) determines the manner in which Aboriginals and Aborigines advance their claims for special status, autonomy and/or self-government.

4.2 – The Causal Mechanism for Divergent Relationships

There are three major factors converging to produce the political and legal space that gives Aboriginal Canadians advantages over Australian Aborigines. First, there is the ideology of nationalism itself, which has particular traction in the Canadian state. Second, the structural realities of the Canadian state provide the political space for such conceptual appeals. Third, the Aboriginal, federal and academic elite in Canada converge politically to justify the internal and external recognition and rights that Aboriginal Canadians as First Nations demand. These three major factors are not present in the Australian case and, therefore, the Aborigines are significantly more marginalized and without much political recognition.

(1) The Utility of Nationalism

 

Legal Jurisprudence Approach

The moderate use of the nationalist discourse among Australian Aborigines rests in the strength of a uniform Australian nationalism. This Australian nationalism was “based on the dispossession of the Aborigines, a sub-imperialism in the Pacific and a strong masculinism” (Trainor 1994: 5). Emerging in the 1890s, a simplified definition of Australian nationalism is masculine mateship, individualism and the mantra of “a nation for a continent” (McLachlan 1989: 3). According to Rowse, “assimilation is a simple concept with its postulate of a ‘single set of Australian norms,’ contrasting with the more complex concept of ‘self-determination’ [which] opens up the troubling possibility of normative plurality within the one nation.” (Rowse 1998: 213) Australia’s one nation conception of its political culture is not only dominant, but is not contested by real alternatives.[1]

The consequence is that the Aborigine political elites do not gain much with the rhetoric of nationalism because, outside of the Australian nationalism, such a discourse has no traction in the Australian context. Therefore, it cannot achieve the same acceptance, meaning and political significance as in the Canadian context. Most of the literature suggests that the people, and by extension the Australian state, remain largely politically conflicted by Aborigine rights claims. The dominant ethnie is sceptical of a political philosophy that contravenes the idealized one-nation conception of the Australian state. In addition, there is no demographically substantial nationalist movement to challenge the dominant ethnie’s hegemonic domestic authority. Other than occasional protests, it is not clear within the fragmented Aborigine communities what steps should be taken politically to rectify the systemic inequality. Instead, successful Aborigine activism continues to be channelled solely through the legal claims of racial lines with First Australians land rights (Gumbert 1984). For the internal communities and the external state, such an approach works because “property is much more tangible than sovereignty as a matter of concern…the proposal for autonomy or for Aboriginal sovereignty meet with little understanding and less approval.” (Reynolds 1996: 147) This jurisprudence approach regarding land rights has been the preoccupation of Aborigine elites as exemplified in the watershed and controversial Mabo v Queensland (1992) decision.

The Doctrine of First Nations

In contrast to Australia, both political and legal recognition allow Aboriginal elite to accrue more influence in Canada. During the last thirty years, legal cases have predominantly favoured Aboriginal legal claims. The Aboriginal political elite have also successfully gained increasing attention for their political claims. Such gains are achieved in part by adopting the rhetoric of nationalism to a) gain influence as a political movement and b) differentiate themselves from voluntary immigrant minorities (Flanagan 2000: 74). According to Tully, when “[A]boriginal peoples strive for recognition, they are constrained to present their demands in the normative vocabulary available to them. That is, they seek recognition as ‘peoples’ and ‘nations’, with sovereignty or a ‘right of self-determination’, even though these terms may distort or misdescribe the claim they would wish to make if it were expressed in their own languages (Tully 1995: 39). Such an approach has worked precisely because of the Canadian context, as this paper argues below.

Since the standardization of treaty-making in 1763 employed the vernacular of nation-to-nation negotiations and even though some Aboriginal are not under treaties, a primordial argument has been almost unanimously embraced for the revival of the nation-to-nation language beginning in the 1970s. Curiously, the term ‘nation’ was not used to describe Aboriginal communities for most of the 20th century. Importantly, the Indian Act of 1876 did not refer to nation but rather used the term ‘band’ as the organizing vernacular of Aboriginal communities (Flanagan 2000: 74).

This began to change when the ideology of nationalism emerged in the Dene Declaration of 1975 which stated “We the Dene….insist on the right to be regarded by ourselves and the world as a nation” arguing that the Dene were not governed by Canada and that they would seek “independence and self-determination within the country of Canada” (Dene Declaration 1975). How such an objective would be achieved is not clear. What is evident, however, is that this shift to self-declared nationhood had a rippling effect in Aboriginal communities within Canada.

