Why Is It So Difficult to Talk to Each Other?

Alan C. Cairns*

Since 1982, we have been grappling with the
multinational reality that coexists with the historic
definition of Canadians as a federal people. Working
this new constitutional world is difficult because com-
peting nationalisms –
in Quebec, of Aboriginal peo-
ples, and the inchoate nationalism of the “Rest-of-
Canada” –
transform the intellectual and emotional
climate of our encounters with each other.

Institutional barriers and nationalist ideologies
inhibit reasoned discussion of our constitutional future.
The Rest-of-Canada has no one with authority to speak
for it, and Quebeckers are being conditioned to believe
that a Canadian civic identity frustrates their self-
development and that sovereignty is inevitable. On
another front, non-Aboriginals are having difficulty re-
sponding to Aboriginal nationalism, powerfully ex-
pressed in recent decades. We are no longer, if we ever
were, a community of discussion. We are suffering, as
well, from a crisis of representation.

The disrespect historically accorded Aboriginal
peoples and the inability to accommodate Quebec na-
tionalism have reduced the allegiance of these com-
munities to the country as a whole. The pressures for
solidarity within competing nationalist communities
deepen the differences between them, and impede the
discovery and stimulation of commonalities that would
strengthen citizenship ties across the country. Our sur-
vival can no longer be assumed.

Depuis 1982, nous devons faire face A une r~alitd
multinationale qui coexiste difficilement avec
la
definition de (> en tant que peuple f~d&6
Ce nouveau monde constitutionnel pose problbme, car
divers nationalismes –
au Quebec, chez les peuples
amrindiens, en plus du nationalisme naissant du
*Reste-du-Canada>> –
transforment le climat intellec-
tuel et 6motif de nos rencontres.

Les barri~res institutionnelles et les ideologies
nationalistes empchent une discussion raisonnee de
notre future constitutionnel. Le <,Reste-du-Canada> n’a
pas de porte-parole pouvant le representer avec au-
torit6, alors m~me que les qu becois sont conditionn~s
A croire qu’une identit6 civique canadienne entrave leur
d~veloppement et que la separation est in6vitable. Sur
un autre front, les non-amxrindiens 6prouvent de la
difficult6 A r6pondre au nationalisme am6rindien, le-
quel s’est fortement affirm6 au cours des demi~res d6-
cennies. Nous ne sommes plus, si meme nous l’avons
jamais
t6, une communaut6 de dialogue. Nous souf-
frons Agalement d’une crise de representation.

Le peu de respect accord6 historiquement aux
amdrindiens, de m~me que l’incapacit6 A s’adapter au
nationalisme qudbecois, ont conduit h une perte
d’all6geance envers le Canada au sein de ces com-
munaut~s. Le besoin de solidarit6 h l’int~rieur de com-
munaut~s nationales en comp&ition les unes contre les
autres approfondit les diffdrences et entrave la recher-
che et le d~veloppement d’6lments communs aptes a
renforcer les liens civiques b travers le pays. Ds lors,
notre survie ne peut plus Etre tenue pour acquise.

“Law Foundation of Saskatchewan Chair, College of Law, University of Saskatchewan. This paper
would have been much better had I paid more attention to the suggestions of the following col-
leagues: David Cameron, Jamie Cameron, Paul Fox, Lawrence Hanson, Peter Russell, Grace Skog-
stad, Andrew Staples, Melissa Williams and Nelson Wiseman. An abbreviated version of the conclud-
ing comments was published in The New Federation (July/August 1996). An earlier version of Part
L.A appears in Quebec-Canada: What Is the Path Ahead? (Ottawa: University of Ottawa Press,
1996), edited by John Trent, Robert Young and Guy Lachapelle.

McGill Law Journal 1997
Revue de droit de McGill
To be cited as: (1997) 42 McGill L.J. 63
Mode de r6f6rence : (1997) 42 R.D. McGill 63

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[Vol. 42

Introduction

I. Quebec- Canada- Rest-of-Canada

A. How Uncertainty over a Shared Future Shapes Present Discussions
B. The Conflict of Nationalisms

1. The Rest-of-Canada: The Empty Chair at the Table
2. The Quebec Referendum Process: A Biased Conversation
3. Summary of the Quebec-Canada Debate

I1. Aboriginal Peoples
A. A New Narrative
B. The Contemporary Reticence of Non-Aboriginals
C. Towards a Shared Discourse

Ill. The Crisis of Representation

A. Who Speaks for Whom?
B. Nationalist Rhetoric
C. Summary of the Crisis of Representation

IV. Conclusion

A. The Quality of Our Constitutional Conversation
B. Why Is It So Difficult to Talk to Each Other?

1997]

A.C. CAIRNS – WHY IS IT SO DIFFICULT TO TALK TO EACH OTHER?

Introduction

The co-existence of several nations under the same State
is a test, as well as the best security of its freedom. It is
also one of the chief instruments of civilization … The
combination of different nations in one State is as neces-
sary a condition of civilized life as the combination of men
in society … A State which is incompetent to satisfy differ-
ent races condemns itself ‘

Whether we, as Canadians, can meet Lord Acton’s test is an open question. We
are in a period of profound transition –
to what, we do not know. We do know, how-
ever, that an old constitutional order is under attack, and that its survival cannot be
taken for granted. The challenges are many, but the most important is the challenge
presented by Quebec and Aboriginal nationalisms.2 Quebec nationalists of all kinds,
and sovereignists in particular, seek to rearrange the jurisdictions north of the United
States to enhance the recognition of a distinctness they believe is inadequately valued
within Canada. Aboriginal nationalists seek a partial exit, via self-government, from a
society that has historically stigmatized their sociocultural identities. In a period of
transition such as this, the need for political talk across internal nationalist divides is
overwhelming. Unfortunately, these rival nationalisms have erected numerous road-
blocks on the road to mutual understanding and civil dialogue.

Canadians have never found it easy to confront the contentious issues of our
constitutional existence. We developed and practiced a culture of avoidance that al-
lowed us to put off, until some future time of ripeness, answers both to questions of
who we were as a people and to the location of sovereignty.’ We did not take control
of our judicial future until 1949′ We did not take complete control of our amending
procedures until 1982.’ We were perhaps unwittingly following Michael Foley’s
shrewd admonition in The Silence of Constitutions that a wise people knows which
problems can be addressed and which should be avoided The raising of the latter

‘Lord Acton, Essays on Freedom and Power (Glencoe, Ill.: Free Press, 1948) passim, cited in P.E.

