The Roots of Canadian Law in Canada
John Ralston Saul*
the earliest
This article asks the Canadian legal community to
look beyond the standard historical viewpoint that roots
Canadian law in the British common law and French
civil law traditions. The author discusses the historical
foundations of Canadian law in a uniquely Canadian
context, beginning with
interactions
between the First Nations and the Europeans. Drawing
on the research outlined in his recent book, A Fair
Country, the author challenges his audience to think of
Canadian law as far more than the local implementation
of foreign legal traditions. While Canada has freely
borrowed from various legal traditions, the application
of law in Canada has been a unique process intimately
tied to Canadian history. The author calls on us to
recognize a distinctly Canadian legal tradition which
has grown out of Aboriginal law and subsequent local
experience while being influenced by, but by no means
limited to, common law and civil law traditions.
Cet article demande la communaut juridique
canadienne daller au-del du point de vue historique
standard selon lequel les racines du droit canadien se
trouvent dans les traditions de common law britannique
et de droit civil franais. Lauteur retrace
les
fondements historiques du droit canadien dans le
contexte unique du pays, en commenant par les
premires interactions entre les Premires Nations et les
Europens. En sappuyant sur les recherches tayes
dans son rcent livre Mon pays mtis, lauteur enjoint le
public envisager le droit canadien comme beaucoup
plus que la simple implantation locale de traditions
juridiques trangres. Bien que le Canada ait emprunt
librement diverses traditions juridiques, lapplication
du droit au Canada a toujours t un processus unique
intimement li lhistoire canadienne. Lauteur nous
interpelle pour que nous reconnaissions une tradition
juridique canadienne distincte,
issue du droit
autochtone et de lexprience locale subsquente, tout
en tant influence par les traditions de common law et
de droit civil sans y tre limite.
* Essayist and novelist, Companion of the Order of Canada, Chevalier of the Ordre des Arts et des
Lettres, President of International PEN, co-Chair of the Institute for Canadian Citizenship. This text is
a revised version of an address given at the McGill Faculty of Law on 3 February 2009 on the
occasion of the McGill Law Journal Annual Lecture.
John Ralston Saul 2009
To be cited as: (2009) 54 McGill L.J. 671
Mode de rfrence : (2009) 54 R.D. McGill 671
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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I would like to begin the written form of this lecture by acknowledging the
Mohawk people on whose traditional land we are. This form of acknowledgement is
commonly and correctly used in Western Canada. I have noticed that it is very slowly
coming into use in southern Ontario and Quebec, yet I cannot think of places where it
could be more important to make this a norm. Some of you, as law students,
professors and judges, may feel that this is a mere formality. But if you consider
various Supreme Court of Canada decisions over the last few decades, you quickly
realize that there are different forms of belongingforms outside of those European
norms of ownership defined by buying and selling. These non-European ideas of the
relationship between land and people have been recognized by our courts. They will
play an increasingly important role in the complex way we understand what this land
is and what form our relationships to it will take.
Madame la rdactrice en chef, je vous remercie pour votre invitation. Je suis trs
heureux dtre ici aujourdhui, tant ma faon un produit et un membre de
lUniversit McGill, qui ma dcern un doctorat honorifique en lettres. Toutefois,
comme je ne suis pas avocat, je vous prierais dtre indulgent si je me trompe dans
certains noncs de cet expos.
En vrit, je suis un produit par deux fois de McGill, puisque jai aussi pass
quatre annes ici, de manire plus honnte, cest–dire que jy ai tudi pour
dcrocher mon diplme. Jai frquent lUniversit dans les annes 1966-69, une
poque o McGill tait un lieu particulirement excitant, car nous tions en grve la
plupart du temps. Je conserve des souvenirs trs anims de cette priode, notamment
davoir rencontr Frank R. Scott1, qui tait lun des grands hommes de cette Facult.
Un soir, des tudiants ont dcid de mener une action provocatrice indite et
doccuper le bureau du Prsident. Jtais moi-mme devant le bureau, o plusieurs de
mes collgues taient dj assis par terre, lorsque jai soudainement regard ma
droite et vu un homme beaucoup plus grand et imposant mes cts. Il portait un
costume ancien et distingu et dgageait une grande sagesse et certitude, tout en
laissant deviner le mpris dun homme de gauche qui regarde des jeunes de gauche
essayant de bousculer lordre tabli. Il fumait longuement une cigarette et jessayais
de trouver une manire intelligente daborder cet tre impressionnant qutait Frank
R. Scott. Je me suis tourn vers lui et ai prononc, avec un maximum de dignit,
Good evening, sir. Sa cigarette la bouche, il a lentement aspir une norme
bouffe et la envoye en lair avec un calme stoque, puis sest retourn vers moi. Il
ma considr du haut de sa prsence imposante, puis encore plus lentement, ma
1 Homme de lettres et dengagement social, doyen de la Facult de droit de lUniversit McGill de
1961 1964. Frank R. Scott a notamment remport les clbres causes Switzman v. Elbling ([1957]
R.C.S. 285, 7 D.L.R. (2e) 337), qui a reconnu linconstitutionnalit de la Loi protgeant la province
contre la propagande communiste (S.R.Q. 1941, c. 52), ainsi que Roncarelli v. Duplessis ([1959]
R.C.S. 121, 16 D.L.R. (2e) 689), qui a jet les bases de la primaut du droit en droit public canadien.