The term First Nations was adopted when the National Indian Brotherhood  organized the “First Nations’ Constitutional Conference.”  At this gathering of Canada’s 570 Chiefs, a resolution was passed to reorganize into a single pan-Aboriginal organization called the Assembly of First Nations on April 21st, 1982. Consequently, many bands changed the title of their reserve communities over the following years to continue this new political declaration. Today of the more than 600 Aboriginal reserves in Canada, 450 have incorporated the words ‘First’ and/or ‘Nation’ into their title. In the wake of this shift, the federal government did not dissuade the use of this terminology but rather tacitly accepted nationalism discourse in Aboriginal communities. As a consequence, avoiding the use of the words First Nations is not possible when they are embedded in the title of reserve communities, for example the Poundmaker Indian Reserve became the Poundmaker First Nation. In the same way that Québec renamed its legislature the Assemblée nationale du Québec, the Aboriginals were purposefully challenging the one nation pan-Canadian conception favoured by the English-speaking dominant ethnie. The Penner Report of 1983, a government document, was the first to use the term First Nations highlighting that “it is not intended to carry separatist connotations.” (Ponting 1986: 340 – 1 n. I.) Gradually, the Canadian state, along with academic elites, positioned Aboriginals as a third founding nation rather than minority while continuing to use Indian and Aboriginal as administrative terms. Curiously, given the eminent threat to Canada posed, symbolically recognizing the Québécois as a nation occurred only recently (Parliament of Canada 2006) as “neither the constitution, nor the federal legislation, nor the statement of federal politicians recognize[d] the nationhood of Québec” before 2006 (Flanagan 2000: 87).

The incentive, meaning and motivation for Aboriginal leadership to utilize nationalist discourse is commensurably linked with Québécois political gains beginning in the 1960s. According to Flanagan and Cairns, the correlation between Québec and Aboriginal nationalism is evident; “given the prominence of ‘nation’ in Québec sovereigntist discourse, the pressure on Aboriginal elites to employ the language of nationalism was irresistible.” (Cairns 2000: 171) When federalist decision-makers optioned to “restart the constitutional process, aboriginal leaders demanded to be included as one of the ‘founding peoples’ or ‘founding nations,’ on equal terms with the English and French.” (Flanagan 2000: 76) Admittedly among Aboriginal leaders, including the first pan-Aboriginal politicians such as George Manuel, “the goal was recognition of the Indian Nations as equal partners in the country with the French and English nations, and that the Indian people should have at least the same powers over their land, resources, health systems and education as the non-Indian people…” (McFarlane 1993: 175) The evidence suggests that there was a complex relationship between the Aboriginal objectives and the broad political context of the Canadian state. The power dynamics informed their strategy for political recognition and rights attainment. Aboriginals have thrust their interests into the symbiotic relationship between English and French Canada’s struggle over identity. There is little doubt that the redefining from bands and tribes to nations has had a symbolically significant effect, as this paper argues. This is absent in Australia.

(2) The Structural Reality of Two Commonwealth Countries

Australian Demographics

The reason that the Australian conception of nationhood is relatively homogenous, and assimilatory is because it has not been challenged by a demographically substantial nationalist movement like that of the Québécois. Demographically, Australian Aborigines constitute only 2.5% of the total population of Australians (Australian Bureau of Statistics 2008). This is a structural reality that makes Australia’s political culture far less conducive to special status for Aborigines. As a counterfactual, then, the absence of a Québec equivalent in Australia has meant that Aborigines cannot gain much traction if they claim to be a founding nation of Australia. They have very limited Australia state recognition of their rights except in fairly limited legal victories of late. In other words, they are relegated to choosing between Kymlicka’s option a) assimilation or c) marginalization with heavily limited agency over their cultural future. The lack of demographically substantial nationalist movement is the core difference between the context under which Canadian Aboriginals and Australian Aborigines make their political and legal claims.

Canadian Demographics

Aboriginals in Canada made impressive political gains in the last thirty years in part because of the structural reality within the Canadian state. Put bluntly, size matters but not in the way that nationalism studies typically imply. Certainly the population size of the Québécois influenced the creation of a federal Canada in 1867. The exact figures of Aboriginal Canadian and Australia Aborigine shows that they are rather minute groups. The demographic size of the Québécois, however, (excluding non-Québécois French Canadians) easily forms a demographically substantial base for a nationalist movement and a state. Québécois nationalist objectives also conform to John Breuilly’s political definition of nationalism. Although their population has been in decline relative to the rest of Canada both before and after Confederation, the Québécois currently constitute 19% of total population of Canada (Canada 2006). Their additional influence occurs because a) the Québécois fact in the historical narrative of the Canadian state, b) the Québécois’ regaining influence in the province of Québec[2] at almost 8 million (Statistics Canada 2009) and c) the viability of that province in forming a state following the institutional advantage of federalism, as argued by Roeder (Roeder 2007).