Trudeau, Federalism and the French Canadians (Toronto: Macmillan, 1968) at 179.

‘A friendly critic challenged my application of “nationalism” to Aboriginal peoples on the ground
that Aboriginal ambitions fall far short of complete statehood. I agree. However, the label “nation” is
ubiquitous, the language of nationalism – nation to nation –
is recurrent, and the consequences of
nationalism –
the pleas for solidarity and the negative views of the “other”, the majority society
which stands in the way –
are easily observed. “Nation”, “nationalis” and “nationalism” are in my
view, therefore, appropriately applied to Aboriginal peoples.

3 For a more elaborate discussion, see A.C. Cairns, Reconfigurations: Canadian Citizenship and
Constitutional Change, D.E. Williams, ed. (Toronto: McClelland & Stewart, 1995) c. 3 [hereinafter
Reconfigurations].

“See An Act to Amend the Supreme Court Act, S.C. 1949 (2d. Sess.), c. 37, s. 3, amending R.S.C.

1927, c. 35.

‘See Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, Part V.
6 M. Foley, The Silence of Constitutions: Gaps, “Abeyances”, and Political Temperament in the

Maintenance of Government (New York: Routledge, 1989) at xi-xiii.

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highlights and politicizes areas of profound disagreement, but moves us no closer to
their resolution.

Our capacity to leave such troubling issues alone depends on the existence of an
evolving status quo, that is, a living constitution acceptable to all the major players. In
Canada, that capacity was twice shattered: initially by the federal government’s 1969
white paper on Indian policy’ and its rejection by the Indian people, and then again by
the Pard Qu6b6cois (“P.Q.”) election victory in 1976 (followed by its loss in the 1980
referendum and the subsequent enactment of the Constitution Act, 1982).’ These bru-
tal episodes in Canadian history signalled and catalyzed a conflict of nationalisms that
afflicts us still; they also ended the tacit agreement that an imperfect present was pref-
erable to pursuing brighter futures that might or might not be attainable.

For Pierre Elliot Trudeau, full citizenship, not anomalous and retrogressive spe-
cial status, was the way to a brighter future for the Indian people. They rejected that
bold and unilateral suggestion (about which they had not been consulted) and pre-
sented their countervision of “self-government”, a vision that implied a positive spe-
cial status in the future. In this search, they were joined by the Inuit and the M~tis,
defined in the Constitution Act, 1982 as belonging to the newly minted constitutional
category “aboriginal peoples of Canada”. For the P.Q., the better future was an escape
from the shackles of federalism to the superior status of “sovereignty-association”.
Trudeau’s overall competing vision for the country he sought to strengthen focused
on the Charter” which, he hoped, would dilute provincialism, weaken Quebec na-
tionalism and strengthen the pan-Canadian community by basing it on a coast-to-
coast citizenry of rights-bearers.

The Constitution Act, 1982 –

a compromise agreement that brought together the
federal government’s Charter and the “Gang of Eight” amending formula” – was an
incomplete answer to Quebec and Aboriginal nationalisms, institutionally embodied
in the P.Q. and the emerging Aboriginal organizations.” The Quebec government’s
rejection of the constitutional package meant that one of the two founding European
peoples was not officially on-side. The Aboriginal peoples, who had in fact achieved
a significant breakthrough by obtaining greater constitutional recognition, neverthe-
less saw their gains as only the beginning. The commitment in the Constitution Act,
1982 to hold a constitutional conference to define protected Aboriginal rights under-
lined the unfinished nature of the 1982 Aboriginal settlement.”

7Department of Indian Affairs and Northern Development, Statement of the Government of Can-

ada on Indian Policy, 1969 (Ottawa: Queen’s Printer, 1969).

8 Constitution Act, 1982, supra note 5.
9 Ibid., s. 35(2).
‘0 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, ibid. [hereinafter

Charter].

“See A.C. Cairns, Charter versus Federalism: The Dilemmas of Constitutional Reform (Montreal:

McGill-Queen’s University Press, 1992) at 86-90.

” Some of these Aboriginal organizations are the Assembly of First Nations, Native Council of

Canada, Metis National Council, Inuit Tapirisat, and Native Women’s Association of Canada.

” See Constitution Act, 1982, supra note 5, s. 37(2), as rep. by ibid., s. 54.

1997]

A.C. CAIRNS- WHY IS IT So DIFFICULT TO TALK TO EACH OTHER?

From a current perspective, it is evident that the Constitution Act, 1982 weakened
the British cast of our constitutional inheritance and sought, via the Charter, to estab-
lish a new Canada of rights-bearing citizens coast-to-coast. It was, nevertheless, an
inadequate response to our struggling transition from a federal to a multinational
people. Since 1982, we have been grappling with the multinational reality that coex-
ists with the historic definition of Canadians as a federal people. We have failed to
find a synthesis between the federalism that provides –
along with parliamentary
government and the Charter –
the institutional mirror in which we are supposed to
see ourselves, and the competing view that defines us in terms of distinct national
communities that line up only imperfectly with our federalist definitions.

Working this new constitutional world is difficult, not only because multinational
and federalist definitions of community do not coincide, but because competing na-
tionalisms transform the intellectual and emotional climate of our encounters with
each other. The coexistence of rival nationalisms within Canada gravely undermines
our capacity to discuss where “we” should go. Nationalism raises the stakes, escalates
emotional language and weakens empathy. It increases the chances of failure by re-
ducing the capacity for candid exchanges and for compromise among citizens and
governments.

We know how constitutional debate is structured by our constitutional arrange-
ments: how the amending formula gives pride of place to governments as the official
actors in implementing change; how this governmental monopoly is weakened by the
requirement of legislative resolutions,” which provide opportunities for private voices
and interests to be heard; how the Charter has given the general citizenry a personal
stake in the constitutional order, which has driven us along the path to referenda; how
specific Charter clauses, and those elsewhere in the Constitution Act, 1982, have gen-
erated a host of new constitutional actors including women’s groups,” Aboriginal
peoples,” the disabled,” official-language minorities,’8 and many others.’9 These
groups have challenged the hegemony in constitutional matters formerly enjoyed and
taken for granted by governments.