673
J. R. SAUL THE ROOTS OF CANADIAN LAW IN CANADA
2009]
rpondu : Hi. Ses yeux ont ensuite gliss vers la porte du bureau, et ce fut tout. Je
suis parti, ayant compris que jtais un tudiant et quil tait un grand homme.
Jai plus tard eu lopportunit dtre invit quelques reprises prononcer des
confrences devant des auditoires de juristes, notamment devant lAssociation du
Barreau canadien. Le juge en chef de la Cour suprme du Canada de lpoque, le trs
honorable Antonio Lamer, tait assis juste ct de moi. La confrence avait lieu
dans une grande salle lacoustique un peu dficiente. Si mes souvenirs sont exacts,
jai soutenu une srie daffirmations assez originales, donc assez risques devant un
parterre de juristes chevronns. chacune de ces affirmations controverses, je
regardais le juge en chef pour valuer sa raction. Bien que rvolutionnaire sur
papier, ctait un homme qui ressemblait davantage un gentleman dune vieille
cole du dix-neuvime sicle. Il me regardait avec beaucoup plus de gentillesse que
Frank R. Scott et chaque fois que je lanais lun de mes propos risqus, il hochait la
tte avec un sourire, en signe dun parfait accord. Aprs la confrence, je lai remerci
davoir manifest son approbation envers mes propos. Il ma rpondu : Cette salle
est impossible. Je nentendais absolument rien de ce que vous disiez.
Je suis heureux de parler aujourdhui dans une facult en avance sur beaucoup
dautres facults de droit au Canada et ailleurs dans le monde, une facult qui
enseigne le droit civil et la common law ensemble, pas simplement en parallle. La
Facult offre en plus un cours spcial intitul Aboriginal Peoples and the Law2.
Est-ce dire quil existe un principe de droit autour duquel tudier les questions
autochtones ? Je crois que les peuples autochtones napprouveraient pas une telle
interprtation du mot droit. En lisant le syllabus du cours, jai retenu le passage
suivant : What does it mean to acknowledge the coexistence of Aboriginal legal
traditions and European legal traditions in Canada?. Cette phrase touche le nud de
mon expos, car premire vue elle laisse entendre une coexistence de systmes
juridiques qui nont jamais eu dinfluence lun sur lautre.
videmment, les systmes juridiques de droit autochtone, de droit civil et de
common law existent sparment et simultanment au Canada. Or, il se trouve
galement des relations intimes entre ces systmes, mme si peu de gens, par
exemple, se penchent sur les liens troits entre la philosophie du droit autochtone et le
droit civil ou la common law. Lancienne chef de la Commission des revendications
des Indiens, lavocate Rene Dupuis, mentionne dailleurs que beaucoup sen
tiennent aux racines de la colonisation dans la manire de dfinir leurs origines, y
compris dans le domaine juridique. En cherchant la vrit travers les notes de bas de
page et les prcdents, lorigine des choses se retrouve toujours quelque part en
Angleterre ou en France. Cela peut sembler logique dun point de vue historique,
mais il est alors impossible dviter une perspective et un tat desprit colonial. Pour
2 Kirsten Jane Anker, Coursepack: Aboriginal Peoples and the Law, Facult de droit, Universit
McGill, 2008.
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Rene Dupuis, au contraire, le droit coutumier autochtone sinsre dans le droit
canadien, explicitement ou non3.
Jean Friesen, historienne et ancienne vice-premire ministre du Manitoba,
soutient galement une vision de lhistoire du Canada o les racines autochtones se
mlent celles des deux systmes juridiques europens4. Pourtant, les juristes
agissent comme si la tradition du droit autochtone nexistait pas ou navait pas
dimportance pour les citoyens comme vous et moi. Il est en effet trs rare, en dehors
des grandes dcisions de la Cour suprme du Canada, que les gens parlent comme si
leur droit quotidien tait fondamentalement influenc par les principes du droit
autochtone. Au niveau philosophique, les juges, particulirement la Cour suprme,
sont bien en avance sur les avocats en gnral, les membres des gouvernements et les
bureaucrates. Leur esprit intellectuel humaniste les amne prendre davantage en
compte le rle des peuples autochtones dans les racines du droit canadien, et par
consquence, de notre civilisation.
Il faut donc regarder de manire intime leffet dun systme juridique sur un autre
et surtout, considrer les racines autochtones, au Canada, des systmes juridiques dits
europens. Je crois que le Canada est en grande partie bloqu dans son affirmation en
tant que pays en raison de labsence dun tel examen gnralis. Nous avons une
langue juridique europenne, alors que nos actions sont intimement influences par
les peuples autochtones. Nous vivons donc une contradiction importante entre les
mots et la ralit. Il existe certaines diffrences au niveau provincial, mais le malaise
et la difficult rconcilier le droit et la ralit bloquent tout autant le Qubec que
lOntario ou la Colombie-Britannique.
This sort of misunderstanding can be seen in the simplest of public rhetoric. For
example, it is regularly asked in Western Canada: Who are the treaty people? We are.