Conversely, Canada’s Aboriginal peoples (First Nations)[3] actually only constitute 2.23% of the total population of Canada (Canada 2006). Aboriginals are further institutionally disadvantaged given their territorially fragmented organization and a lack a province. If demography were the sole salient factor, however, the Aboriginal Canadians, including the Métis and Inuit, totalling only 1.1 million people, would have less political influence than the over 1.3 million Chinese Canadians (Canada 2006). Demographics are obviously not the whole explanation.

Returning to the first research question: why have Aboriginals in Canada successfully championed their political and constitutional demands using nationalist rhetoric while other indigenous people rarely do so? The answer is that a viable nationalist movement has provided the political space for a marginalized group to accrue political influence. In other words, it is not the demographic size of Aboriginals themselves – whom many argue do not form nations at all – that produces their political and legal gains in the last thirty years. Rather, it is the strategic interaction of a mobilized threat against the legitimacy of its state that make the First Nations a possibility ie. Québec nationalism tensions with the Canadian state. Given the structural realities of Canada, the enhanced political significance of Aboriginals is most likely correlated with their ideological shift towards nationalism and with the demographic challenge that Québec nationalism has caused the Canadian state. This paper argues that this interaction matters particularly for the otherwise easily marginalized but original peoples of Canada.

(3) Coordination of Federal, Academic and Aboriginal Political Elite

Converging Interests

Amidst the paralysis of Canada’s constitutional crisis, a symbolic convergence of federal, academic and Aboriginal elite occurred in the form of The Royal Commission on Aboriginal Peoples (RCAP) from 1991 – 1996. RCAP sought to assess how a renegotiated, revised and rebranded relationship between Aboriginals and the Canadian state should proceed into the 21st century. This commission emphasized the continuity of Aboriginal claims; supported all the benefits of the failed Charlottetown Accord; and recognized Aboriginals as primordial nations with pre-exiting sovereignty. RCAP’s major recommendation was to support Aboriginal peoples “inherent right to self-government” by creating a third order of government with an Aboriginal Parliament alongside the first (federal) and second (provincial) orders of government (Royal Commission on Aboriginal Peoples 1996 vol 1: 36).[4]

The primary agents for taking advantage of this interest convergence are the Aboriginal political elite. They engaged in the nationalist appeals to cultural traditions, a mystic past, and to the notion of a historical memory defined by extensive human suffering. The secondary facilitator are the federal and academic elites who saw the relationship as nation-to-nation between the two solitudes of Canada and its Aboriginal peoples. The objectives of Aboriginal political and legal claims should be addressed given that this paper argues that the promise of inherent right to self-government is a coordinated, symbolic demonstration of Canada’s accommodative capacities. These elite-level decisions-makers agreed, perhaps without realizing it explicitly, that there were mutual gains in advancing Aboriginal political claims regardless of whether self-government is a positive step for Aboriginals and whether alternatives are more suitable (see: Indian Chiefs of Alberta 1970). Most academics are at the very least skeptical of the viability of self-government, especially given the US example (see below), regardless of their position on support for Aboriginal cultural survival (see: Cairns 2000; Flanagan 2000; Prince and Abele 2003; Dacks 2004). But as Kymlicka argues, “Whether [self-government] is the right strategy for Indians is, of course, for them to decide” (Kymlicka 2004: 145).

Importantly, the Royal Commission on Aboriginal Peoples was not written in a vacuum but is indelibly linked to Canada’s crisis of legitimacy. This is demonstrated by the RCAP recommendations, some of which, are heavily influenced by interactions with Québécois without explicitly mentioning that was the case. For example, rejecting guaranteed representation in for Aboriginals in provincial legislatures or federal parliament was justified by the perceived second tearing of Māori representatives in New Zealand (Royal Commission on Aboriginal Peoples 1996: vol. 2 s. 4.4). This justification is really obfuscation, however, given that any representation guarantees would require an amendment of the constitution which a Québec government would surely veto.

Ultimately, the convergence of RCAP is only symbolic of the theoretical support for improving the lives of Aboriginal Canadians. Of the 444 recommendations made in the voluminous 4,000-paged RCAP, the federal government response was stall implementation indeterminately (Canada 1997). In particularly, federal funding for self-government has not been implemented. This is likely because a) the political will of the majoritarian democracy is conflicted, b) within the communities, self-government may not be the desired outcome for those outside of the Aboriginal elite and c) “…attempts to incorporate Indian and Inuit governments under the rubric of the territorial/symmetrical model of federalism are clearly unworkable.” (Kymlicka 2004: 146) Despite the failure of implementation, the symbolic gesture is a powerful one.