These constitutional factors structure our constitutional debate; they markedly in-
fluence the agenda for discussion, the arenas where discussion occurs, and who the
participants are. These are all taken for granted in this paper, which focuses on an-
other set of phenomena that also structures the debate and interacts with our constitu-
tional arrangements –
internal nationalisms and the competition among them. Inter-
nal nationalisms refer, in the first instance, to the Quebec and Aboriginal nationalisms

“See ibid., ss. 38,41-43.
See Charter, supra note 10, s. 28.
‘6 See ibid, s. 25. See also Constitution Act, 1982, supra note 5, s. 35.
‘7 See Charter, ibid., s. 15.
, See ibid., s. 23.
,9 See ibid, s. 15. For a discussion of the constitutional activity of these new actors, see Reconfigu-
rations, supra note 3, c. 4; see also A.C. Cairns, Disruptions: Constitutional Struggles, from the
Charter to Meech Lake, D.E. Williams, ed. (Toronto: McClelland & Stewart, 1991) c. 4 [hereinafter
Disruptions].

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that challenge the status quo, and to the inchoate nationalism of the “Rest-of-Canada”
that is slowly crystallizing as an anticipatory response to the possible breakup of Can-
ada. The general focus of this paper is on the contribution of internal nationalisms to
our difficulty in agreeing on a constitutional future; the more specific focus is the an-
tecedent difficulty we have in talking civilly to each other in a climate where compet-
ing nationalisms struggle for living space.

I. Quebec – Canada – Rest-of-Canada

A. How Uncertainty over a Shared Future Shapes Present

Discussions

In normal times, membership in the same polity implies that the citizenry will
share a future civic togetherness. In such circumstances, interpersonal, intergroup and,
in the Canadian case, federal-provincial behaviour is governed by two considerations:
civic camaraderie and instrumentalist logic.

The assumption of continuing shared citizenship means rejecting the kind of be-
haviour that is appropriate for foreigners, strangers or enemies. When the going is
good, this can produce a civic camaraderie or solidarity based on the acceptance of
shared rules applicable to an ongoing community, even when there are passionate
conflicts over
their most ideal form, exemplify
“fraternity”.

issues. These relations,

Shared citizenship also encourages a cool instrumentalist logic driven by calcula-
tion rather than emotion. It is sensible to pull one’s punches and engage in positive
exchanges with present colleagues, be they citizens or governments, when they will
also be future colleagues. Reciprocities between individuals, groups and provinces
occur over time. They presuppose the continuity of the nation, defined in Ernest
Renan’s classic language as “a great solidarity, built on an awareness of the sacrifices
we have made in the past, and those which we stand ready to make in the future … It
can be summed up in the present by one tangible fact: the consent, the desire, clearly
expressed, to continue living together.”2’

2O See S.V. LaSelva, The Moral Foundations of Canadian Federalism: Paradoxes, Achievements,
and Tragedies of Nationhood (Montreal: McGill-Queen’s University Press, 1996) at 22-27 for a help-
ful discussion of fraternity. LaSelva’s book is reviewed in this issue (see J. Whyte, Book Review
(1997) 42 McGill LJ. 189).

2″ Remarkably, this quote was part of a full page advertisement by Morris & Mackenzie Inc.
(insurance brokers) devoted to a lengthy extract from Renan placed just prior to the referendum in
The [Toronto] Globe and Mail (28 October 1995) B3. The original of Renan, in French, reads:
Une nation est donc une grande solidarit6, constitufe par le sentiment des sacrifices
qu’on a faits et de ceux qu’on est dispos6 A faire encore. Elle suppose un pass6; elle se
rnsume pourtant dans le prdsent par un fait tangible: le consentement, le d~sir claire-
ment exprim6 de continuer la vie commune (E. Renan, Qu’est-ce qu’une nation?/Whzat
Is a Nation?, trans. W. Romer Taylor (Toronto: Tapir Press, 1996) at 48).

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A.C. CAIRNS – WHY IS IT So DIFFICULT To TALK TO EACH OTHER?

Contemporary Canada is far removed from Renan’s vision. When future civic to-
getherness can no longer be taken for granted, the fraternal bond is weakened and a
different calculus emerges. A new question surfaces: How will we treat each other if
we do become foreigners?

Sovereignists prepare Quebeckers for an independent future by portraying the
past not as a record of joint achievement with their partners, but as an unending his-
tory of rebuffs, humiliations and failures by the Rest-of-Canada to recognize the dis-
tinct nature of Quebec society.” The possibility that this historical trend could change
within a renewed form of federalism is dismissed by Lucien Bouchard, who eagerly
awaits the time when “notre partenaire sera alid au bout de son impuissance A recon-
naitre notre rdalit6 de peuple.”‘ The sovereignist political elite prepares for that fu-
ture, dropping hints into public debate about how the Rest-of-Canada will be treated
by a sovereign Quebec. ‘

From the sovereignist perspective, therefore, Canada is already seen as a foreign
country. Future relations are viewed from the perspective of Quebec’s self-interest.
What will happen outside Quebec is relevant only to the extent that it will have an ef-
fect in Quebec. This attitude results in a negligible concern for “Canada-outside-
Quebec” as such. If the pro-sovereignty (“Yes”) side had carried the 1995 referen-
dum, the P.Q. government would have been ready to launch a massive assault on an
unprepared Ottawa, designed, according to press accounts, to humble Ottawa and to
“bring the federal government to its knees”.’

In 1994, Premier Mike Harcourt of British Columbia asserted that should Quebec
separate, “we wouldn’t be the best of friends; we’d be the worst of enemies…. There
will be great bitterness and a nasty split.” Premier Roy Romanow of Saskatchewan
supported Harcourt’s tough position, which “tapped into the sentiment of a lot of
people in Western Canada.”‘
In the spring of 1994, Reform Party leader Preston

2” See A. Picard, “Parizeau Sees Federalist Win as Erasing Gains” The [Toronto] Globe and Mail

(12 September 1995) Al.