We are all treaty people because treaties are assented to by two sides. They were
assented to by the Aboriginals and they were assented to by the other side. The other
side? French representatives, British representatives, Canadian representatives. In the
early days the assent took the form of an oral commitment.5 Later on, it took the form
of a classic European-style legal document.6 In other words, we inherit the treaties
along with everything else that we inherit through our history, and everybody in this
room is a treaty person. If you immigrated to Canada three and a half years ago and
became a citizen today, you are a treaty person. The fact that we so rarely talk this
wayparticularly in Central Canadashows how hypocritical and superficial we are
3 Rene Dupuis, Le statut juridique des peuples autochtones en droit canadien, Scarborough (Ont.),
Carswell, 1999.
4 Kerry Abel et Jean Friesen, dir., Aboriginal Resource Use in Canada: Historical and Legal
Aspects, Winnipeg, University of Manitoba Press, 1991.
5 Olive Patricia Dickason, Canadas First Nations: A History of Founding Peoples from Earliest
Times (Toronto: McClelland and Stewart, 1992) at 177-78.
6 Ibid.
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J. R. SAUL THE ROOTS OF CANADIAN LAW IN CANADA
2009]
when we talk about undoing the wrongs done to Aboriginal peoples over the last one
hundred to one hundred and fifty years. The standard discourse, if you look at it from
a linguistic point of view, has focused much more on how do we get these people off
our backs than on how do we rebuild this society by taking into account its reality
that is, by taking into account the central role of Aboriginals in this society. If we
begin with the concept that we are all treaty people, at least we are then on the right
intellectual track.
What is the role of Aboriginal peoples at the core of Canada, and therefore at the
core of Canadian law? Im not making romantic statements here or asking romantic
questions. Im asking what I suppose you consider to be legal questions. The
Supreme Court of Canada and many of the provincial courts have been perfectly clear
on these issues. They have been explaining to the country and offering the country an
honest and clear interpretation of our past, and therefore, of our present. The Supreme
Court of Canada has made it perfectly clear what is going to happen over the next
quarter-century in this country when it comes to dealing with the central role of
Aboriginal peoples. Some of you will have studied these decisions. I hope that all of
you have studied Delgamuukw v. British Columbia.7 And Guerin v. Canada.8 Or the
Tsilhqotin Nation case.9 Frankly, I dont know how you can understand the way law
is evolving in Canada without looking at these cases. I dont mean that those of you
who are interested in Aboriginal law need to have looked at these cases. I mean that
anybody who is going to deal with any part of law in Canada needs to understand
these cases and their implications for Canada as a whole.
Let me take this a step further. I was speaking to the Indigenous Bar Association
the other day. There were about five hundred Aboriginal lawyers and judges there.
There are now almost two thousand Aboriginal lawyers and judges in Canada.10 At
this conference, Skj Henderson, one of Canadas great legal philosophers, who
teaches at the Native Law Centre at the University of Saskatchewan, put forward his
argument on the roots of sovereignty. He said the power of the Crown is derived from
the original holders of the authority of the sovereign.11 In other words, the Canadian
state as a whole derives its legitimacy, authority and sovereignty from those treaties.
Therefore the sourcethe rootsof our sovereignty and the legitimacy and authority
of our state lie within Aboriginal civilization. These are not the products of colonial
societies or European civilization. They dont come from Europe. They dont come
from the people who came here. They come from the people who were here and are
here. Once you suggest this ideaI would say this factthat the source of Canadian
7 [1997] 3 S.C.R. 1010, 153 D.L.R. (4th) 193 [Delgamuukw cited to S.C.R.].
8 [1984] 2 S.C.R. 335, 13 D.L.R. (4th) 321 [Guerin].
9 Tsilhqotin Nation v. British Columbia, 2007 BCSC 1700, [2008] 1 C.N.L.R. 112, 65 R.P.R. (4th) 1
10 A statistic compiled from speaking to several Aboriginal law schools and organizations.
11 See generally James [skj] Youngblood Henderson, Empowering Treaty Federalism (1994) 58
[Tsilhqotin Nation].
Sask. L. Rev. 241.
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legitimacy and sovereignty is Aboriginal, you will find that the way in which you talk
about any aspect of Canadian law changes. It changes property law. It changes
commercial law. It changes environmental law.
Again, is this romanticism? Do we say that the British are romantic because they
keep referring to events and documents stretching back to the Magna Carta? Do we
call the French romantic because they approach their current situations out of
assumptions, decisions and commitments made under Richelieu or during the French
Revolution? They have to go back to these roots because these are the foundations
upon which they built their modern state.
We built our nation-state through the treaties. You can give a cynical or ugly
interpretation to that. Or you can put a pretty picture on it. Or, indeed, you can be as
utilitarian as possible and simply say, thats what happened. But without a
conscious acceptance of the full role of the treaties, all we are left with all deeply
colonial, deeply romantic interpretations. Without the treaties, what we have been
doing here for hundreds of years is nothing more than short-term and temporary. You
only have a civilization if you are willing to come to terms with its fundamental roots.
The authority of the sovereign moved from Aboriginal civilizations to the Crown.
For many people this idea throws us into the colonial context and their interpretations
of Canada follow from that. But thats because they dont understand the Crown. The
Crown is not a person. The Crown is not a monarch. The Crown is you. The Crown is
a concept of the citizenry. If you refuse that idea, then you are falling into a trap
which you yourself have set. It will lead you to limit yourself to a colonial mindset
with a colonial history. If you believe that the Crown is an individual and not the
citizenry then it means that you dont really want to be from herewhether you are
francophone or anglophone. You really want to be from somewhere else.