By-products of Challenged Legitimacy

There was no single federalist and academic actor who orchestrated a grand shift in policy favouring Aboriginal political and legal rights. Rather there was a gradual recognition of the changing dynamic within the Canadian state, requiring multiple responses to the threat of Québec forming a nation-state. None of these responses are universally endorsed and some conflict with each other. Namely, instituting bilingualism, deux nations asymmetrical federalism, a multicultural policy, multinational federalism and creating new hurdles for secession such as the Clarity Act of 2000.[5] These responses are all by-products of the unique context of Canada. For examples, it is difficult to imagine the communitarian theory of group rights, as espoused by Canadian political theorist Charles Taylor, being developed in Australia because Taylor’s ideas are deeply influenced by the structural demographic realities of his country. The adoption of multiculturalism is also contingent on the Canadian context as some argue it “superimpose[s] a one Canada perspective over the prevailing deux nations view.” (Fleras and Elliott 2002: 54) Yet another by-product is the revisionism of a third founding nation in the last thirty years, as this paper argues.

The idea of multinationalism relates directly to First Nations in Canada since without them, Canada has been historically termed bi-national. The creation of a multinational democratic discourse among Canadian academics (Gagnon and Tully 2001: 3) is a constructive model for avoiding the contentious deux nations of English and French nationalism. For such theorists, Canada is a civic dialogic conversation that is constantly evolving between diverse peoples (see: Tully 1995) when in practice this is an ingenious way of keeping the discussion within a single state. Together, federalist, academic and Aboriginal elite implicitly challenge the Québécois with the question: ‘What about the Aboriginal nations, the third founding peoples?’ To further is point, it is no coincidence that Aboriginals argue that inherent right to self-determination should be equal to the Québécois and therefore those communities that reside in Québec should be allowed to secede from any newly formed sovereign Québec, as was briefly discussed in Reference re Secession of Québec(1998). Supporting First Nations in claiming the available political space is motivated implicitly as a tactic for defusing Québécois nationalism and undermining the possible secession of Québec.

Given this argument, the pragmatic decision to promise Aboriginal elites more political power and autonomy is not due to Aboriginal activism alone. Nor is it because of the moral need for redress given the tragic, prejudicial and undignified suffering endured in the post-contact era. Rather, increased Aboriginal self-government is an effort to demonstrate the accommodation of diversity, protecting cultural, linguistic and spiritual groups that constitute First Nations within a legitimized framework of Canadian federalism.


[1] The endorsement of a Canadian-inspired multicultural policy was largely symbolic and since the Howard government of 1996, the policy has been substantially curbed.

[2] Note that the Province of Québec is inhabited by Aboriginal, Anglophone and Allophones as well as the dominant Québécois community.

[3] Not including those who are (mixed-race) Métis or (northern) Inuit.

[4] This is recommended in Charlottetown Accord as well.

[5] Justified by the Supreme Court of Canada decision in Reference re Secession of Quebec 1998.

5. Counter-Arguments and Future Questions

Five Counter-Arguments Refuted

At this point, it is appropriate to address plausible counter-arguments to the causal mechanism argued, given the process tracing, two-case comparison and counterfactual methodology of this paper. The following is by no means an exhaustive list of counter-arguments, but it addresses the more salient questions that may arise from the causal mechanism that this paper has advanced.

The first counter-argument is that differences in the timing of settlement may account for the divergence of outcomes. Australian colonization began in 1800s while North America colonization began in the 1600s. The interaction effects of Australian colonialists, having observed the North American case, may explain why the Australian relationship developed as it did. Such an argument can be refuted because British Crown had oversight in Australia: the Royal Proclamation of 1763,around the time of Australian colonization, sought to treat Aboriginals as nations tantamount to France suggesting that the overarching trend in British colonization was for alliance formation. In addition, Australia was uncontested by other powers, requiring no strategic alliances with the indigenous peoples.