” “Bouchard au Parti qubecois” Le Devoir [Montrial] (22 November 1995) A7, reporting on the

speech announcing his willingness to be a candidate for the P.Q. leadership.
2, Thus Jacques Parizeau suggested that if negotiations on partnership dragged on, Quebec might
simply delay sending its share of interest payments on the debt to Ottawa (see R. Srguin & R.
Mackie, “Quebec Won’t Delay Exit, Premier Says” The [Toronto] Globe and Mail (21 October 1995)
A4). Bouchard laid out the strategy even more graphically by asserting, according to a reporter, that
Canada will have “to beg Quebec to assume its share of the national debt,” which will be leverage in
negotiating an economic partnership (T. Thanh Ha, “Canada Will ‘Beg’ for Talks: Bouchard” The
[Toronto] Globe and Mail (28 September 1995) Al).

Sdguin, “Separatists Were Poised to Humble Ottawa” The [Toronto] Globe and Mail (9 No-

vember 1995) Al.

26 M. Cemetig, “Harcourt Talks Tough on Quebec” The [Toronto] Globe and Mail (17 May 1994)
Al.27D. Roberts, “Quebec Hot Topic for Western Premiers” The [Toronto] Globe and Mail (18 May

1994) A2. Harcourt reiterated his tough position more than a year later, stating that “[t]he people of
British Columbia would be very angry … That anger would be very real, very manifest” (W. Cara-
gata, “He Said, They Said” Maclean’s (4 September 1995) 11).

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Manning addressed to the prime minister twenty “hard questions being asked by rank
and file Canadians regarding Quebec’s potential separation from Canada”.” All sen-
timents, based on past togetherness, were cast aside in the Reform Party’s subse-
quently published draft answers. They displayed an unremitting toughness guided by
the self-interest of Canadians outside Quebec.’

even if only of what might be –

The inhabitants of both the Rest-of-Canada and Quebec are being conditioned for
a future in which they are, at best, strangers rather than each others’ fellow citizens;’
these anticipations –
influence present behaviour.
Suspicion increases. Trust erodes. Threats are uttered. Bargaining is designed to score
points, not to reach agreement. Every slip by the other side –
is
pounced upon, distorted if necessary, and broadcast to the public. As the assumption
that we will continue to be one civic people weakens, the common constitutional dis-
course, which is the ideological expression of our shared civic allegiance, begins to
crumble. Exchanges between sovereignists and federalists become, inter alia, vehicles
for escalating threats.

real or concocted –

In brief, as the breakup of Canada becomes a serious possibility, the idea of
membership in a common society, and thus of civil discussion among citizen equals,
begins to erode. The catalyst is not an increasing divergence of values, but of identity
a recognition that our membership in the same civic community can no longer be
–
taken for granted.”

Of course these tendencies do not yet dominate the way in which we view each
other. They coexist with the ongoingness of the existing system. Even in Quebec a
complete break from Canada is not sought by the majority. The point nevertheless
remains that on both sides, inside and outside Quebec, a possible future in which we
no longer belong to the same country is becoming part of popular consciousness. This
possibility negatively affects how we relate to each other even now, when formally
we are still one people. A degree of reserve, tension and suspicion plays an increas-
ingly prominent role in our encounters –
a tendency greatly stimulated by the results
of the 1995 referendum in Quebec.

28 Draft of Open Letter of P Manning to Prime Minister I Chrtien (8 June 1994).
29 See Reform Party of Canada, “Reform Responses to the Twenty Questions Posed to the Prime
Minister on June 8, 1994” (mimeo., draft) [unpublished]. See also S. Delacourt, “Reform’s Opposi-
tion Bid Stymied” The [Toronto] Globe and Mail (22 November 1995) A4, reporting on Manning’s
statements: “‘Let’s lay it on the line’ as to what separation really means, from Canada’s perspective…
‘I found a stiffening on that. Let’s lay out the Canadian position. They’re tired of having this position
defined by separatists who don’t understand the aspirations of the rest of the country.”‘

‘0 Paul Martin, minister of finance, informed Quebeckers of the benefits they would lose on inde-
pendence, for “countries are not in the business of doing favours for foreigners” (cited in A. Freeman,
“No Favours, Martin Tells Quebec” The [Toronto] Globe and Mail (27 September 1995) Al).
3 What we now see in Quebec-Canada relations is the antithesis of what happened in 1949, when
Newfoundland joined Canada. Welfare-state programs were immediately extended to encompass this
new group of Canadian citizens. The new identity of Newfoundland as part of the Canadian com-
munity triggered a process of mutual civic empathy –
a positive response to the coming together of
formerly separate peoples.

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A.C. CAIRNS – WHYIS ITSO DIFFICULT TO TALK TO EACH OTHER?

B. The Conflict of Nationalisms

The developing tendency in Quebec-Rest-of-Canada encounters to treat the
“other” as the stranger it might become is not the only impediment to a fruitful consti-
tutional conversation. Another is the muffled voice of the Rest-of-Canada –
the
constitutional entity that is supposed to emerge alongside a sovereign Quebec.

1. The Rest-of-Canada: The Empty Chair at the Table

The survival of Canada has been a question mark since the initial P.Q. victory in
1976. Logically, discussion of and preparation for the alternative futures we face en-
tail four actors –
federalists and sovereignists within Quebec, and federalists and
“Rest-of-Canada sovereignists” outside Quebec. Federalists, within and outside Que-
bec, pursue the common objective of a renewed federalism, although agreement on its
content has thus far eluded them. Sovereignists in Quebec, however, do not have a
clear counterpart outside Quebec busily engaged in preparing non-Quebeckers for the
possibility that they too might have to go it alone. The Rest-of-Canada, the residual
Canadian survivor of Quebec’s possible departure, enjoys only a shadowy existence,
and thus far has been incapable of preparing for the future that might be visited on it.
It is the empty chair at the bargaining table.

The structural reason for this absence of voice and incapacity for introspection is
obvious. The Rest-of-Canada has no institutional or constitutional existence, and thus
has no one with authority to speak for it. It is headless and therefore officially voice-
less. The partner with whom a sovereign Quebec would seek to share economic and
political space exists only as an anticipation –
as a possibility. The nine remaining
provincial and two territorial governments do not constitute, and cannot speak for, the
Rest-of-Canada. They represent territorial particularisms and would not, simply ag-
gregated, produce a whole. Further, should Quebec’s sovereignists attain their goal,
some of the other provinces might be tempted to consult and follow their own self-
interest and go it alone, or regroup with their provincial neighbours. The federal gov-
ernment, of course, does not and cannot speak for “Canada-without-Quebec” at the
same time that it speaks for a Canada that includes Quebec.

