Electoral Justice for
Aboriginal People in Canada
Trevor Knight*
This article argues that legislative action is re-
quired to redress the chronic under-representation of
Aboriginal people in Parliament. After drawing on the
existing scholarship and attempts in the United States
and New Zealand to modify electoral systems to im-
prove minority group representation, the author advo-
cates the creation of guaranteed electoral districts for
Canada’s Aboriginal peoples. Significant benefits
would result, particularly the achievement of policy re-
suits that would better reflect Aboriginal values and
goals. He responds to the principal critiques of Abo-
riginal electoral districts, that (1) the anticipated bene-
fits would not occur, (2) Aboriginal electoral districts
are inconsistent with Canada’s individualist political
culture, and (3) guaranteed representation is incom-
patible with Aboriginal self-government. In consider-
ing the constitutionality of the proposal, he notes the
American experience of affirmative districting struck
down by courts. Due to constitutional and jurispruden-
tial differences, however, guaranteed Aboriginal repre-
sentation would be constitutional in Canada; specifi-
cally, potential challenges under sections 3 and 15 of
the Canadian Charter of Rights and Freedoms would
fail. Finally, he addresses the possibility that Parliament
could be constitutionally compelled to enact legislation
creating guaranteed Aboriginal representation, par-
ticularly by section 35 of the Constitution Act, 1982
and sections 3 and 15 of the Charter, and canvasses
appropriate remedies. He concludes that Canada will
have failed to live up to the promise of democracy until
Canada’s Aboriginal peoples obtain more effective rep-
resentation in Parliament
L’auteur soutient qu’una action Idgislative est n-
cessaire afin de rendlier a la sous-reprsentation par-
lementaire chronique des peuples autochtone. Apecs
considfration des dtudes antrieures et des tentatives d
modifier leas s)ystmas dlectoraux pour amrliorer la rTpi-
sentation des minorit~s aux 11tals-Unis et ean Nouvele-
7_lande, l’auteur sugg~re la crninion de circonscriptions
dlectorales garanties aux peuples autochtones cana-
diens. Parmi les avantages d’une telle formula, on re-
trouverait en particulier l’atteinte d’objectifs politiques
refldtant daantage leas int&drts et leas valeurs autoch-
tones. Scion l’autcur, leas principaux arguments contre
une telle proposition –
soit qua les avantages recher-
chds no seraient pas atteints. qua les circonscriptions
autochtones sont incompatibles avec la culture politi-
qua indMdualiste canadienne, et qua la repr&cntation
garantie est incompatible avec i’autonomie gouve z-
mentale autochtone –
no sont pas fords D’autre part,
bien que les cours am~ricaines aiat d6clard inzonstitu-
tiormelles cerlaines tentatives similaires. a rcpsenta-
tion autochtone garantie serait -alidz dans le contexte
constitutiomiel etjurisprudentiel canadian. En particu-
lier, scion tauteur, des contestations potentiells en
vertu des articles 3 et 15 d la Charte canadienne des
droits et Iibert& &lhoueraient. Finalemant, il eat possi-
ble que le parlement canadiean ait l’obligation constitu-
tionnelle do garantir la reprsentation autochlona, en
vertu de l’article 35 da la Loi consfitutionndle de 1952
et des articles 3 et 15 de la Charte; l’auteur fait dtat des
rdparations pertinentes, le cas dchdanL Quoi qu’il en
soit, ]a Canada continuera 4 &houer a r,.aliscr l’objectif
d6mocratique jusqu’a ce que ses pauples autochtona
obtiennent une reprsntation parlamantaire plus cffec-
BA..
(Queen’s); LL.B. (Toronto); LL.M. (Harvard). I would like to thank Professor Patrick
Macklem for his suggestions on an earlier draft and his encouragement.
McGill Law Journal 2001
Revue de droit de McGiU 2001
To be cited as: (2001) 46 McGill W. 1063
Mode de r6fdrence: (2001) 46 R.D. McGU1 1063
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MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
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Introduction
I. The Under-representation of Aboriginal People in Parliament
I1. Working around the Bias Inherent in the SMP System
A. Proposals in Other Countries
1. Proportional Representation
2. Affirmative Districting in the United States
3. Guaranteed Maori Seats in New Zealand
B. Proposals for Guaranteed Aboriginal Representation in Canada
Ill. Arguments against Aboriginal Electoral Districts
A. The Benefits Would Not Occur
1. The Hypothesized Beneficial Results
2. The Counter-argument-Beneficial Results Would Not Occur
3. The Long-Term View
B. Canada’s Individualist Political Culture
1. The Individualist Critique
2. The Role of the Group in Canada’s Electoral Laws
3. The Normative Advantages of Tempered Individualism
4. Aboriginal People as a Group for Representation
5. Setting a Precedent for Other Groups
6. Conclusion
C. The
Incompatibility of Guaranteed Representation and Self-
Government
IV. The Constitutionality of Guaranteed Aboriginal Representation
A. Affirmative Districting
B. Aboriginal Electoral Districts
1. Section 15
2. Section 3
V. Guaranteed Aboriginal Representation via the Constitution
A. The United States
B. Section 35
C. Section 3
D. Section 15
E. Remedy
Conclusion
2001]
T KNIGHT- ELECTORAL JUSTICE FOR ABORIGINAL PEOPLE
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Introduction
In January 1999 Premier Camille Thdault of New Brunswick proposed reserv-
ing two seats in the provincial legislature for Aboriginal people. Although the prov-
ince’s Aboriginal people have since rejected this proposal,’ it would have met a long-
standing representational deficit. There has never been an Aboriginal M.L.A. in New
Brunswick. In fact, Aboriginal people are under-represented in democratic institutions
across Canada, notably the House of Commons. Guaranteed representation for Abo-
riginal people has been proposed a number of times as a means of remedying this
problem. Indeed, such proposals were made when Aboriginal people living on re-
serves first achieved the right to vote, and were made during the round of constitu-
tional talks in 1983 held to deal with Aboriginal issues. The most recent comprehen-
sive proposal surfaced in 1991, when the Royal Commission on Electoral Reform and
Party Financing (“Lortie Commission”) proposed a system by which a number of
Aboriginal representatives could be elected in province-wide special Aboriginal-only
constituencies. Within the last decade a number of authors have considered these pro-
posals and the arguments made for and against guaranteed representation for Aborigi-
nal people This article seeks to build on this literature and consider the constitutional
issues surrounding the creation of guaranteed Aboriginal seats in the House of Com-
mons.
Although there are many identifiable groups that are under-represented in Parlia-
ment in comparison to their numbers in the Canadian population as a whole, with
women and visible minorities being well-known examples, this article focusses on the
under-representation of Aboriginal people. As will be discussed throughout, Aborigi-
nal people have a unique claim to guaranteed representation as a result of their an-
cestors’ having been the original inhabitants of the land, their status as identifiable na-
tions, and their treaty relationships with the federal government. Although other iden-
tifiable groups in society may have legitimate political claims for guaranteed repre-
sentation in Parliament, the claim of Aboriginal people is the strongest.
The theme underlying this article is that guaranteed seats would play a role in im-
proving the lives of Aboriginal people, and for that reason should be supported. Abo-
‘ See G. Hamilton, “Chiefs Reject Offer of Guaranteed Seats in N.B. Legislature: Unanimous in
Opposition” National Post (25 March 1999) A5 [hereinafter “Chiefs Reject Offer”].
‘See R. Gibbins, “Electoral Reform and Canada’s Aboriginal Population: An Assessment of Abo-
riginal Electoral Districts” in Canada, Royal Commission on Electoral Reform and Party Fmancing,
Aboriginal Peoples and Electoral Reform in Canada, ed. by RA. Milen (Toronto: Dundurn Press,
1991) 153; R.A. Milen, “Aboriginal Constitutional and Electoral Reform” in ibid., 3; T. Schouls,
“Aboriginal Peoples and Electoral Reform in Canada. Differentiated Representation versus Voter
Equality” (1996) 29 Can. J. Pol. Sc. 729.
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riginal people are rightly suspicious of a Canadian state that has for so long ignored
and undermined their most fundamental rights. Greater representation for Aboriginal
people in Parliament would not undo the wrongs of the past, but it would provide both
short-term benefits and another avenue of dialogue and deliberation to be used in an
effort to improve the future of Canada’s Aboriginal people.
Part I considers the under-representation of Aboriginal people in Canada’s demo-
cratic institutions. This under-representation ought to concern Canadians because it
represents a disjunction between the political order and Canada’s First Nations. Abo-
riginal people in particular ought to be concerned, because representation in Parlia-
ment is a necessary condition for accessing the full practical benefits of participation
in that political order. This part also looks at the effect of the electoral system on the
geographically dispersed Aboriginal population and claims that this is in large part re-
sponsible for the under-representation of Aboriginal people in Parliament. Part II
looks to ways that minority representation has been improved in the United States and
New Zealand and considers proposals for guaranteed representation of Aboriginal
people that have been made in Canada. Part 1H1 seeks to refute the arguments most
commonly raised against guaranteed Aboriginal representation. I argue that Aborigi-
nal people would have a positive effect on the policy outcomes of Parliament, even
though Aboriginal members could sometimes be ignored and outvoted. Although this
positive effect could happen through direct influence, the most likely positive results
would stem from the legislative learning process that other M.P’s would go through
when faced with a larger number of Aboriginal colleagues. Part IV surveys possible
constitutional challenges to guaranteed representation for Aboriginal people, and the
reasons such challenges would fail. In Part V various ways in which a government
could be induced through the Canadian Charter of Rights and Freedoms’ to set up
guaranteed seats for Aboriginal people are considered. I argue that both sections 3 and
15 of the Charter provide possible avenues through which Aboriginal people could
utilize the courts to ensure that they are able to elect representatives of their choice.
I. The Under-representation of Aboriginal People in Parliament
Until 1960 status Indians living on reserves did not have the right to vote in Ca-
nadian elections unless they gave up their treaty status and any rights and privileges
associated with that status.4 The stated reasoning behind this denial of suffrage was
‘ Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
[hereinafter Charter].
Canada, Royal Commission on Electoral Reform, Summary of Issues from Hearings (Working
Document 33: Aboriginal Issues), looseleaf (Royal Commission on Electoral Reform) at 1 [hereinaf-
ter Working Document].
2001]
T KNIGHT- ELECTORAL JUSTICE FOR ABORIGINAL PEOPLE
1067
that Aboriginal people on reserves did not pay tax, and as such should not have a
voice in how taxes were collected and spent.5
Since 1960 Aboriginal people have had the right to vote. Between the expansion
of the franchise and 1993, however, only nine self-identifying Aboriginal people were
elected to the House of Commons.6 In the years between 1867 and 1993 only twelve
self-identifying Aboriginal people have been elected to the House. Of the nine Abo-
riginal people elected in the twentieth century before 1993, only three have been in
districts in which Aboriginal people do not constitute a majority of constituents. In
early 2000, there were only five self-identifying Aboriginal members of the House of
Commons.” Of those five, however, only one was self-identified as a “North American
Indian”, despite this group’s making up the vast majority of Aboriginal people in
Canada! Thus, Aboriginal people have, throughout history, consistently been under-
represented in the House of Commons. As of 1990 Aboriginal people were under-
represented in all provincial legislatures as well, but did constitute a quarter of the
legislature in the Yukon and a majority of the legislature in the Northwest Territories2
The serious under-representation of a significant national minority within Par-
liament represents a prima facie cause for concern for the Canadian state because of
what it says about the disconnection between Aboriginal people and the Canadian
political order. Roger Gibbins has stated that “there is little question that the existing
electoral system does not provide an effective bridge between Aboriginal communi-
5 See Canada, Report of the Royal Conunission on Aboriginal Peoples: Restncturing the Relation-
ship, voL 2, part I (Ottawa: Minister of Supply and Services Canada, 1996) at 375 [hereinafter RCAP
Report].
6See also Canada, Committee for Aboriginal Electoral Reform, “The Path to Electoral Equality” in
Canada, Royal Commission on Electoral Reform and Party Financing, Refomzing Electoral Democ-
racy: What Canadians Told Us, vol. 4 (Ottawa: Minister of Supply and Services Canada, 1991) 229 at
241 [hereinafter Refonning Electoral Democracy VOL 4.].
‘See online: Parliament of Canada
‘Three of the members are identified as Metis, while one is identified as Inuit. The 1996 census re-
ports the following: Aboriginal Ethnic Origin: 1,101,955; North American Indian Origin: 867,225;
Metis Origin: 220,735; Inuit Origin: 49,845. These statistics will reflect to some extent the incomplete
enumeration of certain Indian reserves and Indian settlements in 1996 (CD-ROM: Dimensions Series:
Portrait of Aboriginal Population in Canada: 96 Census (Statistics Canada)). These figures reflect
multiple responses, Le individuals self-identifying with more than one category. The methodology for
surveying the Aboriginal population was changed for 1996. See Statistics Canada, 1996 Census Dic-
tionary: Final Statistics Edition (Ottawa: Statistics Canada, 1999) at 5-8.
9 See Working Document, supra note 4 at 2.
” Although the term “minority” is resisted as a way of describing Aboriginal people, it can ba seen,
for the purposes of the present problem, that the barriers faced by minorities in other political com-
munities and Aboriginal people are similan
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ties and the broader political community.”‘ As he noted, elections play an important
symbolic role within a community.2 He further asserted, “Electoral participation …
serves as a measure of health for the political community, or at least for its electoral
components. In the case of Canada’s Aboriginal peoples, the vital signs are often dis-
tressingly weak”” The Royal Commission on Aboriginal Peoples, reporting in 1996,
stated that “Canadian political institutions often lack legitimacy in the eyes of Abo-
riginal people.””
The under-representation of Aboriginal people in Parliament should concern
Aboriginal people as well. Katherine Swinton has observed that Parliamentary repre-
sentatives serve two functions. First, representatives seek to “voice their constituents’
perspective and to reflect their needs in the policy process” Second, a representative
acts as an “ombuds, assisting the constituent who has problems with the government
apparatus”‘” An unrepresented, or under-represented, community will have no one to
perform these functions on its behalf. Anne Phillips has noted that some political sci-
entists consider it “almost as axiomatic” that inequality of participation in democratic
politics leads to an inequality in political influence.” Given the centrality of Parliament
within our democratic system, Aboriginal people should be concerned that under-
representation in this institution will inevitably result in fewer benefits for them from the
political order. While other institutions are involved with policy-making, the legisla-
ture is where resources are allocated and government policies scrutinized.” Thus, the
under-representation of Aboriginal people in Parliament is of concern to the extent
that such under-representation prevents Aboriginal people from fully accessing the
benefits of the democratic system. The election of a greater number of Aboriginal rep-
resentatives would allow Aboriginal people to more fully access those benefits.
The primary factor responsible for this under-representation of Aboriginal people
in Parliament is the operation of the Canadian electoral system. This system divides
the country into 301 geographic constituencies. In each constituency the candidate
who polls a plurality of votes is elected to Parliament.” Canada thus has a single-
member plurality (“SMP”) electoral system. Such a system can be contrasted with
“Gibbins, supra note 2 at 153.
2lbid. at 154.
1Ibid.
‘4 RCAP Report, supra note 5 at 374.
“S See K. Swinton, “Federalism, Representation, and Rights” in J.C. Courtney, P. MacKinnon &
D.E. Smith, eds., Drawing Boundaries: Legislatures, Courts, and Electoral Values (Saskatoon: Fifth
House, 1992) 17 at 18 ×..
“See A. Phillips, The Politics of Presence (Oxford: Clarendon Press, 1995) at 32.
” New Zealand, Report of the Royal Commission on the Electoral System: Towards a Better De-
mocracy (Wellington, N.Z.: V.R. Ward, Government Printer, 1986) at 86.
” See Elections Act, R.S.C. 1985, c. E-2, s. 189.
2001]
T KNIGHT- ELECTORAL JUSTICE FOR ABORIGINAL PEOPLE
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proportional representation (“PR”) electoral systems, which are “specifically designed
to allocate seats in proportion to votes, in the hope that assemblies and governments
will accurately reflect the preferences of the electorate.’