The second counter-argument for the major divergence between Canada and Australia is the lack of treaty negotiations in Australia except for Batman’s Treaty in 1834 in Melbourne.[1] As explained above, terra nullius negated treaty making in Australia. The Royal Proclamation of 1763 and the 1840 Treaty of Waitangi in New Zealand were stepping-stones to political recognition. Despite these legal documents, this paper maintains that the treaties are the product of conflict with demographically substantial nationalisms, ie the French colony of New France and the Māori (see below). Similarly, treaties were not uniformly signed in Canada. Most British Columbian Aboriginal communities lack treaty and yet have been achieving unprecedented advances for example in Delgamuuk v. British Columbia (1997). Treaties have become a mechanism of legal claims but they are the product of the strategic negotiations of the Crown to acquire land without conflict. In other words, the difference between treaty and non-treaty peoples is not as salient as the structural realities of their respective countries.

The third counter-argument is that this paper underemphasizes the agency of relevant political actors. However, this paper incorporated the agency of Aboriginal leaders in using nationalist discourse to gain influence. Their mobilisation interacts with factors beyond their control. Conversely, the Aborigines have been politically organized to a comparable degree as well; have gained support from fellow Australians, held demonstrations and yet they have not achieved as much (see: Attwood 2003).

The fourth counter-argument is that global forces in the international community might explain the gains in Canada. But that would not explain why the Aborigines who reside within a nation-state recognized by the United Nations have not made the same gains. International factors appear to be rather subordinate to internal domestic factors as the central argument of this paper suggests.

The final counter-argument that this paper will address is selection bias. This paper does not directly deal with Māori and Native American cases:

First, the Māori of New Zealand organised monolithically, resisted assimilation and were more militaristic compared to Aborigine or Aboriginals (Fleras and Elliott 1992: 208). The negotiated Waitangi Treaty of 1840, their representation in Parliament, and other rights has allowed the Māori to achieve the most political and legal recognition of any other indigenous peoples in the former British dominions. However, this neatly strengthens this papers central argument that a demographically substantial people itself forces political recognition and can produce political space for others as well. Today, Māori constitute 14.6% of the total population of New Zealand (New Zealand Statistics 2006).

Second, Native Americans are the most similar to First Nations. They were, paradoxically, granted self-government on reservations in the Indian Self-Determination and Educational Assistance Act in 1975 (Henson, Cornwall et al. 2008: 5). In addition, some Native American refer to themselves as nations which reflects the “domestically dependent nations” reference in Cherokee Nation v. Georgia (1831). Despite the potential for nationalist discourse internally, however, the United States government has marginalized Native Americans effectively. They are demographically the least substantial indigenous group surveyed constituting only 1.37% of the total population of the United States (U.S. Census Bureau 2001). Unlike the First Nations of Canada, only 38 of the 562 Native American self-governed reservations use the word ‘nation’ in their title (Bureau of Indian Affairs 2009). The most striking difference for Native American political and legal rights is that so-called self-government has merely allowed their federal government to marginalize reserve communities which are rarely economically sustainable (Henson, Cornwall et al. 2008: 7) thus not resolving the systemic problems faced by Native Americans today. In addition, their relationship with the United States, throughout history is characterized by the most successful cultural and ethnic assimilation of indigenous peoples resulting in 8 out of 10 Native Americans being of mixed race (see: Gould May, 2001). It is precisely because there is no demographically substantial nationalist movement within the United States that Native Americans have almost no political influence within that country.

Future Questions

The pan-ultimate goal of Aboriginal self-government is problematic as no successful model exists. Most importantly, there is increasing migration of Aboriginals from the territorial base of self-government from the reserves into urban centres. The future question then should be: Is the cultural survival of non-territorialized small groups possible? Some thinkers have encountered this question before and may offer some preliminary thoughts. In particular are the Austrian socialists Karl Renner and Otto Bauer. Renner believed cultural survival could be achieved by reorganizing the Austro-Hungarian Empire along the personality principle where individuals would be empowered to choose which national community to opt into irrespective of where they resided within a state (Zimmer 2003: 115). Building on this, Otto Bauer recognized that “ignoring the legitimate quest for recognition and cultural autonomy of smaller nationalities in the name of internationalism…would only serve to strengthen political national among these groups” (see: Forman 1998; Zimmer 2003: 116). Therefore, Otto Bauer advocates, in Die Sozialdemokratie und die Nationalitätenfrage, for a federation of nations where no ethnie can explicitly or implicitly dominate state institutions (see: Balakrishnan 1996: 70 – 75). Theoretically, a state could remain cohesive while allowing institutions for cultural protection in a non-territorialized manner. However, this personality principle was not implemented in their country or elsewhere. Perhaps the application of such a model would be most suitable in giving Aboriginals and Aborigines respect and dignity.