Until the 1995 referendum, the strategic reason for the silence of the Rest-of-
Canada had been equally inhibiting. Public preparation for the possible breakup of
Canada had been resisted on the grounds that it would legitimate and give momentum
to the Quebec sovereignist project. The unpreparedness of the Rest-of-Canada was
therefore reasoned, conscious and deliberate. This was especially so for the federal
government –
for it to speak for Canada-without-Quebec would have implied that it
had lost the battle with Quebec sovereignists and that it would only survive in a trun-
cated form, if at all.

While preparing for an unwanted future might very well have been counterpro-
ductive in the short-term, non-involvement has not been costless. First, the overall
quality of the debate has been worsened by the absence of one of the major possible
future actors. Second, the bargaining position of federalists outside Quebec has been

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damaged by their inability to explore alternative visions of Canada-without-Quebec.”
Third, the unpreparedness of the Rest-of-Canada, for its own future and for its re-
sponse to a Quebec vote to separate, has contributed to a lack of realism in Quebec
about possible responses.” Fourth and most importantly, Canadians outside Quebec
have been denied the self-education in alternative futures that Quebeckers, with the
imperfections just noted, have undergone over the past two decades.

Two provincial referenda (1980, 1995), living under P.Q. governments,’ major
inquiries (B6langer-Campeau, Allaire),” a scholarly community sympathetic to sov-
ereignist aims,”‘ and a nationalist culture7 have all contributed to Quebec’s self-
education. The equivalent activity outside Quebec prior to the 1995 referendum was
sparse, consisting of a handful of books published by academics. The one significant
exception was the high profile performance by the Reform Party. Yet, the Reform
Party’s approach –
focuses on the po-
tential federal response to Quebec and does not address the larger question of Can-
ada’s future without Quebec. 9

typical of what has been termed “Plan B”‘ –

The socialization of the Rest-of-Canada into a sense of separate selfhood, pre-
pared for a future without Quebec, has therefore been negligible. Most of the consti-

” Quebec federalists can always remind their bargaining partners in Ottawa that there is a tougher,
sovereignty-seeking actor waiting in the wings. Federalists outside Quebec, speaking for all of Can-
ada, have had no such capacity, no backup position. This may explain the oft-noted weakness of the
federal government at the bargaining table in both the Meech Lake and Charlottetown rounds, Fed-
eralists outside Quebec have been incapable of informing Quebec sovereignists who their counterpart
would be, how Canada-without-Quebec would be constituted and how it would behave should Can-
ada fracture.

3 This weakness was especially pronounced prior to the 1995 referendum. Indeed, one of the more
bizarre aspects of our recent constitutional discussion has been that the PQ., whether in government
or in opposition, has been the chief interpreter of how Canada or the Rest-of-Canada would survive
and relate to an independent Quebec. Not surprisingly, these representations have been marred by in-
sensitivity and shaped by self-interest. A poorly informed Quebec electorate is one major conse-
quence and a second, depending on how much of what it says is believed, is a sovereignist elite
whose poorly grounded predictions jump from desire to probability.

4The P.Q. has been in power in Quebec between 25 November 1976 and 12 December 1985, and
since 12 September 1994 (K. O’Handley & C. Sutherland, eds., Canadian Parliamentary Guide
(Toronto: Gale Canada, 1996) at 928).

” See Quebec, Report of the Commission on the Political and Constitutional Future of Quibec
(Quebec: National Assembly, March 1991) (Co-chairs: M. Blanger & J. Campeau); A Qudbec Free
to Choose: Report of the Constitutional Committee of the Quibec Liberal Party (Quebec: Quebec
Liberal Party, 1991) (Chairman: J. Allaire).

” See e.g. A.-G. Gagnon & F Rocher, eds., Rdpliques aux ditracteurs de la souverainetd du Qud-

bec (Montreal: VLB Fditeur, 1992).

” See R. Handler, Nationalism and the Politics of Culture in Quebec (Madison: University of Wis-

consin Press, 1988).

” Popularized by G. Gibson in Plan B: The Future of the Rest of Canada (Vancouver. Fraser Insti-

tute, 1994). See also more recent sources listed infra note 44.

” See Draft of Open Letter, supra note 28; Reform Party of Canada, supra note 29. See also P
Manning, “Awakening the Sleeping Giant” (Address to the London Canadian Club, 2 November
1995) [unpublished].

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tutional introspection outside Quebec has been federalist in nature and aimed specifi-
cally at renewing Canada’s constitutional existence: Pepin-Robarts ‘
the process
leading to the Constitution Act, 1982, the Meech Lake debate,” the Spicer commis-
sion’ and the Charlottetown Accord.”3

Only recently, in the post-referendum climate, has the silence of the Rest-of-
Canada begun to attract attention. Jeffrey Simpson is not alone in seeing a need to get
ready for what had previously been unthinkable, namely, the breakup of Canada. In a
language now shared by many commentators, he argues that

[o]nly the stupid, the politically blind or those given to believe in hope over
experience would say that Canada should enter the next referendum as com-
pletely ill-prepared to articulate and defend its own self-interest as it was in the
October referendum … What we might call civic society outside Quebec is not
willing the next time to let itself be unprepared.”

The official response to Simpson’s plea has been and will likely continue to be
selective. True, the preparation outside Quebec for its possible exit is already superior
to the policy void that existed before the 1995 referendum. There seems to be more
in-house preparation than in the past, but that will do little to condition the citizenry of
the Rest-of-Canada for a future without Quebec. The overwhelming concentration
will be on the fairness of the process for determining the will of Quebeckers, the
terms of secession, and the process of bargaining following a “Yes” that is considered
legitimate.”‘ However, should such an event occur, several basic questions confronting
Canada-without-Quebec will not have been sufficiently examined. Will Canada, geo-
graphically riven by Quebec’s departure, survive as a single country? If so, with what
constitutional structure? Think tanks and individual academics will scratch the surface
of these issues, but no more. Governments will leave the question of the future of
Canada-without-Quebec and the possibilities of partnership unexamined until the last
minute. They are too embedded in the existing system to devote significant attention

‘ Canada, Task Force on Canadian Unity, A Future Together: Observations and Recommendations

(Ottawa: Canadian Government Publishing Center, 1979) (Co-chairs: J.L. Pepin & J.P. Robarts).