A number of authors have observed that the logic of the SMP system causes geo-
graphically dispersed minorities, such as Aboriginal people and ethnic minorities, to
be under-represented relative to their proportion of the population as a whole. Gibbins
wrote that “[a]lthough groups which enjoy substantial geographic concentration may
exercise significant leverage in specific ridings, as do Aboriginal voters in the North-
west Territories, the population size of federal ridings (approximately 90 000 indi-
viduals) precludes minority-group control in most cases.’s The Committee for Abo-
riginal Electoral Reform noted that “[w]hile Aboriginal peoples constitute upward of
4% of the overall Canadian population, their population distribution across the coun-
try has left them numerical minorities in all but the two territorial ridings. As a result,
it makes it difficult for Aboriginal people to influence the outcome of an election:”
The committee stated that
[w]hile current electoral law allows for group interests to be taken into account
in the drawing of electoral boundaries and has worked to the benefit of official
language minority groups and geographically concentrated ethnic communi-
ties, the existing law is not capable of accommodating the broad geographic
distribution of Aboriginal peoples.–
As indicated by the Lortie Commission, the administrators of existing laws do not
go out of their way to accommodate Aboriginal interests. For example, many northern
ridings are drawn so as to include southern cities and towns, ensuring that Aboriginal
people are consistently outvoted in these ridings.- Thus, the electoral authorities have
not sought to improve Aboriginal representation through boundary drawing. Even if
they pursued this goal, however, the geographic dispersal of Aboriginal people would
probably prevent them from achieving anything close to proportionate representation.
The logic of the SMP system pushes parties to select candidates who have the charac-
teristics of the majority of the riding.” Given that Aboriginal people are dispersed across
the country, few Aboriginal candidates are selected to run, and even fewer elected.
“9 Library of Parliament, Electoral Systens (Background Paper) by B. O’Neal (Otta,, Library of
Parliament, 1994) at 5.
Gibbins, supra note 2 at 157.
2 1″The Path to Electoral Equality”, supra note 6 at 243.
1bid1
at 242.
Refonning Electoral Democracy WoL 4, supra note 6 at 48.
24 See L. Young, Electoral Systems and Representative Legislatures: Consideration of Alternative
Electoral Systems (Ottawa: Canadian Advisory Council on the Status of Women, 1994) at 11.
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II. Working around the Bias Inherent in the SMP System
All democratic countries face the challenge of ensuring fair representation of
geographically dispersed communities in their central democratic institutions. In 1995
Will Kymlicka remarked that although African-Americans represented 12.4 percent
of the population of the United States, they held only 1.4 percent of the total elected
offices in that country.’ Similarly, he noted that Hispanic-Americans represented 8
percent of the population, but held 0.8 percent of the elected offices.” In New Zea-
land, prior to the adoption in 1996 of a more proportional electoral system, the Maori
people were also chronically under-represented in Parliament. Thus, the under-
representation of Aboriginal people is a problem that is not unique to Canada.
A. Proposals in Other Countries
1. Proportional Representation
The most common, and perhaps most obvious, way to avoid the biases of the
SMP electoral system against groups that are not geographically concentrated is to re-
place the SMP system with a PR electoral system. Kenneth Benoit and Kenneth Shep-
sle, in their study of the effects of different electoral systems on the election of minor-
ity candidates, found that PR provides minorities with far better representation than
does SMP.’ They stated, “The most robust empirical regularity across all this electoral
experience
large-district, proportional-
representation systems and success by electoral minorities in gaining seats” They
pointed to a number of examples from around the world where minorities have
achieved representation nearly proportionate to their share of the population as a
whole through a PR system.’
relationship between
the positive
is
See W. Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford:
Clarendon Press, 1995) at 132 [hereinafter Multicultural Citizenship].
26Ibid.
2, See M.P.K. Sorrenson, “A History of Maori Representation in Parliament” in New Zealand, supra
note 17, Appendix B.
2’Ibid. at 66.
2’K. Benoit & K.A. Shepsle, “Electoral Systems and Minority Representation” in RE. Peterson, ed.,
Classifying by Race (Princeton, NJ.: Princeton University Press, 1995) 50.
Ibid at 69. E.g. in Finland the Swedish minority constitutes about 6 percent of the total popula-
tion, and the Swedish People’s Party has achieved levels of support of 4.5 to 5.5 percent, receiving
between ten and twelve seats in the two-hundred-seat Finnish Parliament throughout the 1970s and
1980s. They also noted that Catalan and Basque parties have achieved proportionate representation in
Spain, and that African-Americans have achieved increased representation in Chilton County, Ala.,
through the use of proportional representation electoral systems. Benoit & Shepsle observed that
2001]
T KNIGHT- ELECTORAL JUSTICE FOR ABORIGIAt4L PEOPLE
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Although PR would likely improve the representation of Aboriginal people in
Canada, it is unlikely that it is on the horizon. Electoral systems are notoriously diffi-
cult to change, primarily because those people most able to make such reforms are the
beneficiaries of the status quo and thus unlikely to push for a new system. In such cir-
cumstances it is wise to consider other options for improving the representation of
Aboriginal people within the general framework of the current electoral system.
Benoit and Shepsle observed that a number of techniques have been used to en-
sure more proportionate representation of minorities within SMP systems. One such
technique used in the United States is the drawing of districts so as to include a ma-
jority of a minority ethnic group. A second example, in use in New Zealand for the
Maori people, is guaranteed representation. Benoit and Shepsle referred to such solu-
tions as “workarounds” because they are designed to evade the logic of the SMP sys-
tem so as to ensure minority representation. They stated that “[w]ithout such work-
arounds … experience indicates that the [SMP] system is ill-suited for providing seats
to electoral minorities”-” This article now turns to a consideration of such devices.
2. Affirmative Districting in the United States
To understand fully the history of race-conscious or affirmative districting in the
United States, it is useful to consider the context in which this solution to minority
under-representation was developed. The Voting Rights Act’ of 1965 was initially im-
plemented to increase African-American participation in elections in the south. State
officials had put in place a number of impediments to African-American voter regis-
tration. As of 1965 only 35.5 percent of voting-age African-Americans in the south
were registered to vote, as compared with 73.4 percent of whites.” The Voting Rights
Act was fairly successful in achieving its initial objective. African-American voter
these results hold for situations where a more direct comparison can be made between SMP and PR
systems. In New Zealand’s first election under a more proportional system in 1996, sixteen Maori
M.P’s were elected, providing representation roughly proportional to the Maori share of the total
population. This contrasted with Maoris’ traditional under-representation in Parliament in comparison
with their representation in the population. Benoit & Shepsle also noted the 1970 New York City mu-
nicipal elections, in which African-Americans constituted more than 20 percent of the electorate and
Puerto Ricans approximately 12 percent. Of the thirty-seven city council members elected through
SMP, none was Puerto Rican and just two were African-American (5.4 percent). In contrast, of the
279 community school board members elected through PR, nearly 28 percent were Puerto Rican or
African-American (ibi at 73 ×.urisdictions
blacks simply moved from denying them access to the ballot to more sophisticated
schemes developed to dilute the impact of their new voting strength:”‘
Often jurisdictions were able to do this by implementing at-large electoral sys-
tems.’ These electoral systems would ensure that a bare majority of whites, voting as
a bloc, would be able to continue to elect all the members of the legislature or city
council. For example, if there is a particular council of ten members in a city with a
voting population that is 60 percent white and 40 percent African-American, using
single-member districts, African-Americans may form a majority in a number of
these seats, although probably not four. But if the entire city is treated as one district,
voters are given ten votes as in an at-large system, and assuming voting is racially
polarized, whites can easily elect ten members of their choosing.
In judgments starting in the early 1970s, the U.S. courts increasingly found such
electoral systems to be illegal under the Voting Rights Act.” The courts and the U.S.
Justice Department, which became involved in state redistricting through the provi-
sions of the Voting Rights Act, sought to draw single-member districts with African-
American majorities as remedies for these violations of the legislation.”3 Due to the
operation of the SMP electoral system, however, African-American and Hispanic
candidates were still not elected in numbers that came close to reflecting their repre-
sentation in the population as a whole. As with Aboriginal people in Canada, African-
American and, Hispanic voters were dispersed over a number of constituencies, and
thus formed the majority in relatively few districts. To remedy this situation, legisla-
tures began to redraw boundaries so as to ensure that African-Americans and His-
panics made up the controlling majority in a greater number of districts.”‘ Prior to the
1992 congressional election, many boundaries were redrawn so as to create a number
of majority-minority districts.’ This remedy is referred to as “affirmative gerryman-
dering” or “affirmative districting”.
‘ Ibid. at 23.
” Ibid. at 23-24.
‘ See Phillips, supra note 16 at 86.
3 Ibid.
38 Ibid
” See K.J. Bybee, Mistaken Identity: The Supreme Court and the Politics of Minority Representa-
tion (Princeton, N.J.: Princeton University Press, 1998) at 99, and his discussion of UJO, infra note
178, for the litigation surrounding one such case in which black voters spread across a number of dis-
tricts in New York City were consolidated into one “majority-minority” district.
See E. Daly, “Idealists, Pragmatists, and Textualists: Judging Electoral Districts in America, Can-
ada, and Australia” (1998) 21 B.C. Int. & Comp. L. Rev. 261 at 289.
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T KNIGHT- ELECTORAL JUS77CE FOR ABORIGINAL PEOPLE
1073
As noted, African-Americans and Hispanics still have nothing close to propor-
tionate representation in the legislatures, and there are signs that what achievements
there have been may be rolled back by the courts.” Minorities have, nonetheless,
achieved far better representation with affirmative districting than they have had at
any other time in American history.”
The American effort to work around the effects of the SMP electoral system using
affirmative districting has thus had mixed results. African-American and Hispanic
candidates are increasingly elected at all levels of American government, but the rep-
resentation of these groups still lags far behind their proportion in the population. Part
of this is the result of the fact that at a certain point the desire to draw districts in a
race-conscious way runs into the realities of geography. For congressional districting,
at least, the U.S. Supreme Court has stuck to a strict rule of absolute equality of
population between districts.” In many states it is impossible to draw a district that has
a majority of minority voters, is reasonably geographically contiguous, and also con-
forms to the equal population requirements.” For this reason, drawing new single-
member districts to increase minority representation can only ever be partially effec-
tive, and affirmative districting can only ever be a partial solution.
3. Guaranteed Maori Seats in New Zealand
Since 1867 New Zealand has had guaranteed separate representation for its Maori
people. This system was meant to be a temporary expedient until Maori people en-
tered the general voting roll.” Initially the Maori were guaranteed four seats and
whites were guaranteed seventy-two, although whites outnumbered Maori in the gen-
eral population by only five to one.’ The Maori seats covered the whole of New Zea-
4, See Part IVA, below.
41 Phillips noted that in absolute terms African-American representatives at all levels of government
jumped from 500 in the early 1970s to over 6,800 by 1988 (supra note 16 at 87). While there were
only 3 African-Americans in eleven southern legislatures in 1965, by 1985 this number vas 176,
equivalent to almost 10 percent of the members of these legislatures (ibid). Further, the results of the
congressional redistricting have been equally dramatic. Eg. in South Carolina 30 percent of the elee-
torate is African-American, and African-American voters, when given the option, vote almost unani-
mously for African-American candidates. Until 1992, however, South Carolina never had an African-
American member of Congress. In 1992 two African-American candidates were elected to South
Carolina’s twelve-person congressional delegation-both from newly created majority-minority dis-
tricts. See G. King, J. Bruce & A. Gelman, “Racial Fairness in Legislative Redistricting” in Peterson,
supra note 28, 85 at 87-88.
4See Karclher v. Daggett, 462 U.S. 725, 103 S. Ct. 2653 (1983) [hereinafter Karier cited to U.S.].
The district at issue in ibid at 742 had been drawn so as to ensure greater minority representation.
“See Sorrenson, supra note 27 at B-58.
New Zealand, supra note 17 at 83.
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land and thus overlapped with the white constituency seats. For many years the num-
ber of Maori seats remained constant, while the number of white constituency seats
increased to ninety-seven by the early 1990s. Until 1967 the Maori were not allowed
to participate as candidates or voters in the election for the general seats, but after that
date, Maori voters could choose the voting roll on which to register.’
For a number of reasons it has been argued that the separate Maori seats are
problematic. Certainly, when first conceived of these seats were as much a method of
social control as a way of ensuring Maori participation in Parliament.” Maori repre-
sentatives have often been treated with disdain, and the freezing of their number at
four has meant that they have had difficulty influencing public policy.’ Augie Fleras
stated, “To put it bluntly, Maori seats were established and perpetuated for the wrong
reasons, and growing Maori indifference toward involvement in the system is the
price that is now being paid “‘
In 1986 the New Zealand Royal Commission on the Electoral System argued that
the system of separate representation should be abolished and a proportional repre-
sentation electoral system put into place.” The commission reasoned that a PR system
“would produce more effective Maori representation than is possible under plurality
with separate seats ” ‘2 For a number of years the commission’s recommendations were
ignored, but by the early 1990s there was a substantial push for electoral reform. The
government of the day proposed moving to a system of mixed-member proportional-
ity (“MMP”),” and pursuant to the suggestions of the commission, abandoning sepa-
rate representation for the Maori people.” Maori opposition to the abolition of sepa-
rate representation was, however, very strong.” Fleras remarked that the Maori defend
guaranteed representation for its “symbolic value” and because of its centrality to
“7 See ibid at 83-84. This amendment also allowed Europeans to stand as candidates in Maori dis-
tricts.
48 See A. Fleras, “Aboriginal Electoral Districts for Canada: Lessons from New Zealand” in Abo-
riginal Peoples and Electoral Reform in Canada, supra note 2, 67 at 72-73.
41 See ibid. at 72-77. Participation on the Maori roll lagged so that, by 1984, of 209,600 eligible
Maori, only 77,564 were registered on the Maori roll, leaving 132,000 registered on the general roll or
not registered at all (Sorrenson, supra note 27 at B-62 to B-63.)
‘0 Fleras, ibid. at 88.
51New Zealand, supra note 17 at 101-106.
“Ibid. at 105.
“Under MMP voters would have two votes, one for one of sixty-five representatives who would be
elected from constituencies, and one for one of the parties in a separate election to choose fifty-five
M.P’s from a party list.
‘ See K. Jackson & A. McRobie, New Zealand Adopts Proportional Representation: Accident?
Design? Evolution? (Aldershot, U.K.: Ashgate, 1998) at 220-21.
” See ibid. at 217.
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their “identity and survival”.r As a result of the opposition, it was decided that the
guaranteed seats would be retained, and when an MMP system was implemented in
1996, Maori were allowed to vote either for a general constituency seat or for one of
five separate Maori seats. In this election the Maori achieved representation in Parlia-
ment that was for the first time equivalent to their representation in the population as a
whole.’ Five Maori were elected through separate seats, while ten others were
elected, primarily through party lists.”
The New Zealand experience indicates that separate representation is a useful
means of achieving a certain minimum guaranteed level of representation for Abo-
riginal people. As well, guaranteed separate representation can clearly play a positive
role in affirming a community’s political distinctiveness. The experience also shows,
however, that proposals for guaranteed representation that are not motivated by fair-
ness and justice can quickly lose legitimacy in the eyes of the very people they are
meant to assist.
B. Proposals for Guaranteed Aboriginal Representation In Canada
Proposals for Aboriginal electoral districts (‘AED’s”) have a long history in Can-
ada. The first proposal for special Aboriginal representation in Canada’s Parliament
came from George Manuel, the leader of the then National Indian Brotherhood (now
the Assembly of First Nations) about the time of the extension of the franchise to all
Aboriginal people in 1960.” Proposals in support of such reform, however, became
increasingly common in the years immediately following the patriation of the consti-
tution. At the 1983 constitutional conference for first ministers and Aboriginal people,
a number of groups, including the Metis National Council and the Native Council of
Canada, proposed that Aboriginal people have guaranteed representation in Parlia-
ment and the provincial legislatures.’ Appearing before the Special Joint Committee
of the Senate and the House of Commons in 1983, the Native Council of Canada
stated that it viewed guaranteed representation of Aboriginal people as a mechanism
Supra note 48 at 76.