6. Conclusion

The central argument of this paper was that some Commonwealth countries are more likely to accept political and legal claims than others because of nationalisms within. In Canada, the enhanced position of Aboriginals – as a third founding nation – likely occurred because of the convergence of First Nations discourse, the political space created by the Québécois and the mutual interests of federal, academic and Aboriginal elite in demonstrating the accommodation of cultural diversity within a unified Canada. Since these factors are largely absent in Australia, their Aborigines have not achieved the same political and constitutional demands as their Canadian equivalent.

This paper risks being overly deterministic about causality within states and between nationalist movements. It was through process tracing, counter-factuals and the Australian foil, that a hypothesized causal mechanism was developed. Conclusions, however, should always be probabilistic ones that require retesting and further research. The emphasis on political space creation begs the question that if Québec was to secede from Canada would the political space remain open for Aboriginals? In other words, can there be non-interest-based accommodation of cultural diversity? If so, there is hope in Australia and elsewhere.

Given the particularism of nationalism studies, one should be weary of grandiose theorizing. The transferability of this causal mechanism might be limited indeed but perhaps something could be said about so-called multinational state in the past and present. Certainly, the Austro-Hungarian Empire and also the devolution of power in the United Kingdom in which Scottish nationalism may have helped create the political space to recognize Welsh nationalist goals are worthy of testing along similar lines. At any rate, further research is necessary.

Bibliography

(1831). Cherokee Nation v. Georgia, U.S. Supreme Court. 30: 95 Pet. 1 at 16 – 17.

(1992). Mabo v. Queensland, HCA. 23: 175 CLR 1.

(1997). Delgamuuk v. British Columbia, SCR. 3: 1010.

(1998). Reference re Secession of Quebec, SCR. 2: 217.

Alfred, G. (1995). Heeding the Voices of Our Ancestors: Kahanwake Mohawk Politics and the Rise of Native Nationalism. Toronto, Oxford University Press.

Asch, M. (1984). Home and native land : aboriginal rights and the Canadian constitution. Toronto ; London, Methuen.

ATSIC. (2005).    Retrieved August 11st, 2009, fromhttp://pandora.nla.gov.au/pan/41033/20060106-0000/ATSIC/default.html.

Attwood, B. (2003). Rights for Aborigines, Crows Nest, N.S.W. : Allen & Unwin

Australian Bureau of Statistics. (2008). “Year Book Australia, 2008.”   Retrieved August 11th, 2009, fromhttp://www.abs.gov.au/AUSSTATS/abs@.nsf/bb8db737e2af84b8ca2571780015701e/68AE74ED632E17A6CA2573D200110075?opendocument.

Australian Human Rights Commission. (2006). “A statistical overview of Aboriginal and Torres Strait Islander peoples in Australia.”   Retrieved August 11th, 2009, from http://www.hreoc.gov.au/Social_Justice/statistics/index.html.

Australian Human Rights Commission. (2007). “Submission on the Northern Territory National Emergency Response Legislation.” fromhttp://www.hreoc.gov.au/legal/submissions/2007/NTNER_Measures20070810.html.

Balakrishnan, G. (1996). Mapping the nation. London, Verso in association with New Left Review.

Blainey, G. (2001). The tyranny of distance : how distance shaped Australia’s history. Sydney, Pan Macmillan Australia.

Borrows, J. (1997). Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government. Aboriginal and Treat Rights in Canada: Essays on Law, Equity, and Respect for Difference. M. Asch. Vancouver, University of British Columbia Press155 – 172.

Breuilly, J. (1993). Nationalism and the state. Manchester, Manchester University Press.

Bureau of Indian Affairs. (2009). “Tribal Directory.”   Retrieved August 11th, 2009, from http://www.doi.gov/bia/ia_tribal_directory.html.

Cairns, A. (2000). Citizens plus : aboriginal peoples and the Canadian state. Vancouver, UBC Press.

Cairns, A. and D. E. Williams (1991). Disruptions : constitutional struggles, from the Charter to Meech Lake. Toronto, McClelland & Stewart.

Canada (1992). Consenses report on the Constitution, Charlottetown, August 28, 1992, Final Text, and Draft Legal Test.

Canada (1997). Gathering Strength: Canada’s Aboriginal Action Plan. Ottawa, Minister of Indian Affairs and Northern Development.

Canada. (2007). “The Atlas of Canada: Historical Indian Treaties.”   Retrieved August 11th, 2009, fromhttp://atlas.nrcan.gc.ca/site/english/maps/reference/national/hist_treaties/map.pdf.