” See J. Webber, Reimagining Canada: Language, Culture, Community, and the Canadian Consti-

tution (Montreal: McGill-Queen’s University Press, 1994) at 125-62.

42 Citizens’Forum on Canada’s Future: Report to the People and Government of Canada (Ottawa:

Canadian Government Publishing Center, 1991) (Chairman: K. Spicer).

43 Canada, Consensus Report on the Constitution: Charlottetown (Final Text, 28 August 1992)
(Ottawa: Minister of Supply and Services, 1992) [hereinafter Consensus Report].

” J. Simpson, “The Liberals Wobble With Non-Answers to Reform’s Clear Questions” The
[Toronto] Globe and Mail (14 December 1995) A22. This extremely important development became
a new conventional wisdom almost overnight: see R. Gwyn, “The Old Canada is Gone Forever” The
[Toronto] Star (31 October 1995) A23; C. Black, “Abandon the National Effort to Accommodate
Quebec” The [Toronto] Globe and Mail (7 November 1995) A21; J. Simpson, “With No Clear
Thinking, Canada Was Ill Prepared for its Dismemberment’ The [Toronto] Globe and Mail (8 No-
vember 1995) A14. See also P.J. Monahan, M.L Bryant & N.C. Cot6, Coming to Terms with Plan B:
Ten Principles Governing Secession (Toronto: C.D. Howe Institute, 1996) for an elaborate and de-
tailed attempt to fill the gap identified by Simpson and others following Canada’s “near-death experi-
ence” on October 30, 1995.

‘ See e.g. Reference Re Secession of Quebec from Canada, [1996] C.S.C.R. No. 421 (QL).

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to a future they do not seek, especially when they fear that public attention to the
possibility of such a future might speed its arrival.

The focus on the terms of secession and on the immediate post-Yes bargaining
process, rather than on the reconstitution of Canada without Quebec, will be given
priority for two major reasons: (1) it would be the first task after a Yes victory, and (2)
establishing terms and a bargaining process can be seen as a deterrent to the momen-
tum of the sovereignists, emphasizing that the road to sovereignty-partnership will not
be an easy one. By contrast, preparing for the reconstitution of Canada-without-
Quebec is not only a more challenging task, but its undertaking –
in contrast to set-
ting terms of secession – offers encouragement to the sovereignists, an acceptance of
the historically inevitable.

Further, governing parties and their bureaucracies find it extremely difficult to
prepare simultaneously for such diametrically opposed outcomes as renewed federal-
ism and a reconstituted Canada-without-Quebec. The same inability to prepare for
antithetical futures weakened the PQ. government’s role in the renewal of Canadian
federalism after the 1980 referendum, when its representatives confronted the victori-
ous Pierre Trudeau at the bargaining table. Their preparation was limited to the vic-
tory they did not achieve. Demoralized and unprepared for the renewal of federalism
after their hopes for sovereignty-association had been dashed, their limited goals were
either to engineer a stalemate by blocking Trudeau’s constitutional amendments, or to
agree to only a minimal package that was non-threatening to Quebec.

Outside Quebec, in the twilight period when the old order still enjoys a formal
existence, official thinking is dictated by the existing constitutional structure of offi-
cial authorities –
provinces, territories and a Canadian government. The Rest-of-
Canada has no official existence, no institutional centre, no organized bureaucracy to
work for it, and as yet no citizenry outside Quebec that sees itself as belonging to any
country other than Canada.

Thus the discussion of alternative futures is frustrated. The conversation that does
take place, and particularly the official conversation, avoids one of the central ques-
tions –
the survival and constitutional nature of what is left behind by a departing
Quebec and its relations with Quebec. As a consequence, Canadians outside Quebec
will be lamentably unprepared for a future that may be visited on them, rather than
chosen. In this scenario, the sovereignist Quebec victors will also be unprepared, for
the predictability of their future hinges on knowledge of their putative partner’s iden-
tity and behaviour, and this is unknowable. Hence, the possibility of the partnership
they seek will also remain a question mark.

Should Canada break up, future historians will no doubt comment on the surpris-
ing paradox of how a wealthy, mature democracy with a plethora of governments and
a highly educated citizenry was almost completely unable to prepare for a shrunken
future that everyone knew was a serious possibility. The inability of the Rest-of-
Canada to speak to itself results in a simultaneous inability of Canadians outside Que-
bec to speak to Quebec. Thus the two partners that are supposed to coexist in some
form of partnership following a Yes vote are either almost completely incapable of
preparing for the future (Canada-outside-Quebec) or seriously limited in their capac-

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A.C. CAIRNS – WHY IS ITSO DIFFICULT TO TALK TO EACH OTHER?

ity to do so because of factors outside their control (Quebec). This is not a trivial
matter.

2. The Quebec Referendum Process: A Biased Conversation

Superficially, Quebec’s referendum process can be portrayed as a model of de-
mocracy. It was the site of an intense debate which aimed to inform Quebeckers about
the choices corpfronting them when they cast their referendum ballots. From a Cana-
dian perspective, however, the process was fundamentally flawed. Its fairness and the
quality of the debates it fostered depended not on the particulars of the referendum
machinery, but on the larger assumptions that lay behind it and that dictated the man-
ner of its use.

One of the most crucial considerations is who controls the wording of the ques-
tion. The construction of the recent referendum question in Quebec (and to a lesser
extent its 1980 predecessor) –
the electorate’s answer to which was to determine the
survival of a historic country – was the product of intensive polling and of what one
can only describe as shameless public discussion of the search for a perfect question. ‘
The 1995 referendum question was researched, framed and employed as an instru-
ment of partisan, nationalist political mobilization aimed to strengthen the bargaining
position of the Quebec government.” Once the strategic construction of the question
was completed, the Quebec government publicly proclaimed the referendum exercise
to be an example of consultative democracy in action. It was argued that the open,
democratic nature of the referendum obligated Canada to accept a “fifty-percent-plus-
one” outcome as definitive.