See T. Arseneau, “The Representation of Women and Aboriginals under PR: Lessons from New
Zealand” (1997) 18 Policy Options 9 at 11.
/bTid
See Elections Canada, A History of the bte in Canada (Oitawx Minister of Public Wors and
Government Services Canada, 1997) at 86.
‘ “Aboriginal Constitutional and Electoral Reform”, supra note 2 at 15.
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that would “foster effective participation of all Aboriginal people in the decision-
making process that structures daily life in Canada.”‘
These proposals gained momentum at the hearings of the Lortie Commission in
1989 and 1990. At these hearings the creation of special electoral districts, based on
the First Nations representation in Canada’s population as a whole, was advocated by
Aboriginal representatives. 2
In response, the Lortie Commission’s final report set out comprehensive propos-
als to establish a number of AEDs. The commission recommended that these seats not
be guaranteed in the way that the Maori seats are guaranteed, but that they should de-
pend upon Aboriginal people’s registering in sufficient numbers on separate voter
lists. The Lortie Commission proposed that in any province where 85 percent or more
of the provincial quotienC3 registered on Aboriginal voting lists, an AED should be
created.’ Following their creation, these constituencies would function in the same
way as normal constituencies, except that they would encompass the entire province.’
To ensure that creation of the AEDs did not require a constitutional amendment, the
Committee for Aboriginal Electoral Reform suggested that the new constituencies be
limited by provincial boundaries. Further, it was recommended that the creation of an
additional seat for Aboriginal people in a province not increase that province’s com-
plement in the House of Commons.’ This committee, which proposed the AEDs that
the Lortie Commission eventually came to accept, had high hopes for the additional
seats that would be created by the implementation of AEDs’ Despite the hopes of its
proponents, however, the proposal for AEDs was shelved, along with much of the rest
6″ Canada, Parliament, Special Joint Committee on Senate Reform, Minutes of Proceedings and
Evidence of the Special Joint Committee of the Senate and of the House of Commons on Senate Re-
form (27 September 1983) at 20:51.
62″Aboriginal Constitutional and Electoral Reform”, supra note 2 at 38.
The provincial quotient is established by dividing the province’s total population by its number of
seats. Thus, in a province with one million voters and one hundred seats, the provincial quotient
would be ten thousand.
‘ Canada, Royal Commission on Electoral Reform and Party Fimancing, Reforming Electoral De-
mocracy, vol. 2 (Ottawa: Minister of Supply and Services Canada, 1991) at 139 [hereinafter Reform.
ing Electoral Democracy Vol. 2].
Ibid. Interestingly, the commission’s proposals imply that if more than one constituency were cre-
ated within a province, these would be drawn on territorial lines.
S”The Path to Electoral Equality”, supra note 6 at 251; Reforming Electoral Democracy Vol. 2, su-
pra note 64 at 142.
6 The committee stated that Aboriginal M.P.’s would be able to press the case for self-government,
promote the Aboriginal position on issues beyond the boundaries of Aboriginal lands but affecting
Aboriginal people, and increase the participation of qualified Aboriginal people amongst the three
thousand Order in Council appointments made through parliamentary institutions (“The Path to
Electoral Equality”, ibid. at 256).
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of the Lortie Commission’s report. Throughout the 1990s there were provincial pro-
posals for the creation of special Aboriginal electoral representation, from Quebec,
Nova Scotia, and New Brunswick. The predominant position taken by Aboriginal
leaders in the latter half of the 1990s, however, was that special representation in Par-
liament and legislatures should be put aside as a goal so that Aboriginal communities
could focus on self-government. For example, the Royal Commission on Aboriginal
Peoples mentioned, but quickly discounted, the possibility of pursuing special Abo-
riginal representation within Parliament.’ Recently New Brunswick chiefs unani-
mously rejected the proposal for the creation of two separate constituencies for Abo-
riginal people in the provincial legislature!’ In a sense, this resistance to guaranteed
representation may seem surprising, considering the problems of under-representation
that Aboriginal people face in Parliament and the provincial legislatures.
Ill. Arguments against Aboriginal Electoral Districts
It is an important premise of this article that proportionate representation for Abo-
riginal people within Parliament is a desirable goal per se due to the instrumental
benefits that are likely to accrue from such a change. It is presumed that an increased
number of Aboriginal representatives, chosen by Aboriginal people to reflect their
concerns, will have a beneficial effect on the policy results from Parliament. As al-
ready noted, political scientists see such a result as “paradigmatic”.
Proposals for guaranteed representation have nonetheless met with criticism.
Three common lines of critique are identifiable in the literature. The first attacks the
underlying premise, arguing that it is far from certain that the election of a handful of
additional Aboriginal representatives will yield beneficial policy results. The second
claims that guaranteed representation for any group is inconsistent with our individu-
alist political culture and thus would be an incoherent addition to our current electoral
system. The third suggests that guaranteed representation in a central Parliament is
theoretically inconsistent with the achievement of self-government, and is therefore
undesirable in displacing the focus from that which is Aboriginal peoples’ top priority.
These concerns are important, and must be considered respecting any specific
proposal for Aboriginal electoral districts. As will be shown, however, none of the
critiques provides a basis to outweigh the prima facie benefits that would flow from
more proportionate representation of Aboriginal people in Parliament. Although
greater Aboriginal representation would not be an immediate cure for all the social
and economic problems facing Canada’s Aboriginal population, it would have long-
term beneficial effects in terms of educating other M.P.’s about the concerns and aspi-
See RCAP Report, supra note 5 at 374-77. See also Schouls, supra note 2 at 744, n. 39.
‘See supra note 1.
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rations of Aboriginal people. It will also be shown that Canada’s tradition of repre-
sentation is not that of untrammelled individualism. Rather, the concerns of groups
and communities of interest have always been considered in the districting process.
Guaranteed representation for Aboriginal people is merely an extension of this tradi-
tion. Finally, although guaranteed representation in Parliament is theoretically incon-
sistent with a conception of Aboriginal self-government that contemplates independ-
ence or absolute sovereignty, it can be seen as an appropriate, even necessary, com-
plement to the more commonly contemplated forms of self-government, by which
Aboriginal people would maintain some ties to the Canadian state.
A. The Benefits Would Not Occur
The strongest claim that can be made for AEDs is that they would lead to policy
results that would better reflect the values or goals of Aboriginal people. As such, the
strongest argument against guaranteed representation for Aboriginal people is that it
would not have this effect.
1. The Hypothesized Beneficial Results
Many who have made or studied proposals for guaranteed representation argue
that beneficial policy outcomes would flow from greater Aboriginal representation.
John Weinstein wrote that “[piroposals for guaranteed representation are designed to
ensure that aboriginal people fully participate in the decisions of public institutions
such as legislative assemblies and regional governments which impact directly on
their collective interests.’ Ovide Mercredi, appearing before the Lortie Commission
as vice-chair of the Manitoba Region of the Assembly of First Nations, declared, “We
do participate in the electoral process with the expectation and anticipation that we
may be able to influence the better treatment of our people and the full enjoyment of
our collective rights and freedoms.””
The relationship between a community’s representation and political influence is
so well accepted that it is almost trite to note. Swinton argued that the reason that
provinces have been concerned to keep a critical mass of M.P.’s in Parliament is that
the House, cabinet, and caucus are important avenues through which to convey re-
gional concerns in policy-making. ‘ Obviously, the best way to influence these bodies
is through the election of M.P.’s sympathetic to, and understanding of, one’s interests.
70 J. Weinstein, Aboriginal Self-Determination off a Land Base (Kingston, Ont.: Institute of Inter-
governmental Relations, 1986) at 7. See also Gibbins, supra note 2 at 157.
Quoted in “Aboriginal Constitutional and Electoral Reform”, supra note 2 at 41.
nSupra note 15 at 23.
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Some commentators have also noted that Aboriginal participation has made a dif-
ference in policy formation in the past. Robert Milen argued that Elijah Harper’s ac-
tion in the Manitoba Legislature in 1990 was “a powerful symbol of the impact of
electing Aboriginal legislators” The Committee for Aboriginal Electoral Reform ob-
served that several Aboriginal leaders from western Canada claimed that Aboriginal
M.L.A.’s have been effective in communicating their views and advancing their con-
cerns in western legislatures.’ Fleras noted evidence from New Zealand that Maori
M.P.’s have been successful in transforming Maori activism into “politically accept-
able programs”.”
Others have argued that the true power of an increased number of minority repre-
sentatives is in ensuring that issues of concern to minorities stay on the political
agenda. This view also holds that representatives of minority communities can serve
as a sort of early warning for governments in ensuring that their policies are sensitive
to the goals and needs of the entire community. Fleras has maintained that the Maori
seats have provided the Labour Party, which consistently captures all of them, with “a
coordinated and reliable mechanism of communication in planning public policy.”
He further suggested that the principal advantage of the Maori seats for the Labour
Party has been that “Maori members identify relevant issues for the party, as well as
alert party officials to trends in Maoridom that would otherwise escape the attention
or interests of party strategists.'” Phillips argued that because a minority will be con-
sistently outvoted, the advantage of presence in a legislature must be the moral force
of having representatives there.” She thus suggested that minority candidates vill be
able to influence public policy by their ability to remind governments to act in a way
sensitive to the concerns of the minority.
2. The Counter-argument-Beneficial Results Would Not Occur
While an increased presence in a legislature may be a necessary condition to in-
fluence policy outcomes, it is not in itself sufficient. Moreover, evidence on the ability
of minority representatives beneficially to affect legislative outcomes is mixed. Fleras
indicated that there is much debate as to how much impact Maori M.P.’s have really
‘Aboriginal Constitutional and Electoral Reform”, supra note 2 at 33.
”
“Supra note 48 at 84. See also the comments of Ian Cowie at the hearings of the Lortie Commis-
e Path to Electoral Equality”, supra note 6 at 263.
sion, as noted in Working Document, supra note 4 at 5.
76Fleras, ibid. at 77.
Ibid. [reference omitted].
73 Supra note 16 at 110.
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had on the policies of the New Zealand government. ‘ Kent Roach has reminded us
that guaranteed seats in the legislature do nothing to ensure that a government will be
more responsive to those members.’ This is especially so in our system, where a gov-
ernment elected with a majority of the seats can control the legislative agenda for up
to five years. If a government unsympathetic to Aboriginal views were elected, it is
unclear that it would make any difference that Aboriginal people were proportionately
represented in Parliament.
Further, while in many cases the presence of more minority M.P’s would provide
a method of screening government policies, which may in turn ensure that govern-
ments do not implement policies particularly offensive to minority communities, the
effectiveness of this is limited to the extent that governments remain free to disregard
the advice and opinions of minority members of their cabinet or caucus. Moreover,
parties in which minorities are not represented will not have the advantage of internal
consultations at the Parliamentary level, and thus, when such parties are in power, mi-
nority representation in other parties will be of little assistance.”
There is the potential for something deeply problematic in the election of repre-
sentatives who in the end can be outvoted or ignored on any given issue. Keith Bybee
noted that “progressives see the promise of equitable power sharing belied by the ele-
vation of token minority representatives: ” These considerations form the backbone of
this critique of guaranteed Aboriginal representation. That is, such representation may
not, in fact, achieve the beneficial policy outcomes that are supposed to follow para-
digmatically from increased representation. David Lublin wrote that the “descriptive
representation” of minorities in the United States has been improved through affirma-
tive districting. He contended, however, that this gain has come at the loss of “sub-
stantive representation”
in the form of policy choices preferred by African-
Americans.’3
Related to this argument is the concern that if Aboriginal people are guaranteed
representation, representatives in other districts may not feel obliged to take into ac-
count a minority’s political views. The New Zealand Royal Commission saw this as
” Supra note 48 at 74. See also the comments of Don Scott at the hearings of the Lortie Commis-
sion, as noted in Working Document, supra note 4 at 5.
See K Roach, “Chartering the Electoral Map into the Future” in Courtney, MacKinnon & Smith,
supra note 15, 200 at 213. See also P Aucoin & J. Smith, “Proportional Representation: Misrepre-
senting Equality” (1997) 18:9 Policy Options 30.
“E.g. the National Party in New Zealand has never elected an M.P. from a Maori constituency; see
Fleras, supra note 48 at 77.
Bybee, supra note 39 at 56.
See D.I. Lublin, “Race, Representation, and Redistricting” in Peterson, supra note 28, 111 at
121-22.
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the most significant problem with guaranteed Maori representation.” Lublin remarked
that critics of affirmative districting in the United States often complain that it leads to
the “ghettoization” or political marginalization of minorities.” The Committee for
Aboriginal Electoral Reform agreed that there was a danger that guaranteed repre-
sentation for Aboriginal people might give other M.P.’s an excuse to ignore Aborigi-
nal concerns.’
3. The Long-Term View
Although there is a certain surface logic to these concerns, it is far from clear that
they outweigh the significant benefits that would result from the election of more
Aboriginal M.P.’s. It is true that if Aboriginal people are not included on the general
electoral roll to the same extent, non-Aboriginal M.P.’s may ignore their concerns.
Aboriginal M.P.’s might be frequently outvoted on issues of concern to Aboriginal
people. Yet the same could be said of any group within Parliament, be it a regional
interest or party. Manitobans are represented in Parliament by fourteen M.P.’s. On any
given issue these M.P.’s can be easily outvoted. Nor are any other M.P’s from across
the country accountable to Manitobans. This hardly suggests, however, that Manito-
bans should be indifferent as to whether they continue to be represented in Parliament
by these fourteen M.P.’s. This is because on many policy issues, these M.P.’s can make
a difference. That a political minority’s M.P.’s may be outvoted on a given issue is not
a reason to oppose guaranteed representation. The likelihood remains that on many is-
sues increased representation can make a positive difference.
Furthermore, critics focussing on the indisputable fact that on any given issue
Aboriginal M.P.’s may be outvoted or ignored fail to consider the long-term benefits
of increased Aboriginal representation to the policy output of Parliament. This benefit
is that other M.P.’s would become more sensitive to the goals and aspirations of Abo-
riginal communities through contact and dialogue with their increased number of
Aboriginal colleagues. The Committee for Aboriginal Electoral Reform, composed of
five Aboriginal people who had served as M.P.’s, was confident that a larger body of
Aboriginal people in Parliament would sensitize other M.P.’s to the political beliefs
and goals of Aboriginal people.’ The committee stated that “Parliament is a place to
exchange information and ideas, to learn from one another.’
It further argued that
New Zealand, supra note 17 at 90-91.
sSupra note 83 at 111.
‘The Path to Electoral Equality”, supra note 6 at 263.
” lba at 271.
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“MPs from AEDs would help to educate non-Aboriginal MPs and the Canadian pub-
lic on issues of direct concern to Aboriginal people:”‘9
Experience suggests that this is the case. The Inuit argued before the Special Joint
Committee of the Senate and of the House of Commons on Senate Reform that their
ability to elect a member from the riding of Nunatsiaq has made parliamentarians
more aware of their community’s point of view. Their submission stated, “Inuit politi-
cal participation has had, and will continue to have, a useful function of two-way po-
litical accommodation.”
Political scientists have asserted that the presence of members of a particular
group in a parliamentary or legislative caucus can sensitize the majority of party
members to the viewpoint of that minority. Phillips has observed that feminist groups
have been represented at all levels of the Pard qu6b6cois, and this has ensured that the
party has remained sensitive to the concerns of women.’ In contrast, a lack of mem-
bers of a particular group can cause a party to act in ways that are insensitive to the
goals of that group. George Perlin has commented that “because of the weakness of
Quebec representation in the Conservative caucus [prior to 1984], more moderate an-
glophones at the elite level have been deprived of the contacts with French Canadians
which might have helped them acquire a better appreciation of French Canadian con-
cems.”‘ A lack of French-Canadian members has also made the NDP less responsive
to patterns of public opinion in Quebec.” All this suggests that the presence of mem-
bers of a community or group within the ranks of a political party can play a role in
educating other members of that party.