That was why, in Reflections of a Siamese Twin, I addressed the common public
description of Canada as a place of two founding peoples and multiculturalism. This
phrase doesnt even scan properly or make grammatical sense. More to the point, this
stylistic problem is the reflection of a real historical problem. So I pointed out that
Canada was like a great building, constructed upon three founding pillars
Aboriginal, francophone and anglophone.12 And that foundation was held together by
the cement of the Metis people and the Metis idea. On top of that foundation we built
an enormous edifice, as wave after wave of immigrants arrived to become citizens,
after which they began to move effortlessly between the floors. But if any one of the
three pillars is weak, then the whole building becomes unstable and risks falling over.
That is true of every building and its true of every civilization. No matter how
ancient the foundations are, they have to be understood and maintained. If you look at
the last fifty to sixty years of Canadian history, you will find that we have spent a
great deal of time strengthening the francophone pillar, whether its in Quebec or
12 John Ralston Saul, Reflections of a Siamese Twin: Canada at the End of the Twentieth Century
(Toronto: Viking Canada, 1997) at 81-100.
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J. R. SAUL THE ROOTS OF CANADIAN LAW IN CANADA
2009]
outside of Quebec, or whether it has to do with increasing the bilingualism of
anglophones. For example, there are today almost three hundred and twenty-five
thousand anglophone students in French immersion schooling across Canada.13 Forty
years ago there were none. This passing of laws, transferring of powers and money,
creation of new responsibilities, building up of new and old groups, has been all
about strengthening the francophone pillar. And we have done a reasonably good job
of it. In fact, half of the bilingual people in Canada today are anglophones, most of
them living outside of Quebec. Thats a radical change from forty years ago.14
But the original pillar has been virtually ignored. There is an enormous need to
complete the treaty negotiations as rapidly as possible, but more than that, to ensure
that there is a proper transfer of money, power and responsibility to people who need
it to make their lives work properly. The way in which Aboriginal questions are
covered in our media makes it virtually impossible to sell this idea. On a regular basis
we receive what one might call our weekly fix of disaster stories coming out of
Aboriginal communitiessuicides, glue sniffing, leadership corruption and so on.
This makes most Canadians think that Aboriginal communities do not function. The
First Nations philosopher Taiaiake Alfred believes that this mindset encourages what
he calls the politics of pity.15 Non-Aboriginals concentrate on what doesnt work
among Aboriginals. We say what a pity and shove Aboriginals to the margins of our
political and social activity. I would say that this is a new form of racismnow you
can be a racist while expressing well-meaning concern.
Let me give you another example. There are endless stories about the terrible lag
in Aboriginal education. At the same time, the number of Aboriginals in post-
secondary education has almost doubled in the last twenty years to approximately
thirty thousand.16 Yes, it should be sixty or ninety thousand, but if you go back a half-
century you will find that it was then a tiny handful of people. In other words,
Aboriginal peoples are fast reaching a critical mass level when it comes to post-
secondary education. You see this in the large numbers of lawyers, doctors, engineers,
nurses and so on. And I must say, that as I go across the country, the most interesting
new elite I find are the rising young Aboriginal leadership. They are indeed young,
well-educated, very smart, very angry and very determined to change things. In many
ways they remind me of the new francophone elite of the 1960s.
13 Canadian Parents for French, Immersion Enrolment by Grade and by Province and Territory
2006-2007, online: Canadian Parents for French
and this number likely includes both anglophones and allophones).
14 2006 Census: The Evolving Linguistic Portrait, 2006 Census: Bilingualism, online: Statistics
Canada
15 Wasse: Indigenous Pathways of Action and Freedom (Peterborough, Ont.: Broadview Press,
2005) at 20 (Alfred identifies the conventional aspects of the politics of pity as self-government
processes, land claims agreements, and aboriginal rights court cases).
16 Indian and Northern Affairs Canada, Aboriginal Education, online: Indian and Northern Affairs
Canada
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And yet, how many Canadians have heard of Taiaiake Alfred at the University of
Victoria. Or Guujaaw, the elected head of the Haida? Or Hayden King at McMaster
University? Or Brock Pitawanakwat at the University of Winnipeg? I could go across
the country naming person after person. Of course, many of them wont get a chance
at real power because they are being held back by the mainstream of the Canadian
system. One could say that one of the conscious or unconscious reasons for dragging
out treaty negotiations is that it sidetracks the Aboriginal leadership from becoming
involved with larger Canadian questions.
Joseph Gosnell is retired now, but for twenty-five years he led the Nisgaa. He
could have been Governor General or foreign minister of Canada. Instead, he had to
spend his entire public career fighting for a treaty settlement which could have been
completed on the same terms after two or three years. Guujaaw has now devoted the
same length of time to fighting for the Haida cause. If the Haida cause had been
settled, it might have been possible for Guujaaw to play any number of national roles.
There are those in the legal profession and in the civil service who say they are
not dragging out the treaty negotiations. Rather, they are being careful with public
money. This is deeply untrue. You dont save public money by dragging a negotiation
out over a quarter-century or a half-century. Thats how you waste public money
through the costs of civil service time and legal costs on the Aboriginal side. But you
also waste the lives of whole communities who are obliged to focus decade after
decade on resolving these issues. They would like to be doing other things. It could
be argued that one of the reasons that the current minister of health of Canada, Leona
Aglukkaq, is an Inuit is because the fundamental political questions of Nunavut were
settled a decade ago. Once they were settled, people could begin to get on to other
things.