The law and politics of the Quebec referendum process take for granted that Ca-
nadians outside Quebec – whose future, according to the sovereignists, is to be de-
termined by the Quebec electorate’s response to a question carefully crafted by sov-

6In September 1994, Bouchard stated “[tihere is no way sovereignists will engage in a losing ref-
erendum” (E. Stewart, “Quebec Gone in ‘Next’ Vote – Bouchard” The [Toronto] Star (31 October
1995) A8). Later, he claimed that “the referendum question must be altered to find a winning for-
mula” (A. Picard, “A Chronology of Events Leading to Yesterday’s Vote” The [Toronto] Globe and
Mail (31 October 1995) A4). The next referendum, according to Bouchard, would be held “at the op-
portune moment, and one of the factors that will constitute the opportunity for a referendum will be
that it will carry” (H. Bauch, “I’ll Be Premier: Bouchard” The [Montreal] Gazette (22 November
1995) Al at A10).
4 See Monahan, Bryant & Cot6, supra note 44, for criticism of the 1995 question: “The question re-
ferred to a political and economic partnership with Canada, which was actually an extremely remote
possibility, so the wording was misleading in that it gave a false view of the conditions that were
likely to prevail following the achievement of sovereignty” (ibid. at 27). Further, eight months prior to
the referendum, 26 percent of Quebeckers thought a sovereign Quebec would still be a province of
Canada, and 27 percent thought it would still have M.P.’s in the House of Commons (see ibid. at 53,
n. 57). Only a few weeks prior to the referendum, nearly 30 percent of Yes voters believed a sover-
eign Quebec would still elect members to Ottawa, and another 20 percent of Yes supporters were un-
sure (R. Mackie, “No Side Keeps Lead in Referendum Poll” The [Toronto] Globe and Mail (6 Octo-
ber 1995) Al).

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ereignists –
should have no influence on the wording of the question.4′ The vehe-
mently negative reaction of sovereignists to any suggestion that the federal govern-
ment might hold its own referendum in Quebec – one that might try to tap the Cana-
dian dimension of Quebeckers’ identity –
clearly betrays a recognition of the bias
that results from a one-sided determination of the question. According to Guy Lafor-
est, the distinguished Laval University political scientist, “[a] referendum run by the
federal government in Quebec [would be] … an illegitimate act, and I for one suggest
it would bring massive civil disobedience.”‘ It appears, however, that a referendum
held by the Quebec government should be seen as legitimate and accepted without
question outside Quebec. The asymmetry in the logic is clear.

A related point, or bias, has received insufficient attention. The structuring of ref-
erendum debates in Quebec – with the “No” (federalist) forces under the control of
provincial federalists and the Yes forces under the control of provincial sovereignists
provincializes the debate on the options facing Quebec. Two competing visions
–
appealing to the self-interest of the Quebec community – within or without Canada
vie for support. In this competition, the Canadian dimension of federalism – par-
–
ticipation in a pan-Canadian community –

is underplayed and underweighted.-o

In the 1995 referendum, the fact that the leader of the No forces was a provincial
politician with ambitions to be the next premier of Quebec ensured that the issue of
Quebec’s future was viewed through a provincial lens. Daniel Johnson, leader of the
Quebec Liberal Party, confirmed this bias when responding to critics of his failure to
promote a Canadian vision: “[M]y preoccupation is the interests of Quebeckers. My
mandate is not the same as someone in the House of Commons. I work from and for

“The words of Monahan, Bryant & Cot6 aem appropriate: “In both 1980 and 1995, the Quebec
government asserted that the wording of the referendum question was the exclusive responsibility of
the pro-sovereignist forces … No constitution anywhere in the world today provides for the referen-
dum question to be formulated in this fashion” (ibid at 9). Later they state: “This unilateral and un-
democratic method of setting the referendum question is quite extraordinary in comparison to the
manner in which other constitutions deal with this matter. We believe that it is inappropriate for the
Quebec premier, who represents only one side in the debate, to have exclusive authority to set the ref-
erendum question” (ibid at 27).
41 Cited in S. Reid, Canada Remapped: How the Partition of Quebec Will Reshape the Nation
(Vancouver Pulp Press, 1992) at 74. Lucien Bouchard also responded strongly to the possibility of a
federal referendum in Quebec: “When it comes to deciding the political future of Quebeckers, it’s
done by Quebeckers, under the rules of the National Assembly” (T. Thanh Ha & R. S6guin, “Slim
Yes Win Won’t Do, Federalists Say” The [Toronto] Globe and Mail (20 September 1995) A4). It may
well be, of course, that it would be impolitic and impractical for the federal government to hold its
own counter-referendum in Quebec, asking its own question. Faced with a choice, Quebeckers would
probably accord more legitimacy to a referendum question determined by the Quebec government
(see Monahan, Bryant & CotO, ibid. at 40-42).

“See A.A. Borovoy, “Shared Vision of Canada Lost in Referendum Debate” The [Toronto] Star (8
November 1995) A21. See also D. Macpherson, “Waving the Flag” The [Montreal] Gazette (26 Oc-
tober 1995) B3.

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A.C. CAIRNS – WHY IS IT SO DIFFICULT TO TALK TO EACH OTHER?

Quebec … My role is to defend the interests of Quebeckers and if that doesn’t suit
some people [in Ottawa], too bad.”5 ‘

The referendum process therefore structures the debate so that Quebeckers decide
on their future largely from an inward-looking Quebec perspective. The Quebec voter
is accordingly relatively-deprived of cues, information and analysis relevant to one of
the two civic identities that are natural to a federal system. This provincial bias is ex-
acerbated if the federalist elite in Ottawa of Quebec origin can be portrayed as ille-
gitimate or as traitors. 2

The provincialization of the referendum has generally been accepted by elites
outside Quebec, especially provincial premiers. Their brief forays into Quebec to give
carefully scripted speeches before select audiences have a furtive air about them. It is
as if they fear to be called “intruder” or “interloper”. The weakening of the Canadian
presence during Quebec referenda is a strategic triumph for the sovereignists. It re-
duces the likelihood that the referendum process fairly reflects the Canadian, as well
as the Quebec, identity of the voter. In addition to offending basic fairness, the weak-
ening of the Canadian presence increases the probability that the Quebec voter is
poorly informed of sovereignty’s consequences.

In the 1995 referendum, provincialization of the debate was strengthened by the
silence “imposed” by the federal government on Canadian citizens outside Quebec
and even to some extent on provincial governments. 3 They were told to stay out of
the debate – a debate of fundamental importance to their future – because they were
not part of the referendum electorate and because their vocal participation might dam-
age the cause of the federalist forces in Quebec.’