Canada, S. (2006). “2006 Community Profiles – Quebec.” fromhttp://www12.statcan.ca/census-recensement/2006/dp-pd/prof/92-591/details/Page.cfm?Lang=E&Geo1=CSD&Code1=2466023&Geo2=PR&Code2=24&Data=Count&SearchText=Montreal&SearchType=Begins&SearchPR=01&B1=All&Custom=.

Canada, S. (2006). “Aboriginal Peoples.” fromhttp://www41.statcan.ca/2008/10000/ceb10000_000_e.htm.

Commonwealth of Australia. (1967). “Commonwealth of Australia Constitution Act “   Retrieved August 11th, 2009, fromhttp://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html.

Dacks, G. (2004). “Implementing First Nations Self-Government in Yukon: Lesson for Canada.” Canadian Journal of Political Science 37(3): 671-694.

Dene Declaration. (1975). “Dene Declaration.”   Retrieved August 11th, 2009, from http://www.denenation.com/denedec.html.

Falleti, T. G. (2006). “Theory-Guided Process-Tracing in Comparative Politics: Something Old, Something New.” APSA-CP: Newsletter of the American Political Science Association Organized Section in Comparative Politics 17(1): 9 – 14.

Fearon, J. D. (1991). “Counterfactuals and Hypothesis Testing Political Science.”World Politics 43(2): 169 – 195.

Flanagan, T. (2000). First Nations? Second Thoughts, McGill-Queens University Press.

Fleras, A. and J. L. Elliott (1992). The ‘nations within’ : aboriginal-state relations in Canada, the United States, and New Zealand. Don Mills, Ont, Oxford University Press.

Fleras, A. and J. L. Elliott (2002). Engaging Diversity: Multiculturalism in Canada. Toronto, Nelson: Thomson Learning.

Forman, M. (1998). Nationalism and the international labor movement : the idea of the nation in socialist and anarchist theory. Pennsylvania, Pennsylvania State University Press.

Gagnon, A. and J. Tully (2001). Multinational democracies. Cambridge ; New York, Cambridge University Press.

Gould, S. L. (May, 2001). “Mixing Bodies and Beliefs: The Predicament of Tribes.” Columbia Law Review 101(4): 702-772.

Guibernau, M. M. (1999). Nations without states : political communities in a global age. Malden, Mass., Blackwell Publishers.

Gumbert, M. (1984). Neither justice nor reason : a legal and anthropological analysis of Aboriginal land rights. St Lucia, Qld., Australia, University of Queensland Press ;.

Henson, E. C., S. Cornwall, et al. (2008). The state of the Native nations: conditions under U.S. policies of self-determination/Harvard Project on American Indian Economic Development. New York, Oxford University Press.

Hobsbawm, E. J. and T. O. Ranger (1983). The invention of tradition. Cambridge, Cambridge University Press.

Hutchinson, J. (1994). Modern nationalism. London, Fontana Press.

Ignatieff, M. (2000). The Rights Revolution, Hous of Anansi Press.

Indian and Northern Affairs Canada (2004). Measuring the Well-Being of Aboriginal People: An Application of the United Nations’ Human Development Index to Registered Indians in Canada, 1981 – 2001.

Indian Chiefs of Alberta (1970). Citizens Plus: A Presentation to Right Honourable P.E. Trudeau. Edmonton, Indian Association of Alberta.

Kaufmann, E. P. (2004). Rethinking ethnicity : majority groups and dominant minorities. London ; New York, Routledge.

Keating, M. (2001). So many nations, so few states: territory and nationalism in the global era. Multinational democracies. A. Gagnon and J. Tully. Cambridge ; New York, Cambridge University Press411 p.

Kymlicka, W. (2000). Politics in the vernacular : nationalism, multiculturalism, and citizenship. Oxford, Oxford University Press.

Kymlicka, W. (2004). Finding Our Way: Rethinking Ethnocultural Relations in Canada. New York, Oxford University Press.

Ladner, K. L. (2003). Treaty Federalism: An Indigenous Vision of Canadian Federalisms. New trends in Canadian federalism. F. Rocher and M. C. Smith. Peterborough, Ont., Broadview Press399 p.

Locke, J. (1966). The second treatise of government (an essay concerning the true original, extent and end of civil government) and a letter concerning toleration. Oxford, Blackwell.

McFarlane, P. (1993). Brotherhood to Nationhood: George Manuel and the Making of the Modern Indian Movement. Toronto, Between the Lines.

McLachlan, N. (1989). Waiting for the revolution : a history of Australian nationalism. Ringwood, Vic., Penguin Books.

McNeil, K. (1996). “Aboriginal Governments and the Canadian Charter of Rights and Freedoms.” Osgoode Hall law journal 34: 61 – 99.