The argument I am making is this: Canada, in its current formthat is, as a mix
of people who came from here and people who came herehas been a work in
progress for some four hundred years. For the first two hundred and fifty yearsand
that is a historic average which alters in both directions depending on where you
areAboriginal peoples were the dominant force or equal partners. Our esteemed
European forbearers were a miserable little group of uneducated, generally unwashed
and certainly poverty-stricken immigrants who did not know where they were and
could not get through winter without dying in large numbers. They needed to be
taken everywhere, and statues were then made of Champlain or another explorer
pointing off into the distance. Of course, he had no idea where he was pointing
because he hadnt yet been taken there. For the first two hundred and fifty years, the
Aboriginals set the tone and the newcomers survived by adapting such things as their
clothing, food, methods of transport and housing to indigenous practices. Remember,
ours is the only imperial experiment in which the Europeans immediately abandoned
their means of transportation and adopted the local means of transportation. They
didnt do this for a short period of time. The great fortunes of Canada over its first
two to three centuries were built on the use of the canoe up and down the great
highways of transportthe rivers and lakesused by the Aboriginal peoples. In
other words, non-Aboriginals built the country with and on Aboriginal means and
structures of communication until the arrival of the railroads.
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2009]
Equally important is the reality that the immigrants found themselves adapting to
Aboriginal ideas, philosophical ideas and intellectual approaches to organizing their
societies. This is a very basic point which is almost never raised. Look at the
department of philosophy at this university, or at lUniversit de Montral. What do
we teach? Basically, we teach an inherited line of philosophy coming out of Europe.
We scarcely teach ideas coming out of Asia or North Africa or elsewhere, despite the
fact that the immigration patterns of this country might make that interesting. Of
course, classes are offered in these areas. But what Im talking about is the
mainstream interpretation of what ideas there are and how they have evolved. Our
departments of philosophy have continued to teach our ideas as if they arrived here in
a straight line from Athens through Rome and Western Europe. And for four hundred
years nothing original happened here. We simply vegetated from an intellectual point
of view, except to the extent that we further developed the ideas received from
Europe. Youll forgive me for oversimplifying this evolution, but it is close enough to
the reality.
This inability to include Aboriginal ideas in our way of teaching mainstream
philosophy prevents us from talking about ourselves and what we do here in any sort
of interesting or relevant manner. This is another example of the contradiction
between language and action. When that contradiction is great, the society is blocked.
What do Kantian principles tell us about Canada? Start from the background which
produced the Kantian principles: a highly urban civilization in which the closest
anybody came to wilderness was a park. Go back to the idea of a manImmanuel
Kantwhose minute-by-minute existence could be clocked by his neighbours in
urban Europe. How could this be the basis for the philosophical interpretation of a
country like Canada?
Take the example of legal aid in Canada. Ottawa ran the Northwest Territories
until the late 1950s as if it were a mere colonial outpost. The capital of the Northwest
Territories was Ottawa. When things began to change, a judge was named to the
North, a remarkable man called Jack Sissons. When John Turner became minister of
justice, he took a great interest in the North. He traveled around from community to
community with Justice Sissons, who had invented a new way of doing justice,
carrying the whole court in small airplanes and bringing them into communities. John
Turner took all of this very seriously and spent a great deal of time in the courtrooms
listening to the cases and trying to understand the implications, the decisions, the new
approach toward justicea justice appropriate to the Arctic and the North. One of the
things Judge Sissons kept pointing out to the minister was that this Southern idea of
justice as a system of opposing sides which included the concept of paid defence
simply could not work in a society not based on cash. He encouraged the minister to
move in the direction of a non-cashbased justice system. Turner came back to
Ottawa and developed a legal aid system for the Northwest Territories. This was the
beginning of legal aid in Canada. It spread from Inuit principles of a non-financial
based society to the other territories and provinces of Canada. Curiously enough, you
wont find any description of the roots of legal aid in writings on the subject. I
suppose the Southern Canadian experts could not believe that something which had
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become so important to the rest of Canada could have had its origins in Aboriginal
civilization. I tell you this story to indicate the extent to which even in our own
lifetime ideas that are adopted by the rest of the country from Aboriginal civilization
are simply discounted or erased. You can imagine how much more common this was
in the early history of the country.
One could argue the same thing about common law relationships. The Canadian
justice system struggled for some time with what they called country marriages,
traditional marriages, or informal marriages. In other words, they struggled with the
fact that hundreds of thousands of Inuit and First Nations people seemed to be living
in a married state and had not been married by Western-style churches or by the state.
The state did not know what to do about it. After all, they felt they needed to affirm
the legality of human relationships. In the Arctic, thanks again to Justice Sissons and
his successor Justice William Morrow, changes were made in legal interpretations so
that the Canadian state could accept that people who had not been married by the
state were nevertheless entitled to many of the same benefits as married couples.