A number of theorists have suggested that this process of “legislative learning” is
the greatest advantage that can result from the increased representation of different
groups in Parliament. Bybee has argued against the position that politics is simply in-
strumental or “a passive medium configured to express political identities as they
naturally are'” Instead, he contended that a process of legislative learning can indeed
occur: “Legislatures can be a site of deliberation about the interests that all hold in
Ibid at 247.
Canada, Parliament, Special Joint Committee on Senate Reform, Minutes of Proceedings and
Evidence of the Special Joint Committee of the Senate and of the House of Commons on Senate Re-
form (25 October 1983) at 31:20.
“Supra note 16 at 134-35.
G.C. Perlin, The Tory Syndrome: Leadership Politics in the Progressive Conservative Party
(Montreal & Kingston: McGill-Queen’s University Press, 1980) at 191.
9’ See A. Whitehom, “The CCF-NDP and the End of the Broadbent Era” in H.G. Thorburn, ed.,
Party Politics in Canada, 6th ed. (Scarborough, Ont.: Prentice-Hall, 1991) 324 at 332-33.
‘ Bybee, supra note 39 at 148.
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common as well as the policies best suited to serve those interests:”, Phillips also ar-
gued that politics is about deliberation and that for deliberation to work, it is neces-
sary to have a certain threshold number of members from important groups in soci-
ety.’ Guaranteed representation for Aboriginal people will make it more likely that
they have sufficient numbers in Parliament to participate in the process of deliberation.
While it may take time, greater representation would ensure that in the longer term leg-
islative outcomes are more sensitive to Aboriginal points of view. The impact of these
benefits should not be underestimated. A greater influence over the policy process and
thus the allocation of public resources could make a significant improvement in the
lives of Aboriginal people in this country. Although it would be impossible to be cer-
tain that on any given issue Aboriginal M.P.’s could make a difference, the criticism of
lack of efficacy is not borne out when looking to the long-term impact of more Abo-
riginal M.P.’s.
B. Canada’s Individualist Political Culture
1. The Individualist Critique
Another argument levelled against guaranteed representation is based on an indi-
vidualist conception of our political culture. Opponents of group representation see
racial redistricting as perpetuating racial distinctions in society.” Sometimes the effort
to ensure special representation for ethnic or racial groups is compared to a form of
political apartheide Opponents of racial districting may argue that it leads to the “bal-
kanization” of politics.’ Many authors have argued, or noted arguments, that group
representation is incompatible with our political culture.'” Often, those who support
this position see group-based representation as incompatible with what is described as
“politics as usual”.”‘ Politics as usual, according to these critics, is pluralism, where
shifting coalitions of individuals throw their weight behind different policies, ensuring
that there is no permanent majority able to dominate the legislature. This position thus
!bhiL at 154.
Supra note 16 at 151.
Lublin, supra note 83 at 111.
See eg. New Zealand, supra note 17, where the royal commission critiqued this point of view at
94 by observing that there is no relation to apartheid, since the Maori candidates are then represented
in the general Parliament. But see text accompanying note 183.
See Phillips, supra note 16 at 22.
” See .g. Fleras, supra note 48 at 75. See also Gibbins, supra note 2 at 168; Swinton, supra note
15, arguing at 17 that the implementation of the Charter seems to have made our political culture
more individualist.
“W Bybee, supra note 39 at 64.
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views the opportunity for equal participation as the key to political equality.” Guar-
anteed, separate group representation is thus not a necessary condition for minority
representation.”3 Once able to participate, one will, depending upon the issue, be in
the majority at least as often as in the minority.
A related argument against group representation is that it is impossible to essen-
tialize individuals to one identity, be it race, gender, or language. Accordingly, indi-
viduals have many identities, and it is impossible to say which will be most politically
salient on any given issue.” At its root, this argument asks whether we can talk logi-
cally about “group” representation at all. If we are all composed of multiple identities,
how can we determine which of those identities represents the group to which we be-
long and which is most important for political representation?
This argument is related to debates over the meaning of representation and a cri-
tique of the idea of “mirror” representation. Tun Schouls has written that the idea of
mirror representation “presupposes that citizens can only be represented by those who
share the same perspective by virtue of sharing similar ethnic, religious, gender or
class experiences.” ‘ This contrasts with the more individualist conception that has
been called “procedural” or “virtual” representation, by which “representation derives
meaning from the procedural mechanisms by which representatives are elected ” ‘
Two arguments are generally made in favour of mirror representation. First, peo-
ple must share certain characteristics to understand fully the perspectives of others
‘ On this view, “no amount of thought or sympathy, no
with those characteristics.
matter how careful or honest, can jump the barriers of experience””t3 Second, even if
it were possible for some members of the majority to jump the barriers of experience,
they could not be trusted to do so to promote minority interests.” Schouls maintained
that “[t]he proposal for AEDs is a response to the lack of actual Aboriginal represen-
tatives within Parliament and is based upon the acceptance of the principle of mirror
representation'”‘0
‘,Ibid at 52.
103 Gibbins, supra note 2 at 170.
‘o, Swinton puts this claim eloquently, noting that despite feminist claims of an essential nature
shared by women, women and members of other groups will not agree on political solutions, also di-
viding on issues such as region, class, or occupation (supra note 15 at 31).
‘” Schouls, supra note 2 at 734.
106 Ibid
‘0’ See Multicultural Citizenship, supra note 25 at 138.
” Phillips, supra note 16 at 52.
‘0 See Multicultural Citizenship, supra note 25 at 139.
. Schouls, supra note 2 at 734.
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Many theorists have argued against mirror representation because it does not re-
flect what are seen to be our democratic traditions, or because it would be impossible
to realize.”‘ Phillips similarly rejected the idea that shared experience guarantees
shared ideas.”2 Kymlicka noted that within every group are subgroups, none of which,
on this theory, could truly understand or be trusted to advocate for the views of any
other subgroup’s members.”‘ As such, “[tiaken to its conclusion, the principle of mir-
ror representation seems to undermine the very possibility of representation itself.””‘
2. The Role of the Group in Canada’s Electoral Laws
A rejection of mirror representation, however, does not inexorably lead to the
commonly viewed alternative of “procedural representation”. The underlying as-
sumption of procedural representation is that democratic legitimacy comes from the
method by which representatives are chosen, that is, through a franchise of equal in-
dividuals. But representation in our political tradition has never taken the primacy of
the individual as its only starting poinL
Canada has a long history of considering the representation of groups in district-
ing. The most obvious example is that territorial constituencies are not drawn ran-
domly. Alan Stewart has contended that “[p]olitical representation in Anglo-Canadian
theory and practice has always been of communities–territorial units sharing, insofar
as possible, some unity of interest:”” He noted that the importance of community is
recognized in Canadian districting by districts’ not being based solely on population
size.”6 Indeed, many authors have commented on the differing population sizes be-
tween districts, and that this reflects a concern for community as opposed to individ-
ual representation.”” Swinton has observed that six of the ten provinces have more
seats than they would by a strict population standard.”‘
Canada’s electoral laws allow the consideration of communities of interest in re-
districting. For example, the Electoral Boundaries Readjustment Act states that the
‘ Swinton wrote that although she sees diversity in legislatures as a positive thing, fixed seats for
groups would ignore the complexity of individual experience and identity, emphasizing distance
rather than dialogue and consensus (supra note 15 at 31).
“2 Supra note 16 at 53.
” Multicultural Citizenship, supra note 25 at 140.
114 ibid.
“‘ A. Stewart, “Community of interest in Redistricting” in Canada, Royal Commission on Electoral
Reform and Party Fimancing, Drmving the Map: Equaliy and Efficacy of the Vote in Canadian Elec-
toral Boundary Refonn, ed. by D. Small (Toronto: Dundum Press, 1991) 117 at 117.
6!bid at 118.
“7 See eg. Roach, supra note 80; Swinton, supra note 15.
” Swinton, ibid. at 22.
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commissioners engaged in the drawing of boundaries may deviate from the equal
population standard where necessary or desirable “in order to respect the community
of interest or community of identity in or the historical pattern of an electoral district
in the province””‘ Swinton pointed out that this legislation also directs the commis-
sioners to consider the needs of northern or sparsely populated rural areas when
drawing boundaries.'” Kymlicka indicated that there are many examples of boundary
commissions’ “drawing boundaries to correspond with ‘communities of interest’,
such as farmers, workers, immigrant groups, and religious sects” 2 Since districting
continues to take into account group interests under the label of “communities of in-
terest”, it is incorrect to suggest that procedural representation has ever been the Ca-
nadian reality or ideal. Instead, what we have is procedural representation tempered
by mirror considerations.”
3. The Normative Advantages of Tempered Individualism
Many theorists of representation defend this tempered view as preferable. It is
important to have representatives of different groups in Parliament. Procedural repre-
sentation can theoretically work to the extent that candidates run on a platform that is
clearly set out. Voters can determine which candidate best represents their political
perspective, and can thus decide who to vote for. If the candidate does not follow
through on these stated promises, individuals can vote him or her out of office. Phil-
lips noted, however, that on issues that are not campaigned upon-that were not an-
ticipated or discussed during an election-the representative has no choice but to fall
back on his or her own experiences and prejudices.'” According to Phillips, ideas only
take one so far. At a certain point there is a need for those who hold different world
views due to their different life experiences to be present in the legislature.’24 To make
her point that groups do matter, she remarked that “in querying the notion that only
the members of particular disadvantaged groups can understand or represent their in-
terests [one] might usefully turn this question round and ask whether such under-
standing is possible without the presence of any members of the disadvantaged
groups.”” Bernard Grofman has maintained that “the proper use of affirmative ger-
rymandering is to guarantee that important groups in the population will not be sub-
19 R.S.C. 1985, c. E-3, s. 15(2)(a), as am. by R.S.C. 1985 (2d Supp.), c. 6, s. 2(2) [hereinafter
EBRA].
‘” Supra note 15 at 19.
.. Multicultural Citizenship, supra note 25 at 135.
‘ Swinton, supra note 15 at 19.
‘ Supra note 16 at 43.
.2 Ibid at 156-57.
“‘ Ibid. at 89, n. 12.
2001]
T KNIGHT- ELECTORAL JUSTICE FOR ABORIGINAL PEOPLE
1087
stantially impaired in their ability to elect representatives of their choice.”‘” Phillips
noted that arguments for group representation can be seen as a logical extension of the
classical liberal view of procedural representation: “If no one is to be excluded by
virtue of gender, ethnicity, or language, and no one group is to be privileged over an-
other, then certain guarantees have to be set in place to ensure that the politics is in-
deed evenhanded.”” Kymlicka observed that few proponents of group representation
argue for legislatures that mirror the community. Group representation is instead de-
fended by considering the context of a certain group within a particular situation.” He
stated that “[t]he point here is not that the legislature should mirror society, but rather
that the historical domination of some groups by other groups has left a trail of barri-
ers and prejudices that makes it difficult for historically disadvantaged groups to par-
ticipate effectively in the political process.”‘” These theorists thus seek to balance the
need of certain groups for representation with the knowledge that at some point mir-
ror representation is impossible to achieve.
4. Aboriginal People as a Group for Representation
It may legitimately be asked whether Aboriginal people in Canada constitute a
group warranting separate representation. Do Aboriginal people have a sufficient po-
litical coherence to be considered a “group” that can be accorded separate representa-
tion? Schouls raised this concern, noting that if AEDs were to adhere to the generally
accepted representation by population rule of staying within plus/minus 25 percent of
the provincial quotient, this would “[result] in too few AEDs to represent adequately
the plurality of differences internal to the Aboriginal population itself.””‘ He argued
that the sheer “diversity of Aboriginal differences simply cannot be represented ade-
quately if AEDs are constrained by the principle of representation in proportion to
population.””‘ The Committee for Aboriginal Electoral Reform acknowledged this
problem. On the Prairies Metis and Indian leaders sought guarantees of separate seats,
presumably because of the divergent interests of these peoples.” In New Brunswick
one chief cast doubt on the idea that a single AED for the entire Atlantic region would
be sufficient. “3 Given the cleavages between different bands and nations, between
status and non-status Indians, and between Indian, Inuit, and Metis, any proposal that
2 B. Grofinan, “Should Representatives Be 1ypical of Their ConstituentsT’ in B. Grofrnan et al.,
eds., Representation andRedistricting Issues (Lexington, Mass.: Lexington Books, 19S2) 97 at 98.
‘2 Supra note 16 at 121.
‘2 Multicultural Citizenship, supra note 25 at 141.
1291bid.
’29Schouls, supra note 2 at 742.
ibid at 743. See also Gibbins, supra note 2 at 164.
“The Path to Electoral Equality”, supra note 6 at 259.
13 !b&L
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seeks to provide a proportionate number of guaranteed Aboriginal seats will end up
subsuming a number of salient political differences within any one district.
It can, of course, be argued that this could be remedied by allowing for more seats
through permitting greater deviations from the provincial quotient.” Yet even with a
greater number of seats, AEDs must necessarily subsume a number of important dif-
ferences. Kymlicka suggested that this is the case with all proposals for minority rep-
resentation. He remarked that in Britain “the category of ‘black’ people obscures deep
divisions between the Asian and Afro-Caribbean communities, each of which in turn
comprises a wide variety of ethnic groups.””
in
in Canada-warrants
the United States, Aboriginal origin
Of course, as has been noted, the product of representational democracy is always
the subsuming of many political identities under a broader, usually territorial, identity.
As such, it is not as if the project of guaranteeing minority representation is different
in kind from what already occurs. The question here is why a particular identity-
special
race
representation. What is it about these political identities that makes them sufficiently
salient that they ought to be guaranteed a measure of representation? Kymlicka likely
provided part of the answer when he observed that “the problem of identifying
disadvantaged groups is not unique to issues of political representation, and it may not
be avoidable in a country committed to redressing injustice “‘ The histories of racism
and discrimination faced by Aboriginal people in Canada and African-Americans in
the U.S. have created politically salient identities centred on these characteristics, and
the same factors that create the political identity often prevent that identity from finding
proportionate expression in the present system.
An immense amount of evidence from the United States shows that race is a sali-
ent and coherent category of political identity. In Canada, in contrast, little empirical
work has been done to determine the salience of Aboriginal identity in defining politi-
cal ideas. Nor has a great deal of empirical work been done that would allow the easy
assertion that Aboriginal people have a sufficiently coherent political identity to justify
considering them as a “group” worthy of special political representation. The evidence
that does exist in Canada, however, combined with the evidence of the importance of
race in the United States, suggests that groups that have been the subject of systemic ra-
cial discrimination have legitimate claims to separate representation.
Bybee emphasized that those who argue for guaranteed representation for mi-
norities in the United States rely on the “long history of racial discrimination in the
United States-a history which they claim has created a cluster of minority group
,Gibbins, supra note 2, noted this possibility at 164.
“‘ Multicultural Citizenship, supra note 25 at 145.
“6 Ibid. at 146.
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T KNIGHT- ELECTORAL JUSTICE FOR ABORIGINAL PEOPLE
1089
identities unshared by the white majority.”” Phillips maintained that the best evidence
that African-Americans are not electing the candidates they want can be seen from
studies of racially polarized voting.” There are many examples of racially polarized
voting in the U.S.’ Without a doubt the history of discrimination in the U.S. has
given political significance to racial divisions in that country, and thus provides a
powerful justification for efforts to ensure greater minority representation in Con-
gress.
Can there be a similar justification for guaranteed representation in Canada? Cer-
tainly Aboriginal people in this country have faced a history of discrimination similar
in its invidiousness to that faced by African-Americans. Indeed, at one level, it is ar-
guable that Aboriginal people in Canada have a stronger claim to separate representa-
tion than African-Americans, given that through the Indian Act’ and treaty relation-
ships they have a unique relationship with the Canadian state, and may also claim a
right to self-government.”‘ These factors provide reasons to consider Aboriginal iden-
tity as possessing a degree of political coherence.