Mill, J. S. (1861). Of nationality, as connected with representative government.Utilitarianism, On Liberty and Considerations on Representative Government, J.M. Dent & Sons Ltd, 1972.

Milloy, J. S. (1999). A national crime : the Canadian government and the residential school system, 1879-1986. Winnipeg, University of Manitoba Press.

Murphy, M. (2001). “Culture and the Courts: A New Direction in Canadian Jurisprudence on Aboriginal Rights?” Canadian Journal of Political ScienceXXXIV(1): 109 – 129.

Neville, A. O. and A. P. Elkin (1947). Australia’s coloured minority : its place in the community. Sydney, Currawong Pub. Co.

New Zealand Statistics. (2006). “QuickStats About Māori.”   Retrieved August 11th, 2009, fromhttp://www.stats.govt.nz/Census/2006CensusHomePage/quickstats-about-a-subject/quickstats-about-maori/maori-ethnic-population-te-momo-iwi-maori.aspx.

Parliament of Canada (2006). Québécois nation motion.

Ponting, J. R. (1986). Ardous Journey: Canadian Indians and Declonization. Toronto, McClelland and Stewart.

Posner, D. N. (2004). “The Political Salience of Cultural Difference: Why Chewas and Tumbukas Are Allies in Zambia and Adversaries in Malawi.” American Political Science Review 98(4): 529 – 545.

Prince, M. J. and F. Abele (2003). Paying for Self-Determination: Aboriginal People, Self-Government, and Fiscal Relations in Canada. Canada: The State of Federation 2003: Reconfiguring Aboriginal-State Relations. M. Murphy. Montreal & Kingston, McGill-Queen’s University Press237-263.

Ray, A. J., J. Miller, et al. (2000). Bounty and Benevolence: A History of Saskatchewan Treaty. Montreal & Kingston, McGill-Queen’s University Press.

Read, P. (1984). The Stolen Generations : the removal of Aboriginal children in New South Wales 1883 to 1969. New South Wales. Ministry of Aboriginal Affairs. and New South Wales Family and Children’s Services Agency. Aboriginal Children’s Research Project. Sydney, N.S.W. Ministry of Aboriginal Affairs20p.

Reynolds, H. (1996). Aboriginal sovereignty : reflections on race, state and nation. St. Leonards, NSW, Allen & Unwin.

Roeder, P. G. (2007). Where nation-states come from : institutional change in the age of nationalism. Princeton, N.J., Princeton University Press.

Rowse, T. (1998). White Flour, White Power: From Rations to Citizenship in Central Australia. Cambridge, UK, Cambridge University Press.

Royal Commission on Aboriginal Peoples (1996). Partners in Confederation. Ottawa, Canada Communications Group.

Royal Commission on Aboriginal Peoples (1996). Restructing the Relationship. Ottawa, Canada Communications Group.

Sioui, G. E. (1995). For an Amerindian Autohistory: an essay on the foundation of a social ethic. Montreal & Kingston, McGill – Queen’s University Press.

Smith, A. D. (1983). Theories of nationalism : Anthony D. Smith. New York, NY, Holmes & Meier.

Smith, A. D. (1986). The ethnic origins of nations. Oxford, Basil Blackwell.

Statistics Canada. (2009). “Quarterly demographic estimates.”   Retrieved August 11th, 2009, from http://www.statcan.gc.ca/daily-quotidien/090326/t090326a2-eng.htm.

Trainor, L. (1994). British imperialism and Australian nationalism : manipulation, conflict and compromise in the late nineteenth century. Cambridge, Cambridge University Press.

Tully, J. (1995). Strange multiplicity : constitutionalism in an age of diversity. Cambridge ; New York, Cambridge University Press.

U.S. Census Bureau. (2001). “Profiles of General Demographic Characteristics.”2000 Census of Population and Housing  Retrieved August 11th, 2009, fromhttp://www.census.gov/prod/cen2000/dp1/2kh00.pdf.

Vujačić, V. (1996). “Historical Legacies, Nationalist Mobilization, and Political Outcomes in Russia and Serbia: A Weberian view.” Theory and Society 25(6): 763 – 801.

Zimmer, O. (2003). Nationalism in Europe, 1890-1940. Basingstoke, Palgrave Macmillan.

Appendix 1

fig 1: Posner’s Final Hypothesis: demographics determines cultural significance

Nation-State Chewas and Tumbukas Groups     Political mobilization by state elite

Malawi two thirds of total population        cultural cleavages politically salient

Zambia only one third of total population   cultural cleavages not salient

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.