Now, almost a fifth of the population of Quebec live precisely according to Inuit
tradition.17 Of course, Im not suggesting that this is a direct and conscious result of
legal reasoning, starting with the Inuit and ending with common law marriages across
Canada. But it could be argued that once the state has accepted that one part of the
population can live together in a manner which does not fit with the Western idea of a
state- and church-justified marriage, it is only a matter of time before that principle
begins to spread to other parts of the state. Once a legal, ethical, or moral situation
has been accepted, it begins to spread the way a plant spreads seeds. The process is
neither conscious nor intellectual. It is a process which comes out of the formalization
of the occupation of intellectual space.
Take a third example. We tend to describe Canada as a multicultural experiment.
Multiculturalism is not a word that I like or use. I prefer the term used in French,
interculturalisme. Its a better word, although it is still not good enough. What we are
attempting to suggest through these terms is that Canada is experimenting with a
different sort of society. This is a society that mixes people together without the race-
based horror and gnashing of teeth which are so common in Europe and, for that
matter, the United States.
17 Statistics Canada, Profile of Marital Status, Common-law Status, Families, Dwellings and
Households for Canada, Provinces, Territories and Forward Sortation Areas, 2006 Census (Statistics
Canada catalogue no. 94-576-XCB2006003), online: Statistics Canada
relationship, out of a total population in Quebec over 15 years old of 6,293,620).
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I say this knowing that in Quebec there have recently been difficult debates on
the subject of interculturalisme, and that a commission recently completed its work
on the topic. I am filled with admiration for the two professors who led the
commissionCharles Taylor from McGill and Grard Bouchard from lUniversit du
Qubec. Once they allowed people to let off a bit of steam, it became apparent that
the opinions of Quebecers were no different from the opinions of other Canadians.
Whats more, the atmosphere which gradually came out of the commissions work
was that interculturalisme was a good thing and that only a very small minority of the
population was opposed to it.
But there remains a serious intellectual problem. When you read about
multiculturalism or interculturalisme in Canada, it is very difficult to understand
where it comes from. How did it happen? It didnt pop out of Pierre Trudeaus back
pocket in the 1970s. Where are the footnotes for interculturalisme? Where is the
traceable linear history? The reason so much of this is vague is because our
intellectual structure, which leads us back into European and U.S. history, simply
does not help us on this subject. There is the old adage that Canada is not a melting
pot. We repeat this phrase because the melting pot concept is an eighteenth and
nineteenth century European idea that no matter how different people are, they can
and indeed must be melted into a monolithic mythology and a monolithic loyalty to a
monolithic nation-state. In other words, the melting pot is an expression of just how
European the United States is.
What makes uncovering the roots of multiculturalism so complicated in Canada
is that even at the height of some of the worst aspects of racism in Canadathe
period of the Head Tax and anti-Semitism and so onyou find that there was
nevertheless a clear idea that some sort of experiment was being attempted. For
example, if you go back to Wilfrid Lauriers 1905 speech in Edmonton, welcoming
Alberta into Confederation as a province, youll find him speaking exactly in the
manner that a prime minister of Canada would speak today.18 He takes a large part of
his time speaking over the heads of the anglophone and francophone elites at the front
to address the new Canadians at the backthe Ukrainians, Poles, Jews, Swedes and
Norwegians. And what is his message? Basically, that we want you to be citizens. We
do not want you to forget where you come from. Its important that you keep certain
things, but its also important to understand that you are going to be part of this place.
You have to think about that balance and how your children are going to both
remember where they come from and become a part of where they are. That portion
of the speech would have made a very fine contribution to the Commission de
consultation sur les pratiques daccommodement relies aux diffrences culturelles.19
18 Sir Wilfrid Laurier, Address (Speech delivered at Albertas inauguration ceremony, Edmonton, 1
September 1905) in Douglas R. Owram, ed., The Formation of Alberta: A Documentary History
(Edmonton: Alberta Records Publication Board, 1979) 374 at 376-77.
19 Fonder lavenir : Le temps de la conciliation (Qubec : Commission de consultation sur les
pratiques daccommodement relies aux diffrences culturelles, 2008).
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Or you could go back to Louis-Hippolyte LaFontaines Address to the Electors
of Terrebonne in 1840the single most important statement of political philosophy
in the history of modern Canada.20 Has anybody read it? Anybody? No. Its not
taught. No doubt thats because its too important to be taught. If you taught it and
other documents such as this, you would have to think of yourself as coming from
here as opposed to being mere colonial outcroppings of another continent. In the
address, you will find a whole paragraph in which he lays out the nature of
immigration and citizenship.21 As with Lauriers speech, you could put this on a wall
anywhere today and be perfectly happy. So now youre back in the 1840s. You could
just as easily go back to the 1780s. If you did so, you would discover that the
Loyalists were not British, middle-class, anti-democratic, order-loving Tories. That
was an interpretation put in place in the late-nineteenth century when the false
interpretation of Canada was established. If you go back to the eighteenth century and
have a look at who they were, youll find that they were mostly made up of minority
groups. The single largest group came from German religious minorities. In fact, they
were German speaking. Then came the Catholic Irish and Catholic Scots, and then
the Aboriginals and the freed slaves.22 Suddenly you realize that the Loyalists were
very much constructed in the model of what today we would call interculturalisme.
They were the perfect elements for a civilization of minorities, or an intercultural
civilization. Whats more, these people came largely from the northern fringes of the
American colonies, a large number of whom were therefore used to living in what we
might have called a Canadian waythat is to say, in close daily relationships with
First Nations people and Metis people.