The coherence of Aboriginal political identity can also be seen from a considera-
tion of Aboriginal and non-Aboriginal voting patterns, and a comparison with the re-
suilts of American studies. It is extremely rare for an Aboriginal person to be elected
in a riding where there is a non-Aboriginal majority. At the same time, in recent elec-
tions at least, the only two ridings with Aboriginal majorities have consistently elected
Aboriginal M.P.’s. Although it is on a smaller scale, this evidence parallels that seen in
the United States. Some evidence on voter turnout also suggests that Aboriginal iden-
tity is a politically salient factor. Gibbins noted that between the 1984 and 1988 elec-
tions, turnout more than tripled on two Alberta reserves. The reason for this, he as-
serted, was the nomination by the Progressive Conservatives of Vilton Littlechild, a
‘” Bybee, supra note 39 at 66. See L. Guinier, “[E]racing Democracy- The Voting Rights Cases”
(1994) 108 Harv. L. Rev. 109.
3 Supra note 16 at 88.
“‘ Lublin noted that in the history of that country, only six African-American members of Congress
have been elected from districts that do not have an African-American or African-American/Latino
majority (supra note 83 at 112). He also noted other evidence indicating racially polarized voting in
the United States: “[E]mpirical evidence indicates that the racial composition of the electorate over-
whelms all other factors in determining the race of a district’s representative. The protection of major-
ity black and majority-minority districts remains vital to the election of more than token numbers of
blacks to Congress” (ibihL at 112-13).
” RS.C. 1985, c. 1-5.
‘ 4
‘”See P. Macklem, “Normative Dimensions of the Right of Aboriginal Self-Government” in Can-
ada, Royal Commission on Aboriginal Peoples, Aboriginal Self-Gorernment: Legal and Constitu-
tional Issues (Ottawa: Canada Communication Group, 1995) 1 at 34-35. See also Multicultural Citi-
zenship, supra note 25 at 142.
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Cree, in the riding of Wetaskiwin.”2 All this indicates that Aboriginal people respond
to Aboriginal candidates and feel that they share with them a politically salient iden-
tity. As well, evidence indicates that Aboriginal people themselves feel that there is a
coherent, distinct identity to be protected through the election of Aboriginal candi-
dates. In hearings before the Lortie Commission, the New Brunswick Aboriginal
People’s Council stated that Aboriginal turnout has traditionally been low because, for
many reasons, native people feel that the process is not their process.”‘ A group of
twenty-three Manitoba Cree bands asserted, “We need members of Parliament who
do not have to be taught who we are, what we want, and why we are important to this
country?”” The Committee for Aboriginal Electoral Reform argued that M.P.’s from
AEDs would be beneficial because they could pursue claims of interest to Aboriginal
people “without fear of alienating non-Aboriginal constituents, a problem that some-
times arises for Aboriginal people elected under the current system.”‘
To Canadians accustomed to thinking of distinctions based on race as troubling,
the claim that Aboriginal people share a political identity coherent enough to ground
separate representation may seem problematic. This political identity, however, comes
from a history of systemic discrimination and a unique relationship to the Canadian
state. It is reflected in the voting patterns of Aboriginal people, and it has been identi-
fied by Aboriginal groups and individuals in claims for separate representation in the
past. For those who are still concerned about “political apartheid”, comfort can be
taken from the choice of participation that would belong to Aboriginal people. AEDs
thus give even less cause for concern than affirmative districting, since under the for-
mer individual Aboriginal voters choose their most salient political identity and reg-
ister accordingly, while under the latter voters cannot choose whether to participate in
a “majority” or “minority” district.
5. Setting a Precedent for Other Groups
A final aspect of this critique is the claim that if representation is guaranteed for
one group, it should also be guaranteed for other groups. Swinton stressed that the
claim for Aboriginal seats “inevitably generates echoes from other groups for
equivalent rights.” 46 Gibbins also saw this as a concern. As the Charter recognizes a
number of groups, guaranteed representation for Aboriginal people would lead to a
requirement for similar representation for these other groups.’47 Kymlicka noted Iris
4’2 Gibbins, supra note 2 at 160.
“‘Reforming Electoral Democracy Vol. 4, supra note 6 at 47.
‘” Quoted in “Aboriginal Constitutional and Electoral Reform”, supra note 2 at 40.
“41 “The Path to Electoral Equality”, supra note 6 at 247.
,46 Supra note 15 at 30 ×..
“7 Gibbins, supra note 2 at 168.
20011
T KNIGHT– ELECTORAL JUSTICE FOR ABORIGINAL PEOPLE
1091
Young’s suggestion that guaranteed group representation be restricted to oppressed
groups. He indicated, however, that Young’s “list of ‘oppressed groups’ in the United
States would seem to include 80 per cent of the population:”” Thus, there is the con-
cern that recognizing guaranteed representation would inevitably lead to claims for
representation from innumerable other groups.
At one level this critique appears to hold some truth. If separate representation is
justified on the basis of systemic disadvantage, there are likely a number of groups-
women, visible minorities, and political minoities-who could claim a right to sepa-
rate representation. One solution is that if all these groups need special representation
to be proportionately present within our democratic institutions because of the result
of systemic disadvantage, perhaps there should be provisions for separate representa-
tion. Practically, of course, such a proposition is problematic and would meet stiff re-
sistance.
Aboriginal people, however, present a unique case for guaranteed representation.
Several authors have drawn a distinction between Aboriginal people and other groups
on the grounds that while others have joined this political order voluntarily through
immigration, Aboriginal people are first peoples and thus represent an entirely differ-
ent case. ‘ Patrick Macklem has argued that there are a number of factors that speak to
Aboriginal difference in the constitutional order which suggest that according Abo-
riginal peoples rights not accorded to ethnic minorities, for example, would not be
normatively or constitutionally inconsistent. ” He noted that Aboriginal people are
prior occupants of the land, they exercised sovereignty over the territory before the
exertion of European sovereignty, and they are in treaty relationships with the federal
government-all of which distinguish them from minority cultures.”‘ Aboriginal peo-
ples are not in the same situation as minority cultures or other groups that have arrived
in Canada as part of, or since, European colonization.
6. Conclusion
The argument that guaranteed representation for Aboriginal people would be in-
consistent with our individualist political culture fails to recognize that Canada’s dis-
tricting tradition is not one of uncompromised individualism. Instead, districting in
Canada has always taken into account groups and communities of interest. Guaran-
teed representation for Aboriginal people would thus be entirely consistent with Can-
,4’Multicultural Citizenship, supra note 25 at 145.
, See e-g. Fleras, supra note 48 at 90; Macklein, supra note 141 at 19; NV. Kymlicka, Liberalism,
Community, and Culture (New York: Oxford University Press, 1989).
“‘Macklen, ibid.
‘!bid at 35.
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ada’s political tradition. Nor can it be said that guaranteed representation for Aborigi-
nal people would inevitably open the floodgates to similar claims from other disad-
vantaged groups. As the original inhabitants of this land, First Nations have a unique
claim to separate representation in Parliament. This claim is bolstered by the unique
relationship of First Nations to the federal government, their status as identifiable na-
tions or peoples, and their apparent political coherence. These factors are sufficient to
differentiate the claim of Aboriginal peoples from those of other groups.
C. The Incompatibility of Guaranteed Representation and Self-
Government
Many Aboriginal people argue that even if there is a normative justification for
guaranteed Aboriginal representation, it is not a goal worth achieving. Some maintain
that it is inconsistent with self-government, and should be resisted. Yet while the ex-
tension of representation in Parliament is a means of integrating Aboriginal people
into a broader political community, it need not be incompatible with self-government.
Such integration is incompatible with self-government akin to independence, but not
with self-government as it is more commonly conceived and by which Aboriginal
peoples would maintain relationships with the Canadian state. Indeed, it can be ar-
gued that representation in Parliament is a useful and necessary complement to this
latter form of self-government.
Part of the negative reception that AEDs have received in some quarters likely
relates to legitimate concerns Aboriginal people have about the central institutions of
Canadian democracy. Many Aboriginal people resisted the extension of the franchise
in 1960 as an attack on their treaty rights.’ 2 The Committee for Aboriginal Electoral
Reform commented that the historical failure of the federal government to accommo-
date the goals of Aboriginal people has “had an adverse impact on Aboriginal per-
ceptions of Parliament and the value of participating within it'”” Further, the Royal
Commission on Aboriginal Peoples denounced guaranteed representation because of
this lack of legitimacy of Canadian political institutions amongst Aboriginal peoples.'”
Many Aboriginal people do not participate in elections precisely because they do
not recognize the authority of the Canadian state, and it is felt that exercising the fran-
chise would constitute such a recognition. This argument was used against the pro-
posal for guaranteed representation in New Brunswick. In rejecting the proposal,
Darrell Paul, the executive director of the Union of New Brunswick Indians, stated,
“‘ “Aboriginal Constitutional and Electoral Reform”, supra note 2 at 46. See also “The Path to
Electoral Equality”, supra note 6 at 241.
“The Path to Electoral Equality”, ibid at 242.
” RCAP Report, supra note 5 at 374.
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T KNIGHT– ELECTORAL JUSTICE FOR ABORIGINAL PEOPLE
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“What it boils down to is we are saying, we are a nation and, by becoming part of
someone else’s system, we are going to give that up:”‘ Thus, it is argued that working
towards self-government cannot be made consistent with guaranteed representation
within the Canadian state.
It is unnecessary, however, to see arguments for guaranteed representation as in-
compatible with most claims for self-government. The Maori people see guaranteed
representation as being in accord vith their goal of political autonomy.”‘ Advocates
for AEDs in the 1980s certainly felt that working simultaneously towards both these
goals was nQt inconsistent. Before the 1983 constitutional conference, the Native
Council of Canada stressed that guaranteed representation in the House of Commons
could be seen as an extension of self-government and not an impediment to it.”‘
Similarly, in consultations before the Committee for Aboriginal Electoral Reform,
some Aboriginal leaders claimed that guaranteed representation would complement
self-government. ” The committee itself took this position, arguing that Aboriginal
M.P.’s would be in a position to push for greater Aboriginal self-government.”‘
As Milen noted, though, the committee’s position that Aboriginal peoples are
citizens of this country is not universally held, and representation in Parliament may
be seen as inconsistent with nation-to-nation relations.”w For better or worse, however,
Aboriginal people do have the right to participate in Canadian elections, and many
take advantage of that right.” Given this situation, it may be argued that a nation-to-
nation conception is better preserved through the use of guaranteed Aboriginal repre-
sentation than through an undifferentiated universal franchise. Indeed, Schouls stated
that advocates of guaranteed Aboriginal representation see it as a way of ensuring
continued differentiated citizenship. He drew attention to a concern that the undiffer-
entiated universal citizenship of procedural representation could potentially lead to as-
similation. In contrast, “AEDs are offered as an electoral device to draw the experi-
ence of Aboriginal differentiated citizenship into full participatory status in Canadian
state institutions”” In this sense guaranteed representation for Aboriginal people,
through emphasizing political difference, may in fact complement self-government.
Indeed, the Committee for Aboriginal Electoral Reform made an analogy to the
European Union.” Although the circumstances in which the EU was created are ob-
“Chiefs Reject Offer”, supra note 1.
’55Sorrenson, supra note 27 at B-61.
“‘Aboriginal Constitutional and Electoral Reform”, supra note 2 at 19.
‘ “The Path to Electoral Equality”, supra note 6 at 255.
Ibid. at 256.
“”‘Aboriginal Constitutional and Electoral Reform”, supra note 2 at 47.
161 See Gibbins, supra note 2 at 160.
“‘Schouls, supra note 2 at 735.
“The Path to Electoral Equality”, supra note 6 at 255.
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viously different from the emergence of self-governing Aboriginal nations within
Canada, the importance of this example is that it demonstrates that the surrender of
some sovereignty to a supranational body does not necessitate the surrender of self-
government. Although France accepts the authority of the EU to legislate in some ar-
eas, and French citizens elect members to the European Parliament, one could hardly
argue that France is not self-governing.
Further support for guaranteed representation stems from the likelihood that it
would still be necessary once self-government is achieved. Most conceptions of Abo-
riginal self-government do not contemplate full independence from.the Canadian
state. Schouls observed that “numerous Aboriginal nations remain content to have the
federal government involved in the.provision of some services:”‘ Macklem also noted
that regardless of what one thinks of the moral justification of the initial assertion of
Canadian sovereignty, important Aboriginal interests have developed out of it that
may require protection.”
Assuming that the most likely form of self-government is one where Aboriginal
governments occupy something of a third level of government, representation within
Parliament may in fact be increasingly necessary. The powers that the federal gov-
ernment exercises under the Constitution Act, 1867’
suggest that it is important for
Aboriginal people to be involved in the institution in which their “particular legal and
legislative interests are addressed.”‘” Further, the history of Canadian federalism indi-
cates that we should not be confident that under self-government there will not be dis-
putes about jurisdiction between an Aboriginal level of government and the provincial
and federal levels.'”6 This suggests that even following the achievement of self-
government there will be a number of pragmatic reasons for Aboriginal people to
continue to participate in Parliament and provincial legislatures.
There are still other reasons that representation in Parliament will continue to be
valuable following the achievement of self-government. Aboriginal people living off-
reserve may be better able to access their M.P.’s than a distant band council that may
have little ability to help its members who have left for urban centres.” This will be-
come increasingly important as more Aboriginal people move to cities. As well, Abo-
riginal people have perspectives on issues such as free trade, immigration, and envi-
ronmental policy that may affect them as individuals, but not be within the control of
‘ 4 Schouls, supra note 2 at 740-41.
‘6 Macklem, supra note 141 at 16.
66 (U.K.), 30 & 31 Vict., c. 3, s. 91(24), reprinted in R.S.C. 1985, App. HI, No. 5.
167 Schouls, supra note 2 at 741.
”
3 See ibid. at 742. See also Gibbins, supra note 2 at 181.
“69 “Aboriginal Constitutional and’Electoral Reform”, supra note 2 at 47.
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T KNIGHT- ELECTORAL JUSTICE FOR ABORIGINAL PEOPLE
1095
an Aboriginal government” Indeed, it must be noted that as long as there is some in-
terdependence between the Canadian government and Aboriginal governments, Abo-
riginal people will have an interest in determining the allocation of resources within
the Canadian state. It would be a rare federal policy that did not have an impact, di-
rectly or indirectly, on an Aboriginal government.
The suggestion that Aboriginal people should have guaranteed representation in a
situation of self-government is disputed by some theorists who argue that the estab-
lishment of Aboriginal self-government should be accompanied by a reduction in rep-
resentation in the central institutions of the Canadian state. Kymlicka, for example,
has maintained that “the logical consequence of self-government is reduced repre-
sentation, not increased representation. The right to self-government is a right against
the authority of the federal government, not a right to share in the exercise of that
authority.”
While this argument initially seems to make sense on a theoretical level, it is not
consistent with the reality of Canadian federalism. Depending on where one lives, one
has a different relationship with the federal government from individuals in other
provinces or territories. There is no suggestion, however, that simply because one is
not from the Northwest Territories or the Yukon one’s representative should not have
a say in government policy regarding these territories. Nor do we feel that when pow-
ers over training or immigration are shifted to a province from the federal government
that that province’s M.P.’s should no longer have a say over federal policies in these
areas. It is true that Kymlicka’s argument is only that this should be the case.'” Even
this is doubtful, however, given that we continue to share a general political commu-
nity, and we all have a stake in the choices that community makes. This is so even if
those decisions do not directly impact upon us.
Guaranteed representation in Parliament can thus be defended as being compati-
ble with the assertion of self-government by Aboriginal peoples. Indeed, by ensuring
separate representation within the broader community’s central political institution,
AEDs support self-government Guaranteed representation can also be defended as
being beneficial to Aboriginal people even after self-government is achieved. More-
over, the argument that the pursuit of self-government ought to detract from participa-
tion in the community’s political institutions cannot be sustained. It does not reflect
the reality of contemporary Canadian federalism, and would seem to threaten the ex-
istence of a shared political community. The point of guaranteed representation for
” Schouls, supra note 2 at 747.
… Multicultural Citizenship, supra note 25 at 143.
2./bill
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Aboriginal people would be to strengthen that broader community, while at the same
time re-enforcing self-government.