Now take one step further back. How were the French received by the First
Nations when they first arrived? How were the Scots received by the First Nations
when they arrived as the administrators of the Hudsons Bay Company? Suddenly,
you begin to notice that the adaptation of the Europeans to the utilitarian and
philosophical approaches of the Aboriginals had a method attached to it. That method
was non-linear, non-rational, and non-European. It was an approach that involved the
concept of the circle and the idea that those within the circle would happily adopt
newcomers into the circle, providing they accepted certain basic rules. Once they
were in the circle, everybody could work out exactly what their relationship would
be. Now that sounds strangely familiar. It sounds like Canadian immigration policy at
its best. We do indeed have a system of adoption into the circle on the basis of certain
rules, after which we all take the time to work out exactly how these relationships will
function over the long term.
20 LAurore des Canadas (28 August 1840) 1, reprinted in Dennis Gruending, ed., Great Canadian
Speeches (Markham, Ont.: Fitzhenry and Whiteside, 2004) 13.
21 Ibid. at 14-15.
22 This information is based on statistics compiled from a variety of sources.
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Canada takes nearly 1 per cent of its population every year in immigrantsover
two hundred thousand people.23 No other country does this. Eighty-five per cent of
those immigrants become citizens.24 In the United States, the number is less than 60
per cent.25 In Europe, they are having a heart attack over 5 per cent.26 How is it that
we are able to do all of this without enormous anxiety? Why is it that Canadians feel
relatively comfortable being so far out on the cutting edge? When you start looking at
Aboriginal theories of justice, Aboriginal theories of citizenship, and Aboriginal
theories of belonging, you begin to understand the roots of our approach toward
immigration. Of course, it breaks down from time to time. Of course, there are things
of which we need to be ashamed. Of course, there are a wide range of problems. But
that is a separate discussion. These problems are distinct from the general line of
thinking which led us to our modern approaches to immigration and citizenship. Our
modern approaches are based on a non-Western model of civilization, a model which
is non-linear and non-rational. Note the term non-rational, as opposed to irrational.
This permits the use of a circular approach, an aracial or non-racial approach.
Remember, it is the Europeans who brought the idea of race here and imposed it. The
idea of the circle is based on concepts of family, community, and place. And the circle
is based on what today we would call a civilization of minorities. That is to say,
groups living separately and together overlapping and happily engaging in what one
might call a multiple personality order.
When you publish a book, you are never quite sure what people will focus on.
When A Fair Country came out, people immediately focused on the phrase that we
are a mtis nation, a civilization inspired by Aboriginal ideas.27 Suddenly it was as if
the phrase mtis nation had always existed. Indeed, it had always existed in our
collective unconscious. And now I have begun hearing all across the country people
using that phrase in their daily conversation. It works because it describes the Canada
of today. But that is only so because it also describes the Canada of our past. I am not
simply referring here to the mixture of peoples or the mixture of ideas. What I am
referring to is our non-Western approach toward how to build a society.
23 Statistics Canada, 2006 Census: Immigration in Canada: A Portrait of the Foreign-born
Population, 2006 Census: Highlights, online: Statistics Canada
1,110,000 immigrants came to Canada from 1 January 2001 to 16 May 2006. Assuming immigration was
relatively constant, the numbers come out to approximately 210,000 people per year).
24 Ibid.
25 Bryan C. Baker, Trends in Naturalization Rates, Fact Sheet (December 2007), online: U.S.
Department of Homeland Security
26 Betty de Hart, Recent Trends in European Nationality Laws: A Restrictive Turn? (Brussels:
European Parliament, 2008), online: European Parliament
based on Denmarks naturalization rate of 3.4 per cent, Austrias rate of 2.6 per cent, and the
Netherlands rate of 11 per cent).
27 John Ralston Saul, A Fair Country: Telling Truths About Canada (Toronto: Viking Canada, 2008).
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you would find that Justice Vickers has written a very interesting preface:
[Vol. 54
If you were to look at the 2007 Tsilhqotin Nation case that I mentioned earlier,
Canadas multi-cultural society did not begin when various European nations
colonized North America. Rather, multiculturalism on this continent has its
genesis thousands of years ago with the receding of the last great ice age. …
Todays modern, multi-cultural communities seldom, if ever, look back at the
Aboriginal roots of Canadian diversity. The evidence in this case has provided
me with the opportunity to acknowledge the multi-cultural roots of our
Canadian culture; roots to be honoured and respected.28
There is one other factor that warrants attention. As I pointed out, we constantly
marginalize the role of Aboriginal peoples through the politics of pity.29 Of course,
there are problems. But it would be difficult to think of any other group in Canada
which has shown such resilience, such cultural strength. This strength can be seen at
its most basic levelfor example, in numbers. When the Europeans arrived, it is
generally estimated that there were over two million Aboriginals.30 In the latter part of
the nineteenth century their population plummetedlargely because of disease and
serious economic collapseto under one hundred and seventy-five thousand.31 But
now its back up to 1.6 million. It is on its way to 1.7 million and no doubt to 2
million.32 This is wonderful news because it represents a further strengthening of the
senior pillar in the foundation of this country.