IV. The Constitutionality of Guaranteed Aboriginal Representation
Given the individualist thrust of the Charter, it may be appropriate to ask whether
guaranteed Aboriginal representation through AEDs would be constitutional. At least
one political scientist has suggested that ethnically defined constituencies might not
be valid under the Charter.'” Certainly in the United States the constitutionality of af-
firmative districting has been cast into doubt. In Canada, however, there is reason to
believe that a challenge to AEDs of the general sort proposed by the Lortie Commis-
sion would not be successful.'” Neither the right to vote” nor the right to equdity’ ‘
provides a fruitful ground for a Charter challenge to guaranteed Aboriginal represen-
tation. This section will consider the American jurisprudence that has found affirma-
tive districting to be unconstitutional. It will then argue that similar challenges to
AEDs in Canada would not be successful, due to the differences in structure between
the Charter and the U.S. Constitution, as well as in jurisprudential development north of
the border.
A. Affirmative Districting
American courts have thoroughly canvassed the constitutionality of districts
drawn ‘to improve the representation of various minorities. Although one must always
keep in mind the different legal and political settings of Canada and the United States,
the American jurisprudence provides a starting point for analyzing the constitutional-
ity of AEDs such as those proposed by the Lortie Commission. For instance, in other
cases where the constitutionality of electoral laws has been examined, Canadian
.See Gibbins, supra note 2 at 168.
17′ It should be noted that I do not seek to restrict this discussion to the specific proposal made by
the Lortie Commission. My point is that a proposal with the same general framework-voluntary
participation, with districts not overlapping provinces-would pass constitutional scrutiny.
’75Charter, supra note 3, s. 3.
7The Charter, ibid., states:
15. (1) Every individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin, col-
our, religion, sex, age or mental or physical disability.
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courts have considered the U.S. experience, if only to illustrate why the Canadian
situation is different.'”
The constitutionality of affirmative districting was first tested in the 1977 case of
United Jewish Organizations of Williainsburgh v. Carey, in which a New York elec-
toral map was challenged as violating the Equal Protection clause.” This relatively
early case suggested that the U.S. Supreme Court would be deferential to the right of
the legislature to seek to improve the representational position of minorities through
affirmative districting. The New York legislature had drawn a district line to ensure
that African-Americans made up the substantial majority of two state Senate dis-
tricts.” The law was challenged by a group of Hasidic Jews whose neighbourhood
had been split by the new district. White J., writing for the majority, found that racial
bloc voting existed, and that there was nothing in the constitution which prevented the
legislature from recognizing this fact in its districting as a way to combat past dis-
crimination.'” The seeds of later decisions were, however, sown in the dissent, in
which the judges suggested that allowing such a policy violated the goals of Amer-
ica’s “melting pot’ and thus the guarantee of equal protection in the Fourteenth
Amendment.’8
The more recent case of Shaw v. Reno” demonstrated that in little over a decade
the Supreme Court’s attitude to such legislative efforts had changed considerably. This
case concerned a challenge by voters to the creation of two oddly shaped electoral
districts drawn by the electoral boundary commission of North Carolina. These dis-
tricts were created to ensure that the widely dispersed African-American minority
constituted a majority in two congressional seats. In finding the districting unconsti-
tutional, the majority of the court formulated a test for constitutionally valid redis-
tricting that severely restricted the ability of legislatures to engage in this sort of ac-
tion. O’Connor J., writing for the majority, held that “[a] reapportionment plan that
includes in one district individuals … who may have little in common with one an-
other but the color of their skin, bears an uncomfortable resemblance to political
apartheid:”” The court held that a district could be challenged under the equality pro-
‘” See eg. Reference Re Proi Electoral Boundaries (Sas.), [1991]2 S.C.R. 158, (sub nom. Ref. re:
Electoral Boundaries Coimnission Act, ss. 14, 20 (Sask)) 81 D.LR. (4th) 16 [hereinafter Saskatelze-
wan Reference cited to S.C.R]. See also Somerville v. Canada (A.G.) (1996), 184 A.R. 241, 136
D.LR. (4th) 205 (CA).
‘7 430 U.S. 144, 97 S. Ct. 996 (1977) [hereinafter UJO cited to U.S.]. At issue was U.S. Const.
amend. XIV.
‘ UJO, ibid at 151-52.
‘kmid at 165-68.
“mi at 187.
” 509 U.S. 630 at 647, 113 S. Ct. 2816 (1993) [hereinafter Shaw cited to U.S.].
‘3Ibid at 647.
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visions of the Fourteenth Amendment if it “rationally cannot be understood as any-
thing other than an effort to separate voters into different districts on the basis of race,
and that the separation lacks sufficient justification””
In this situation the districting
scheme must be subjected to the same strict scrutiny as any other law that divided
people on the basis of race.” The court distinguished UJO on the basis that there the
district had not been bizarrely shaped, as was the case in Shaw. O’Connor J. stated
that the facts in UJO “would not have supported such a claim … precisely because
[the statute in question] adhered to traditional districting principles [such as compact-
ness and population equality].*”” Thus, the majority held that boundaries would vio-
late the Fourteenth Amendment where their bizarre shape suggested that racial con-
siderations had been predominant.
The difficulty that Shaw presents to legislators is that it does not permit them to
design minority-majority districts where the minority population is not geographically
concentrated. O’Connor J. stated that compactness and population equality are tradi-
tional districting considerations, and that UJO only suggests that it is acceptable to
create majority-minority districts where the “residential patterns” of a sufficiently
numerous minority so permit.'” This, however, does little to assist in a situation such
as that in North Carolina, where the 20 percent African-American population was de-
scribed by the Court as “dispersed”.’8
Miller v. Johnson'” brings into doubt the possibility that even geographically
compact affirmative gerrymanders are permissible under the Fourteenth Amendment.
In Miller the government accepted that a particular district had been drawn so as to
create an affirmative gerrymander, but argued that it was necessary under the Shaw
test to show that the district’s shape “is so bizarre that it is unexplainable other than on
the basis of race.”‘” The U.S. Supreme Court, however, found that the bizarreness of
the shape was merely relevant as evidence “that race for its own sake, and not other
districting principles, was the legislature’s dominant and controlling rationale in
drawing its district lines”‘ 9’ Kennedy J., writing for the majority, held that to success-
fully challenge affirmative districting a plaintiff must demonstrate “that race was the
predominant factor motivating the legislature’s decision to place a significant number
of voters within or without a particular district”” To do this, a plaintiff must show
‘” Ibid. at 649.
‘”Ibid at 644.
6Ibid. at 651.
‘”Ibid. at 651-52.
9 8 Ibid. at 634.
‘
” 515 U.S. 900, 115 S. Ct. 2475 (1995) [hereinafter Miller cited to U.S.].
’90 Ibid. at 910.
“‘ Ibid. at 913.
‘9Ibid. at 916.
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that the legislature placed considerations of race above “traditional race-neutral dis-
tricting principles, including but not limited to compactness, contiguity, and respect
for political subdivisions or communities defined by actual shared interests:”- Thus,
Kennedy J. found that a state was permitted to consider race if it utilized these tradi-
tional districting principles, but it was not permitted to subordinate the traditional
factors to racial considerations.”
Together Shan and Miller seem to put an end to the practice of affirmative dis-
tricting. In a cruel piece of historical irony, the U.S. Supreme Court has essentially
suggested that the only community of interest or identity that states cannot make pri-
mary in districting is race. The court understands traditional principles of districting to
be “racially neutral”, and suggests race is not the basis of “actual” shared political
identities. A reading of the history of American voting rights legislation and litigation,
however, shows that this is simply not the case.
B. Aboriginal Electoral Districts
What is important for present purposes is whether Canadian courts would use
similar reasoning to find AEDs to be unconstitutional. When special electoral districts
were proposed for New Brunswick’s Aboriginal people, Julius Grey, a law professor
at McGill University, questioned whether the scheme would be constitutional under
section 15 of the Charter.”
1. Section 15
Unlike in the United States, where challenges have been brought by voters who
have been included in majority-minority constituencies against their will, a challenge
in Canada would be brought by a plaintiff from outside the constituency, since regis-
tration to vote in an AED would be voluntary. Two sorts of plaintiffs can be imagined:
members of the majority group who would challenge the constitutionality of AEDs on
the ground that they created a distinction between Aboriginal and non-Aboriginal
voters on the basis of race, and members of other disadvantaged groups who might
argue that legislation creating AEDs is unconstitutionally underinclusive.
The Supreme Court of Canada has restated and elaborated upon the test for de-
termining whether a distinction constitutes discrimination for the purposes of section
193 ibid
194 Ibid
“9′ See G. Hamilton, “N.B. Offers Aboriginals Guaranteed Seats: E.xplrt Questions Whether Pre-
mier’s Proposal Is Legar’ National Post (26 January 1999) Al.
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15.” Writing for the Court Iacobucci J. held that in determining whether a particular
provision was discriminatory, a court must look to the context in which the distinction
is made and whether the differential treatment demeans the dignity of the claimant?
Thus, in seeking to determine whether AEDs could be found unconstitutional under
section 15, the perspective of potential plaintiffs must be considered in light of the
contextual factors relevant to their claim. When lacobucci J.’s four contextual factors
are considered,”‘ it can be seen that neither a challenge from a majority group plain-
tiff, nor one by a member of a disadvantaged group, would succeed in overturning
carefully crafted legislation creating AEDs.
The main barrier to a challenge on the grounds of discrimination by a member of
the majority group would be the first contextual factor, whether the claimant group
suffers from “pre-existing disadvantage, vulnerability, stereotyping, or prejudice”.”
Iacobucci J.’s emphasis clearly established that the purpose of section 15 is to remedy
pre-existing disadvantage, and not to roll back the legislative gains of the very people
that section 15 was intended to benefit. Although not determinative, his language sug-
gests that the Court will be hesitant to allow such challenges to legislation meant to
benefit those who suffer from pre-existing disadvantage. The difficulty of a challenge to
AEDs by a member of the majority group is reinforced by Iacobucci J.’s third contextual
factor, whether the law in question seeks to ameliorate the situation of disadvantaged
persons in society.’
A successful challenge by a member of the majority group to AEDs would not be
in accordance with the existing equality jurisprudence, or the way that the Court has
interpreted the Charter in general,=” as it would require the Court to use section 15 to
reverse a legislative gain achieved by a disadvantaged group because of a minimal
burden placed by that gain on members of the majority. The Court has made it clear
that section 15 is meant to enforce substantive equality.’ This appears to be exactly
what AEDs seek to achieve. AEDs would be designed to deal with the problem of the
inequality in representation suffered by geographically dispersed Aboriginal people in
Parliament by treating them differently from the rest of the electorate.
‘9 See Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, 170 D.L.R.
(4th) 1 [hereinafter Law].
“‘Ibid. at para. 75.
“‘See ibid. at paras. 62ff.
“‘Ibid at para. 63.
” Ibid at para. 72.
2
See especially R. v. Edwards Books, [1986] 2 S.C.R. 713, 35 D.L.R. (4th) 1.
See e.g. Lovelace v. Ontario, [2000] 1 S.C.R. 950, 188 D.L.R. (4th) 193 [hereinafter Lovelace
(S.C.C.)].
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A further possible challenge to AEDs might come from others in society who
also suffer pre-existing disadvantage, on the basis that their omission from the bene-
fits of the law detract from their human dignity. Such potential plaintiffs include not
only minority groups and others disadvantaged by the existing electoral system, but
also Aboriginal people who, because of the particular design of a system of AEDs,
may not benefit from its operation. Iacobucci J. acknowledged this possibility in Law,
stating he would not foreclose the possibility that someone could be discriminated
against by laws seeking to ameliorate the situation of others, necessitating justification
‘ The object of AEDs would
under section 1 or the operation of subsection 15(2).
clearly be to ameliorate the disadvantage imposed upon Aboriginal people by the
electoral system, and thus even if their creation were found to violate subsection
15(1), they would seem on their face to fall within the anbit of subsection 15(2). De-
spite Iacobucci J.’s express reference to this provision in Law, however, Lovelace
(S.C.C.) suggests that the analysis of whether the equality rights of other disadvan-
taged groups are adversely affected by AEDs would occur within the framework of
the test under subsection 15(1).2′
In Lovelace the plaintiffs were Metis and non-status Indians who sought a decla-
ration that Ontario’s plan to distribute profits from a casino project among the prov-
ince’s Indian Bands violated their section 15 rights because they did not benefit from
the plan as well. The motions judge found that the project violated section 15; the
Ontario Court of Appeal held that the project fell within the ambit of subsection
15(2), and thus did not violate section 15. The Court of Appeal reviewed the history
of subsection 15(2) and determined that it was “undoubtedly” included in the Charter
to preclude the possibility of affirmative action laws’ being struck down as violations
of equality, as had occurred in the United States. It held, however, that subsection
15(2) is not an exception to the guarantee of equality in subsection 15(1), but furthers
it, because achieving equality may require positive government action to improve the
conditions of historically and socially disadvantaged individuals and groups.’ As
such, subsection 15(2) should be considered as part of the subsection 15(1) analysis.
Lmv, supra note 196 at para. 73. The Charter, supra note 3, provides as follows:
15. (2) Subsection (1) does not preclude any lawv, program or activity that has as its
object the amelioration of conditions of disadvantaged individuals or groups
including those that are disadvantaged because of race, national or ethnic ori-
gin, colour, religion, sex, age or mental or physical disability.
Supra note 202.
See Lovelace v. Ontario (1996), 38 C.R1R. (2d) 297, [1997] 1 C.N.LR. 66 (Ont. Gen. Div.),
rev’d (1997), 33 O.R. (3d) 735, 148 D.L.R. (4th) 126 (C.A.) [hereinafterLo’elace (CA.) cited to
O.R].
2a Lovelace (C.A.), ibid at 752.
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The court further held that ameliorative programs would violate section 15 only
where their operation excluded certain individuals that the program was designed to
benefit. The government would then have to justify that exclusion under section 1.
The court distinguished this need for justification from a claim of underinclusiveness
by a disadvantaged group outside the object of the program. Subsection 15(2) permits
governments to provide benefits to a specific disadvantaged group without justifying
the exclusion even of other groups suffering similar disadvantage.! ‘ The issue was not
whether one group was “more disadvantaged” than another, but rather whether the
project was consistent with the purpose of the law, and whether that purpose was con-
sistent with the goals of subsection 15(2).’
On appeal, however, the Supreme Court of Canada agreed with the conclusion of
the Ontario Court of Appeal, but not with its reasoning regarding subsection 15(2).
Iacobucci J., while not foreclosing the possibility that subsection 15(2) may be inde-
pendently applicable in the future, held that, in general, subsection (2) could be seen
as “confirming the substantive equality approach of s. 15(1).”‘ He noted that the Law
test embraced the concept of ameliorative purposes of legislation, and as a result, sub-
section 15(2) is not a “defence”, but rather an interpretive aid. He also rejected the
claim of relative disadvantage put forth by the appellants as part of their argument that
the legislation was unconstitutionally underinclusive. He held that the relative disad-
vantage approach, which pits one disadvantaged group against another, is too narrow
to be consistent with the fullness of substantive equality analysis.”‘ As such, the same
factors would be considered where AED legislation is challenged by a relatively dis-
advantaged group as by a member of the majority. Given that AEDs would be de-
signed to remedy a pre-existing disadvantage, that they would be targeted to the needs
of Aboriginal people (presumably after consultation with Aboriginal people them-
selves), and that this legislation would be in place to ameliorate the situation of Abo-
riginal people, it is unlikely that a court would find such legislation violated section
15. Moreover, such ameliorative legislation would not undermine the human dignity
of claimants, even if they were members of other disadvantaged groups.
These factors drove the Court’s finding in Lovelace (S.C.C.) that the omission of
various Aboriginal people from the legislation did not violate section 15. Targeted
ameliorative legislation that is underinclusive will be much less likely to be associated
with “stereotyping or stigmatization” than underinclusive general legislation!” Here
AEDs would be designed to deal with a specific problem suffered especially by a
Ibid. at 756-57.
Ibid. at 760.
Lovelace (S.C.C.), supra note 202 at para. 100.
“0 Ibid at para. 59.
21 Ibid at para. 86.
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T KNIGHT- ELECTORAL JUSTiCE FOR ABORIGINAL PEOPLE
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unique community. The government’s choice to deal with this problem in a specific
manner would not undermine the human dignity of applicants excluded from the
benefits of the legislation in the same way as if they were excluded from a compre-
hensive program.
As such, it is unlikely that a carefully designed system of AEDs, which sought to
eliminate the problem of under-representation of Aboriginal people in Parliament,
would be found unconstitutional under the equality provisions of the Charter*”-‘ In-
deed, such a scheme would seem to advance, not undermine, the goal of substantive
equality sought by section 15.
Even if such a scheme were found to violate section 15, it would likely be upheld
under section 1. 1 The objective of ensuring greater Aboriginal representation is
“pressing and substantial” and the creation of AEDs is rationally connected to that
goal. Given the minimal effect a scheme of AEDs would have on other Canadians’
relative voting power, such a scheme only minimally impairs the rights of other vot-
ers. In light of the important value that more proportionate representation would have
for Aboriginal people, it seems clear that an AED scheme would pass the proportional-
ity test.
2. Section 3
Perhaps a more likely challenge to AEDs could be brought under section 3 of the
Charter, which guarantees the right to vote. This right has been used by a number of
plaintiffs to challenge electoral maps that have created disparities between the sizes of
electoral districts.”‘ In several of these cases plaintiffs were successful in having
212 This conclusion is reinforced by the existence of the Charter, supra note 3, s. 25. Hogg & Turpel
argue that the main purpose of s. 25 is to clarify that the prohibition of racial discrimination in s. 15 is
not to abrogate Aboriginal or treaty rights. Although the participation of Aboriginal people in Parlia-
ment may not be considered to be an existing Aboriginal right, the existence of the provision sends a
further signal to judges that the Charter should not be used as an instrument to roll back the gains of
Aboriginal people. See P.W. Hogg & M.E. Turpel, “Implementing Aboriginal Self-Government: Con-
stitutional and Jurisdictional Issues” (1995) 74 Can. Bar Rev. 187 at 214.
211 The Charter, ibid, states:
1.
The Canadian Charter of Rights and Freedoms guarantees the rights and free-
doms set out in it subject only to such reasonable limits prescribed by law as
can be demonstrably justified in a free and democratic society.
See the test inRK v. Oakes, [1986] 1 S.C.R 103 at 135-42,26 D.LR. (4th) 200.
214 See Saskatchewan Reference, supra note 177 at 179, McLachlin J.; Dixon % British Cohmbia
(A.G.) (1989), 59 D.L.1L (4th) 247, [1989] 4 W.W.R. 393 (B.C. S.C.) [hereinafter Dixon cited to
D.L.R]; MacKimon v. Prince Edward Island (1993), 104 Nfld. & P.F.LR. 232, 101 D.LR. (4th) 362
(PE.I. S.C.) [hereinafter MacKuinon]; Reference Re Electoral Boundaries Commission Act (Alberta)
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electoral maps struck down where disparities were so great as to be said to violate the
right to vote.”‘ As noted, the Lortie Commission proposed that AEDs could be created
if the number of Aboriginal voters registered on the list in any given province were 85
percent or more of the provincial quotient.” 6 Although this would appear to be well
within the limits placed on variations in size between electoral districts by the juris-
prudence that has considered section 3, there remains the question of how large that
variation from the provincial quotient could become before AEDs were found to be
unconstitutional. This question could arise if governments wanted to create additional
AEDs or if the registration in an existing AED fell below 85 percent but the govern-
ment was unwilling to eliminate the district. Given low voter turnout among Aborigi-
nal people, it may be necessary to allow large deviations from the provincial quotient
to ensure the continuing existence of Aboriginal constituencies.
Nonetheless, it appears that AEDs would be permitted quite large deviations from
the provincial quotient under section 3. The right to vote has been interpreted by the
Supreme Court as guaranteeing the right to effective representation.”‘ In the leading
case on this question, McLachlin J. (as she then was) held that although “relative par-
ity of voting power” is of primary importance in assuring effective representation, this
relative parity could be deviated from “on the grounds of practical impossibility or the
provision of more effective representation.” ‘ The practical considerations that al-
lowed for deviations from equality of voting power derived partly from the fact that,
due to population mobility and fluctuation, achieving parity is impossible. More im-
portant, even the relative parity that is achievable may be undesirable if it detracts
from the primary goal of effective representation.”9 McLachlin J. held that effective
representation of “the diversity of our social mosaic” may require consideration of
factors such as geography, community history, community interests, and minority rep-
resentation.”
The Saskatchewan Reference involved a claim by urban voters that their right to
vote had been violated by the 1986 Saskatchewan electoral map, which permitted de-
(1992), 120 A.R. 70, 86 D.L.R. (4th) 447 (C.A.) [hereinafter Alberta Reference]; Reference Re Elec-
toral Divisions Statutes Amendment Act (Alberta) (1995), 157 A.R. 241, 119 D.L.R. (4th) 1 (C.A.);
Friends of Democracy v. Northwest Territories (A.G.) (1999), 171 D.L.R. (4th) 551 (N.W.T. S.C.),
leave to appeal to C.A. refused (1999), 176 D.L.R. (4th) 661 (N.W.T. C.A.) [hereinafter Friends];
Charlottetown (City of) v. Prince Edward Island (1998), 169 Nfld. & P.E.I.R. 188, 168 D.L.R. (4th)
79 (P.E.I. C.A.), leave to appeal to S.C.C. refused (1999), 251 N.R. 399 (note) (S.C.C.).
215 See Dixon, ibid.; MacKinnon, ibid.; Friends, ibid.
216 Reforming Electoral Democracy Vol. 2, supra note 64 at 139.
212See Saskatchewan Reference, supra note 177 at 183-89.
2,8 Ibid. at 185.
219 Ibid. at 184.
21 Ibid.
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viations from the provincial quotient of 25 percent in southern ridings and 50 percent
in two northern ridings.’ The urban voters claimed that their right to vote was vio-
lated because urban ridings were generally more populous than rural ridings, and thus
rural voters’ ballots were worth more. McLachlin J., however, found that the map did
not violate the Charter, because of the other factors set out above. Specifically, rural
ridings are harder to represent than urban ridings because of difficulties in transporta-
tion and communications, and growth projections and geographic factors justified de-
viations from the provincial quotient.’
This judgment thus suggests that courts will allow future AEDs very generous
deviations from the provincial quotient McLachlin J. held that deviations from the
provincial quotient of up to 25 percent would be permitted in the rural south due to
the difficulties of transportation and communications. AED M.P.’s would undoubtedly
be beset by great difficulties of transportation and communication. These M.P.s
would be responsible for serving a geographic area as big as a province, including
many isolated communities. Furthermore, there was also agreement at both levels of
the courts in the Saskatchewan Reference that deviations of 50 percent for northern
ridings were constitutionally permissible due to their sparse population.” Indeed,
there is observable a more general Canadian “consensus” that sparsely populated and
remote northern territories require special treatment effectively deviating from one
person, one vote.’ Given that much of an AED M.P.’s work would take place in the
northern and remote parts of a province, and that their constituents would be scattered
throughout the district, the analysis that the Court in the Saskatchewan Reference ap-
plied to northern tidings should also be applied to AEDs.
The Court’s analysis of section 3 suggests that governments will have a great deal
of room in designing AEDs in the future. Governments certainly need not be bound to
the 15 percent maximum deviation proposed by the Lortie Commission. In view of
the difficulties of representing such a diverse, widespread, and remote population,
governments would likely be justified in creating AEDs with populations that are
much smaller than the provincial quotient. This may also allow governments to better
ensure that the diversity of Aboriginal people is met by creating more districts. For
example, districts could be designed so that if Metis and Indian voters on the Prairies
wished to elect separate representatives they could do so.
The main difficulty, of course, is that creating AEDs would require legislative ac-
tion on the part of a government. Given the probable criticisms of AEDs from both
… Ib
at 158-59.
2n !N& at 194-95.
‘ See Reference Re Electoral Bowdaries Commission Act (Sas.), ss. 14, 20 (1991), 90 Sask. R.
174,78 D.L.R. (4th) 449 (C.A).
“2 See Roach, supra note 80 at 207.
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Aboriginal and non-Aboriginal sources, it is unlikely that governments would find the
political will to act. The next section will consider whether the government can be
forced to act under the constitution.
V. Guaranteed Aboriginal Representation via the Constitution
Perhaps more interesting than the constitutionality of AEDs, once established, is
whether the constitution could be used to mandate a government to amend the elec-
toral laws so as to ensure guaranteed Aboriginal representation. The federal govern-
ment has proved itself unwilling to follow through on the recommendations of the
Lortie Commission. Although several Aboriginal groups have been hesitant about
pushing for guaranteed representation in Parliament using the political process, it
could be argued that the judicial process presents an entirely different situation. If
guaranteed representation is seen not as a political concession from the state, but as a
constitutional entitlement, some of the opposition from Aboriginal groups may fall
away. It is worth gauging the potential success of such a challenge if Aboriginal peo-
ple chose to seek guaranteed representation, but were met with an intransigent gov-
ernment.
In a number of well-known recent cases the Supreme Court has required positive
action of a government to remedy the breach of Charter rights.’ As such, there is no
merit to the claim that a court could not require a government to take positive meas-
ures to remedy a Charter violation created by the operation of the electoral system.
A. The United States
In the United States plaintiffs have been able to bring “vote-dilution” suits under
the federal Voting Rights Act where minority voters have had their votes rendered in-
effective by the design of the electoral map or system. As noted above, following the
implementation of the Voting Rights Act, many southern states and municipalities
sought to design institutions that continued to ensure the domination of whites. The
In Mobile v. Bolden, ‘ how-
courts struck down several such schemes in the 1970s.
ever, the U.S. Supreme Court refused to find an electoral system systematically ex-
cluding African-Americans from office to be in violation of the constitution unless
discriminatory intent could be found. Congress overturned this decision in 1982 by
2 See Eldridge v. British Columbia (A.G.), [1997] 3 S.C.R. 624, 151 D.L.R. (4th) 577 (provision of
sign-language interpreters in a hospital); Vriend v. Alberta, [1998] 1 S.C.R. 493, 156 D.L.R, (4th) 385
[hereinafter Vriend] (reading protection for gays and lesbians into human rights legislation).
J.R. Low-Beer, “The Constitutional Imperative of Proportional Representation” (1984) 94
26See
Yale LJ. 163.
.. 446 U.S. 55, 100 S. Ct. 1490 (1980).
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amending the Voting Rights Act so that discriminatory effects caused by an electoral
In Thornburg v. Gin-
system would be sufficient to find it in violation of the law.
gles-‘ the court set out the standard that would be used to evaluate whether a minor-
ity’s voting power had been illegally diluted by the electoral map or system used in
the particular jurisdiction. The court held that an electoral system only diluted votes
where a minority group was (1) politically cohesive; (2) sufficiently large and geo-
graphically compact to form a majority in a single-member district; and (3) opposed
by white majority bloc voting so that the minority candidate usually lost.P’ The U.S.
Supreme Court therefore has experience with striking down electoral systems and
maps where they do not conform to the Thornburg standards. This is based on a
statutory scheme, however, and the standard of proof required is very high.
In Canada there is no equivalent to the Voting Rights Act. Nonetheless, it would
appear that sections 3 and 15 of the Charter allow Aboriginal people to challenge the
electoral map or system.”‘ Under both these provisions Aboriginal people may be able
to argue that the current electoral system unconstitutionally dilutes their voting power.
Utilizing the language of the Canadian jurisprudence, it could be argued that the cur-
rent electoral system denies Aboriginal people effective representation under section 3
and creates adverse effects discrimination under subsection 15(1).
B. Section 35
The Constitution Act, 1982 states that “[tihe existing aboriginal and treaty rights
of the aboriginal peoples of Canada are hereby recognized and affimed.” The juris-
prudence interpreting this section does not provide a clear path to requiring Aborigi-
nal participation in Parliament. In determining if sections 3 and 15 do provide such a
path, however, it is worth considering at least one aspect of the jurisprudence inter-
preting section 35. In R. v. Sparrow2’ the Supreme Court held that while British policy
sought to respect the right of Aboriginal people to occupy their traditional lands, there
was never doubt that “sovereignty and legislative power, and indeed the underlying ti-
tle, to such lands vested in the Crown: 4 The transfer of sovereignty at that time pro-
duced no reciprocal obligations because of the doctrine of discovery upon which it
42 U.S.C. 1973(b) (1988).
22’478 U.S. 30, 106 S. Ct 2752 (1986) [hereinafter Thornburg cited to U.S.].
‘2Ibid. at 56.
“3 See Roach, supra note 80, suggesting this possibility at 201, 211-13. See also Swinton, supra
note 15 at 30.
2, Supra note 3, s. 35(1).
23 [1990] 1 S.C.R. 1075,70 D.L.R. (4th) 385 [hereinafter cited to S.C.R.].
2 JbiL at 1103.
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was based. ‘ Today, however, a cession of sovereignty would involve a guarantee of
representation in the central institutions of the remaining sovereign state. Thus, when
entities such as British Columbia or Newfoundland joined Canada, it was on the un-
derstanding that in ceding sovereignty to Canada, they would be guaranteed repre-
sentation in Parliament. In considering whether the Charter mandates guaranteed rep-
resentation for Aboriginal people, it is worth keeping in mind that to the extent the
law claims that Aboriginal people have ceded sovereignty, a modem understanding of
such transfers suggests that in so doing they ought to have been accorded some form
of guaranteed representation in the democratic institutions of Canada.
C. Section 3
Section 3 jurisprudence provides a more promising route for litigants who seek to
mandate a government to provide guaranteed Aboriginal representation. It is clear that
the Saskatchewan Reference can be read as permitting deviations from the principle of
voter equality to take into account the “other factors” listed by McLachlin J. What
remains unanswered is whether her judgment can be read as requiring governments to
deviate from the principle of voter equality to achieve effective representation.’* 6 In a
reference the year following the Saskatchewan Reference, the Alberta Court of Ap-
peal foresaw in the Supreme Court’s decision the possibility of minority claims that
might affect.not only the boundaries of specific districts, but also the total number of
districts and the very idea of single-seat constituencies and contiguous boundaries.2″
In the Saskatchewan Reference, McLachlin J. clearly had in mind the American
model of absolute voter parity.” She noted that this was not the Canadian tradition,
and that in Canada, while equality of voting power is of “prime importance”, it is not
the only factor in ensuring effective representation. 9 Indeed, she also suggested that
other factors must be considered.’
The Saskatchewan Reference indicates that the standard of effective representa-
tion in section 3 not only permits governments to act to protect minority interests, but
that it “necessitates” or “requires” that they do so.” If the electoral system does not
23 See Macklem, supra note 141 at 14.
m See R.G. Richards & T. Irvine, “Reference Re Provincial Electoral Boundaries: An Analysis” in
Courtney, MacKinnon & Smith, supra note 15,48 at 62.
.7 Alberta Reference, supra note 214 at para. 17.
“3 See text accompanying note 43.
‘3’ Saskatchewan Reference, supra note 177 at 184.
24 Insisting on voter parity might deprive citizens with distinct interests of effective representation.
Individual dignity and social equality require that votes not be unduly diluted, but recognizing group
identity may demand the accommodation of other concerns (ibid. at 188).
241 Ibid
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T KNIGHT– ELECTORAL JUSTICE FOR ABORIGINAL PEOPLE
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recognize cultural or group identity, or fails to take account of factors such as com-
munity interests, it cannot be said to effectively represent all Canadians. The evidence
above suggests that the current electoral map does not effectively represent Aboriginal
people. The SMP system, with its large, geographically contiguous districts, is simply
not capable of recognizing or giving effective representation to geographically dis-
persed groups. To meet the standard of providing effective representation to Aborigi-
nal people, the electoral system would have to be modified by the sort of “work-
around” seen in the United States or New Zealand. Without such a workaround the
current electoral map is subject to challenge by Aboriginal voters under section 3 of
the Charter.
Moreover, it is difficult to see how a government may justify a violation of section
3 under section 1. Given the internal balancing that occurs within section 3, the Oakes
test does not seem to have much of a role to play. Indeed, it is arguable that the Sas-
katchewan Reference has incorporated section 1 considerations into the right to vote
in section 32 Essentially, the “other factors” on which a government may rely to jus-
tify deviations from voter parity resemble the sort of factors that a government may
otherwise rely on under section 1.