If you look at the way this is described by journalists and academics, you will be
horrified to realize that most of this successful population rebound is described as a
problem. What are we going to do about this large number of children? What are we
going to do about crowding in schools and in houses on reserves? The answer to
those questions is that we should be getting on with it. We have been offered a
remarkable opportunity to see the Aboriginal people of Canada rebound not simply
culturally and in educational terms, but also in straight population terms. We should
be happy about that and as fast as possible support the creation of good housing and
education systems which will work. Very few countries get a second opportunity to
get things right. In that sense, we are very lucky.
28 Supra note 9 at para. 1.
29 Alfred, supra note 15.
30 Dickason, supra note 3 at 63.
31 Ibid. at 366.
32 Statistics Canada, Aboriginal Ancestry (10), Area of Residence (6), Age Groups (12) and Sex (3)
for the Population of Canada, Provinces and Territories, 2006 Census20% Sample Data (Statistics
Canada catalogue no. 97-558-XCB2006012), online: Statistics Canada
permanent officers).
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Canadian Rangersthe one truly Northern forcebut to formalize them as a
Regiment with Inuit and other Northerners in its officer-level leadership.
Our latest approach to Canadian sovereignty in the Arctic is very Southern in its
conception. This is hardly surprising. It comes from a population of which only a tiny
percentage has actually seen the Arctic.
It is not surprising then that our claim to Arctic sovereignty is based to a great
extent on nineteenth-century English explorersa not very bright group who spent a
lot of time trying to find a way through the Arctic to the other side. In other words,
they were not actually interested in being here; they wanted to go somewhere else.
But while they were stuck in the ice, because they didnt listen to advice, they took
the few seconds it required to claim the Arctic for the Queen. Later on, Canada got it
from the Queen. Now, I am sure that this room full of lawyers would agree with me
that this does not sound like a very good claim. However, we have tens of thousands
of Inuit living in the Arctic who are Canadians, and who have been living there for
thousands of years. That sounds like a good claim. In other words, it is ours because
we live there. Are we using that argument? A little bit, but not as a primary approach.
Why? Probably because we instinctively do not want to base our sovereignty on
Aboriginal people. There is a sense deep within our political structures that we might
risk something if we were to give too much credit or importance to Aboriginals
because that would mean we would be admitting their importance and the primacy of
their influence. We would rather risk our actual sovereignty in the Arctic on a second-
rate claim based on second-rate English explorers. At this very moment, your taxes
are being spent looking for Franklins ships.49 Now who would want to know where
Franklins ships were? He was a complete failure. He got his men killed because of
his mediocrity and unwillingness to listen. Your money is being spent on the basis
that somehow if we found these ships it would, Im not quite sure how, strengthen our
claim.
The second part of our claim is based on the law of the sea. We did quite well
with that approach over the tepid shores of Canada. Why did we do well? Because
the law of the seaa Dutch lawis based on European principles which argue that
you can own land but water is a place which is crossed by enemies. The law of the
sea found its origins in the distance which someone on land could shoot a cannon ball
across water in order to prevent the passage of enemies. With the expansion of
technology, the distances have increased from a few hundred metres to a few hundred
kilometres.50
49 Fergus Fleming, In Franklins Footsteps Ottawa Citizen (8 October 2008) A19.
50 A states territorial sea may extend up to twelve nautical miles (roughly twenty-two kilometres)
from its coast. A states exclusive economic zone may extend up to two hundred nautical miles
(three hundred and forty kilometres) from its coast: Convention on the Law of the Sea, 10 December
1982, 1833 U.N.T.S. 396, arts. 3, 57, 21 I.L.M. 1261 (entered into force 16 November 1994).
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If you went to the Arctic and asked any Inuk, what is the relationship between
land and ice/water? they would tell you that water and ice join land together. It is not
very different from the Aboriginal principles which led to the Laurentian theories of
Canada written by Harold Innis.51 So, in the European tradition water divides land.
Rivers divide opposing enemies. But in Canada, the history of rivers and water is one
that links land and brings together both friends and people doing business. In the
Arcticthe most extreme example of this approachif you want to go from one
village to another you get off the land as fast as you can and get onto water or ice. In
other words, water and ice create a friendly joining together of landthe precise
opposite of the law of the sea. We are using a law which is supposedly an
international law, but in actuality is a temperate-climate, European law, in order to
defend our position in the Arctic. You can see that there is some deep contradiction
within that approach.
Wouldnt it be interesting if you were to take those ten women and two men who
are the Inuit lawyers of Nunavut, perhaps led by former Premier Paul Okalik, and
send them out onto the world circuit to explain Canadian sovereignty from the Inuit
legal point of view?52 Of course, that is an oral legal point of view. But the Supreme
Court has already established the importance of orality. In fact, the insistence upon
the orality of our legal principles would be a very interesting way to suggest the
originality of our approach toward sovereignty in the Arctic. In any case, would it not
be a fascinating and powerful intervention in international law to send these young
lawyers out in order to make the argument for water and ice joining land together? I
can tell you that it would cause confusion in many quarters and dismay in others at
the international level. I can also tell you that from that moment on people would talk
about Canada on a regular basis with fascination, because originality produces
fascination and fascination produces respect.
51 Harold A. Innis, The Fur Trade in Canada: An Introduction to Canadian Economic History
(Toronto: University of Toronto Press, 1999).
52 Its worth noting that as this lecture goes to press, women now occupy the positions of
Commissioner and Premier of Nunavut as well as Mayor of Iqaluit.