The government may argue that the need to keep geographic contiguity in dis-
tricting is itself a pressing and substantial concern. Given that there are many exam-
ples around the world of electoral systems that do not utilize geographic districts,
however, it would be difficult to find this argument convincing. This is especially so
when one considers the examples of non-geographic districting used in New Zealand
and proposed by the Lortie Commission.
The government might also seek to justify the lack of effective representation for
Aboriginal people by claiming that the SMP system is necessary to aggregate interests
and that it is preferable to have pluralistic rather than race-based electoral districts.
This would be convincing if not for the evidence demonstrating that Canada already
districts on the basis of communities of interest. Ultimately, this argument relies on
the belief that while rural Canadians or linguistic minority communities constitute
communities of interest worth protecting, the same cannot be said for Aboriginal people.
This obviously cannot be sustained, especially in light of the normative arguments re-
lating to the cession of Aboriginal sovereignty.
As a result, the law as it stands does not achieve the result mandated by section 3
of the Charter That is, it does not ensure the effective representation of Aboriginal
people. This cannot be justified under section 1, and as such, the operation of the
electoral system is unconstitutional due to its effects on Aboriginal people.
See RE. Chamey, “Saskatclewan Election Bouzdary Reference: ‘One Person-Half a Vrote’
(1992) 1 NJ.C.L. 225 at 225.
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D. Section 15
Aboriginal voters could also seek to force the government to improve Aboriginal
representation by using section 15 of the Charter. A Canadian voter would be able to
bring a Charter claim similar to the vote dilution claims under the American Voting
Rights Act. Similarly, there would be no need for plaintiffs in Canada to show that
they were the victims of intentional discrimination. Instead, all that would have to be
shown is that the effect of the electoral districting was to reduce a minority’s voting
strength.” A challenge mirroring the American jurisprudence, however, could be
brought only by a group that was sufficiently geographically concentrated so as to
suggest that an electoral boundaries commission should have drawn the districting
lines differently.
Groups such as Aboriginal people that are not geographically concentrated would
also, however, be able to make a claim under section 15. This claim would be based
on the argument that the EBRA is unconstitutionally underinclusive. This act allows
commissioners engaged in the redrawing of federal electoral boundaries to deviate
from the principle of equality of voting power to respect a community of interests.”‘
This provision allows commissioners to deviate from the principle of equality of dis-
trict size by plus/minus 25 percent. Commissioners can thus draw boundaries to en-
sure the representation of communities of interest such as ethnic groups in cities, rural
Canadians, or linguistic groups. The act permits deviation from equality of voting
power because representation of communities of interest serves the effective repre-
sentation of Canadians.
The constraints of the SMP system, however, ensure that commissioners can only
deviate from the principle of equality of voting power where a community of interest
is concentrated in significant numbers in a particular part of a province. In a province
where a group such as Aboriginal people represents a significant proportion of the
population, and might otherwise be considered a community of interest, these con-
straints of the SMP system mean that the commissioners cannot draw a boundary that
allows representation of such a community.
As such, groups that are not geographically concentrated are denied the equal
benefit of paragraph 15(2)(a) of the EBRA. Commissioners can draw boundaries that
take into account the need for greater representation of rural or urban Canadians,
middle- or working-class Canadians, and the interests of other geographically con-
centrated groups. Aboriginal people, however, who are dispersed throughout the
country and throughout any given province, derive no benefit from this law. Although
243 Roach, supra note 80, argues at 212 that the anglophone minority in Quebec would have a strong
s. 15 claim that ridings should not dilute their voting strength.
24 Supra note 119, s. 15(2)(a).
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T KNIGHT- ELECTORAL JUSTICE FOR ABORIGINAL PEOPLE
1111
what is being challenged here is an omission from a law as opposed to something ex-
pressed in the law, unconstitutional omissions are subject to Charter scrutiny.,”
As noted above, a violation of section 15 requires a law that both draws a distinc-
tion and is discriminatory. The EBRA draws a distinction in its effect. For example,
many communities of interest are well represented in legislatures because the bounda-
ries commissioners are able to take their interests into account, but Aboriginal people
are chronically under-represented. In this sense, the distinction created by the EBRA is
much like that in Vriend In Vriend the Court noted that the legislation created two
distinctions: one between homosexuals and those groups protected by the act, and the
other between homosexuals and heterosexuals. ‘ Here it can be seen that allowing for
the protection of the interests of concentrated groups distinguishes between Aborigi-
nal people and those groups that are not concentrated in any part of the province. The
act also distinguishes between Aboriginal people and non-Aboriginal people, since
the latter group does not suffer from the lack of geographic concentration the way
Aboriginal people do.
There are two steps to showing that a distinction is discriminatory. First, it must
be determined that the distinction is drawn on an enumerated or analogous ground.
Here, that is clearly the case. Second, it must be determined that that distinction imposes
a burden not imposed on others or withholds benefits or advantages available to others.”
This entire analysis is to be conducted flexibly from a concern to prevent the violation
of “essential human dignity”, seeking to “promote a society in which all persons en-
joy equal recognition at law.” ” Determining that a particular distinction leads to dis-
crimination requires demonstrating that the differential treatment results in a loss of
human dignity for the plaintiff. The appropriate perspective is that of a reasonable
plaintiff in the context surrounding the distinction.
Given the relationship between Aboriginal people and the Canadian state it would
appear clear, from the perspective of a reasonable Aboriginal person, that the under-
representation of Aboriginal people in Canada’s democratic institutions leads to a loss
of human dignity. The first, most compelling, contextual factor, “pre-existing disad-
vantage’, is present.” Just as this contextual factor suggests that Aboriginal constitu-
encies would not be vulnerable to challenge by majority group Canadians, it would
also seem to weigh in favour of finding the distinction created by current electoral
legislation to be discriminatory. Certainly the continued under-representation of Abo-
24
‘ See Vriend, supra note 225 at paras. 59-61.
21I/bid at paras. 81, 82.
2,” See eg. ibid. at para. 89. See also Lav, supra note 196 at para. 39.
See Egan v. Canada, [1995] 2 S.C.R. 513 at par. 131, 124 D.L.R. (4th) 609.
9 Lmv, supra note 196 at para. 51.
2-1 Ibid at para. 63.
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riginal people in Parliament has the potential to perpetuate or increase the disadvan-
tage already suffered by Aboriginal people in Canadian society.”‘
The second contextual factor in Law, the relationship between the ground on
which the claim is based and the differential treatment,2 further reinforces the claim
that the operation of the electoral system on the representation of the geographically
dispersed Aboriginal population discriminates. The Court pointed to factors such as
the need to provide different treatment in some circumstances for Canadians with dis-
abilities, women, or elderly persons to permit them to take full advantage of the bene-
fits of legislation. The chance of establishing discrimination is inversely proportional
to the extent to which legislation takes into account the claimant’s needs, capacities,
and circumstances.” The current electoral boundaries laws do little to take into ac-
count the actual situation of Aboriginal people. As noted above, while the laws are
well suited to the circumstances of regionally concentrated communities of interest,
they do little to assist dispersed groups such as Aboriginal people.
The Court’s fourth contextual factor is also persuasive here. This is the “nature
and scope” of the interest affected. ‘ Here the interest affected by the legislation
clearly relates to a “fundamental social institution” and a “basic aspect of full mem-
indeed, arguably the paradigmatic “fundamental so-
bership in Canadian society”,’
cial institution”. That the law’s underinclusiveness prevents Aboriginal people from
participating in this institution in numbers equivalent to their representation in the
population as a whole is extremely problematic. The continued under-representation
of Aboriginal people in the central democratic institutions of this country undermines
their dignity and worth as citizens, and “reinforces existing inaccurate understand-
ings” of their worth as a particular group within Canadian society.’
As noted, Iacobucci J. indicated that some legislation may have ameliorative pur-
poses or effects, and this may save it from being characterized as discriminatory.
Paragraph 15(2)(a) of the EBRA is clearly designed to ameliorate the position of indi-
viduals who share interests with others, although its benefit is confined to those groups
that are concentrated geographically. Some of these groups, such as linguistic and ethnic
minorities, are clearly within the contemplation of section 15 of the Charter. In this
sense a challenge to that provision may be seen as a challenge to a piece of legislation
that seeks to ameliorate the position of disadvantaged groups who have suffered exclu-
2′ See Corbire v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 at para.
70, 173 D.L.R. (4th) 1, L’Heureux-Dub6 J. [hereinafter Corbire].
252 Supra note 196 at para. 69.
253 Ibid. at para. 70.
‘4 Ibid. at para. 74.
.Ibid
‘ Ibid. at para. 64.
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T KNIGHT– ELECTORAL JUSTICE FOR ABORIGINAL PEOPLE
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Iacobucci J. stated, however, that “[u]nderinclusive
sion from mainstream society.4
ameliorative legislation that excludes from its scope the members of an historically
disadvantaged group will rarely escape the charge of discrimination:”” In Vriend the
Court was concerned that excluding sexual orientation from the human rights code
suggested that ‘all persons are equal in dignity and rights,’ except gay men and lesbi-
ans.’ Similarly, the legislative scheme here suggests that all Canadians deserve ef-
fective representation, except those communities and interests that are not geographi-
cally contiguous.
Consideration of the appropriate factors indicates that the omission constitutes
discrimination under the Law test. The issues surrounding the cession of Aboriginal
sovereignty reinforce this conclusion. Parliament is the face of Canadian democracy,
and the exclusion of Aboriginal people from that body undermines their human dig-
nity and threatens to perpetuate stereotypes about that group held by other members
of society.
Turning to section 1, it must be recognized that it is difficult to determine the ob-
jective of an impugned omission. In Vriend lacobucci J. argued that consideration
must be given to both the purposes of the act and the specific impugned provisions in
context.’ He found that the objective of the legislation was to protect “the dignity and
rights of all persons living in Alberta”, but that the exclusion of sexual orientation de-
nied this protection to gay men and lesbians.”‘ As the omission was the very antithesis
of the principle underlying the act, there was no pressing and substantial objective.”
The EBRA seeks to ensure that electoral boundaries are drawn to give all Canadi-
ans the right to effective representation. Subsection 15(2) of the EBRA seeks to pro-
vide that communities of interest and identity have their rights to effective representa-
tion protected. By excluding Aboriginal people from the protection of the act, this
omission, like that in Vriend, acts as the very antithesis of the principles in the legisla-
tion. There can therefore be no discernible objective that the omission is seeking to
achieve, and it should be found to be unconstitutional.
‘ See Eaton v. Brant CowyBoard ofEducation, [1997] 1 S.C.R. 241 at para. 66, 142 D.LR. (4th)
385.
2 Lawv, supra note 196 at par. 72.
” Vriend, supra note 225 at para. 103.
2’ !biU at para. 111.
2″ !bid at para. 116.
26 1biL
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E. Remedy
Unlike Vriend, however, the omission in the EBRA cannot be remedied by “read-
ing in”. It is not entirely clear what would be read in, or at least, what the result would
be for boundary commissioners. It is possible that boundary commissioners could
draw non-geographically contiguous AEDs, but these constituencies would then lack
the rest of the infrastructure that properly constructed AEDs would require. Similarly,
a court is not well equipped to impose a remedy upon a finding that section 3 has
been violated. Many issues about how to effectively represent Aboriginal people
would remain, and would not be amenable to a court’s adjudication.
Instead, the sort of remedy that should be imposed is that suggested by
McLachlin J. in Dixon ‘3 In that case she found the electoral map of B.C. violated
section 3 because the disparities between district populations were too large to be jus-
tified by other considerations of effective representation. She was then faced with the
question of what remedy to invoke. Striking down the law would leave British Co-
lumbians disenfranchised. As such, she proposed striking down the law, but specify-
ing an interval during which the existing legislation would remain valid.” If the gov-
ernment did not act within the period, the Court would impose a remedy. She re-
minded the government, however, that just as courts have a duty to measure the con-
stitutionality of legislative acts against the Charter, so they are obligated to fashion ef-
fective remedies to give substance to these rights.’ A similar approach to the remedy
of an unconstitutional voting system was used in Corbire, where the Supreme Court
eliminated words from the statute that prevented off-reserve band members from vot-
ing in band elections, but suspended the declaration for eighteen months to give Par-
liament an opportunity to consult with the affected group and to redesign the voting
provisions of the Indian Act in a nuanced way respecting all affected interests and
equality rights.2
An equivalent remedy in this case would allow the legislature to debate how to
ensure effective representation for Aboriginal people. There are two clear ways that
this could be achieved: the creation of a number of AEDs, or a move to proportional
representation. PR would allow voters from across the province or country to combine
their votes behind specific candidates or lists of candidates. This would eliminate the
geographic bias of the SMP system and thus eliminate the need to work around that
system. This option has been suggested by John Low-Beer as a more appropriate way
..3 Supra note 214.
2’Ibid. at 282-83, following Reference Re Manitoba Language Rights, [1985] 1 S.C.R. 721, 19
D.L.R. (4th) 1.
2″ Dixon, ibid. at 283-84.
2. Supra note 251.
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to solve the problem of minority under-representation in the United States.:- The New
Zealand Royal Commission also suggested scrapping the existing electoral system,
including the guaranteed seats for the Maori people, and replacing it with a system of
PR. The royal commission stated that a PR system would be preferable for a number
of reasons, including that parties would no longer have an excuse to ignore Maori is-
sues.’ It emphasized that it was certain that Maori representation under PR would be
better than under the SMP system, with or without separate Maori electorates.- ‘
In evaluating the comparative advantages and disadvantages of guaranteed sepa-
rate representation as opposed to PR, it should be noted that PR in many ways plays a
more integrative function, whereas separate representation would ensure that Abo-
riginal people were clearly a community apart from the electoral mainstream. The
choice should be made by Aboriginal people. Thus, the best option would be a move
to PR with the possibility of AEDs if Aboriginal people so desired. In the end the
specific way that effective representation for Aboriginal people should be assured is a
decision to be made by Parliament, not the courts.
Conclusion
Since Confederation Aboriginal people have been denied effective representation
in Canadian central democratic institutions. This was first caused by a denial of the
franchise, but today is the result of the workings of the SUP electoral system. Propos-
als have been made to work around the failings of this system by providing guaran-
teed representation to Aboriginal people. These proposals are similar to actions taken
by the United States and New Zealand to provide greater representation for minority
groups there. Although such proposals are resisted as being contrary to Canada’s in-
dividualist culture, it can be seen that democracy in this country has always been con-
cerned with the representation of groups and communities. Proposals for guaranteed
representation are also attacked as detracting from the right to self-government. It has
been shown, however, that guaranteed representation may in fact be a necessary and
useful complement to self-government in the future.
Although schemes of affirmative districting have been struck down in the United
States, the test developed by the Supreme Court of Canada under section 15 of the
Charter would not pose a sirlar threat if a system of guaranteed seats were created
for Aboriginal people in this country. Further, the test under section 3 suggests that
governments would have substantial leeway in designing any system of guaranteed
seats. If a government proved unwilling to design such a system, the Charter would
Supra note 226.
New Zealand, supra note 17 at 102.
2 Ibld at 103.
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allow Aboriginal people to mandate the design of a system of guaranteed representa-
tion. Aboriginal people could bring a claim that effective representation had been de-
nied to them under section 3, and that they were suffering adverse effects discrimina-
tion based on the workings of the Electoral Boundaries Readjustment Act and the
electoral system. If such a claim were advanced, a court should declare the current
system unconstitutional, but suspend the imposition of a remedy to allow Aboriginal
people and all Canadians to debate how best to improve the constitutionality of the
electoral system.
For too long Aboriginal people have been denied participation in the central
democratic institutions of our society. It does not speak well of our political commu-
nity that the first peoples of this country have been denied a proportionate place in
Parliament. If reconciliation between the various peoples that now occupy this land is
to come about, the most logical place for it to begin is at the heart of our democracy.
Indeed, until Aboriginal people are included in reasonable numbers in the body that
chooses governments and shapes policies, it is not inappropriate to suggest that, for
many, Canada will have failed to live up to the promise of democracy.