While the reasoning behind this silencing may have been strategically sound –

an attempt to avoid any provocative remark or action that could have been manipu-
lated by the Yes forces –
the silencing did have negative consequences. First, it was
humiliating to be told that one’s civic involvement in a public discussion was un-
wanted when the survival of one’s country was at stake. Second, minimizing public
discussion outside Quebec reinforced the ignorance of Canadians living beyond its
borders by weakening their incentive and opportunity to become informed. Third, re-
ducing the majority of Canadians to spectators impoverished the very idea of pan-
Canadian citizenship; precluding citizens inside and outside Quebec from talking to

“‘ Quoted in A. Picard, “Johnson Comes Out Swinging at Ouellet” The [Toronto] Globe and Mail (6

January 1996) A5.

2 The label “traitor” was applied to Prime Minister Jean Chrdtien by the separatist forces in 1995.

See text below, accompanying note 98.

” For discussions of the orchestrated silence outside Quebec, not counting the voices of federal
cabinet ministers, see A. Wilson-Smith, “The Struggle Begins” Maclean’s (18 September 1995) 18;
R. Howard, “P.M. Lauds Rest of Canada for Keeping Cool Despite Separatists’ Efforts” The
[Toronto] Globe and Mail (11 October 1995) A4.

This strategy was reversed in the final days of the referendum campaign. The change in policy re-
sulted in a massive rally of Canadians from across Canada in Place du Canada, Montreal (see e.g. S.
Delacourt, “Emotional Rally Bolsters No Forces” The [Toronto] Globe and Mail (28 October 1995)
Al).

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each other implied that they shared nothing relevant to the decision over Quebec’s
future. In particular, silencing Canadians outside Quebec weakened the idea of Cana-
dian citizenship within Quebec, and thus reinforced the provincialism through which
Quebeckers were directed to decide their future. Silencing therefore weakened the
Canadian dimension in the referendum debate; as a result, the Canadian pride of an
overwhelming majority of Quebeckers was systematically downplayed to the advan-
tage of the sovereignists.”

3. Summary of the Quebec-Canada Debate

The peacefulness with which Canadians have debated and continue to debate
their future is a tribute to the constitutional maturity of Canada. The achievement,
however, is threatened by several factors. First, as we realize that we may not survive
as one people, our language becomes increasingly bellicose. Second, Canada-without-
Quebec is virtually voiceless and thus incapable of speaking, in advance of its own
possible emergence, to the Quebeckers who see it as their future partner. It is also in-
capable of the profound introspection that would prepare it for a future it might reluc-
tantly inherit. Finally, the Quebec referendum process is clearly a flawed and biased
policy instrument, designed to stress the provincial dimension of the Quebec com-
munity responding to a carefully crafted question.

II. Aboriginal Peoples

A. A New Narrative
Since the defeat of the federal government’s 1969 white paper on Indian policy,
the groups that vie publicly for living space and constitutional affimnation in Canada
have included the Aboriginal peoples. Canadian sources of Aboriginal emergence
have been reinforced by changes in the international environment. In a seminal article
entitled “Ethnography as Narrative”, the American anthropologist Edward Bruner ar-
gued that the dominant narrative concerning American-Indian history and culture had
changed abruptly, indeed had virtually been stood on its head: “[l]n the 1930s and
1940s the dominant story constructed about Native American culture change saw the
present as disorganization, the past as glorious, and the future as assimilation.”” Now,
by contrast, “[w]e have a new narrative: the present is viewed as a resistance move-
ment, the past as exploitation, and the future as ethnic resurgence.”” Not surprisingly,
in light of global decolonization, the Canadian narrative concerning Aboriginal peo-

s According to a poll taken two months before the referendum, 79 percent of Quebeckers agreed
with the statement “Quebeckers have contributed to building Canada, a country which I am proud to
belong to” (R. Mackie, “Financial Reality Bringing Change, Johnson Says” The [Toronto] Globe and
Mail (20 October 1995) A4).

– E.M. Bruner, “Ethnography as Narrative” in V.W. Turner & E.M. Bruner, eds., The Anthropology
57 ibid.

of Experience (Chicago: University of Illinois Press, 1986) 139 at 139.

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A.C. CAIRNS – WHY IS IT SO DIFFICULT TO TALK TO EACH OTHER?

ples has experienced a similar transformation. In political and constitutional terms, the
Aboriginal peoples of Canada have moved from the audience onto the stage.

This change has had extraordinary repercussions in a variety of fields. Joe Clark,
as federal minister responsible for constitutional affairs, informed Canadians in 1991
that Louis Riel was now “a Canadian hero”.” In the following year, in parallel resolu-
tions in the House of Commons and in the Senate, yesterday’s “traitor” was recog-
nized for his “unique and historic role … as a founder of Manitoba and [for] his con-
tribution in the development of Confederation.”‘” More generally, Aboriginal and non-
Aboriginal writers now reinterpret the past to challenge negative portrayals of Abo-
riginal peoples and to provide a more positive, balanced and prominent place for
them.’ Museums are challenged to be more sensitive to the wishes of contemporary
Aboriginal peoples, which in some cases requires the return of artifacts.” Whether
Emily Carr is guilty of cultural appropriation engenders debate in art journals.” A re-
cent biography demolishes the formerly positive reputation of well-known anthro-
pologist Marius Barbeau by highlighting his pejorative attitudes to Aboriginal peoples
and the unscrupulous methods he employed in his research. ‘ Churches issue public
apologies for the abuse of Aboriginal children in residential schools.” The Royal
Commission on Aboriginal Peoples, whose very establishment testified to the new
Aboriginal prominence in Canadian politics, has consolidated these intellectual and
political trends in its comprehensive report.”

J. Clark, (Notes for a speech at a luncheon hosted by the Saskatchewan Mrtis Assembly, 28 Sep-

tember 1991) at 5 [unpublished].

” House of Commons Debates (10 March 1992) at 7879; Debates of the Senate (17 March 1992) at

1043.

6″See, e.g. B.G. Trigger, Natives and Newcomers: Canada’s ‘Heroic Age’Reconsidered (Montreal:
McGill-Queen’s University Press, 1985); D.N. Paul, We Were not the Savages: A Micmac Perspective
on the Collision of European and Aboriginal Civilizations (Halifax: Nimbus Publishing, 1993); G.E.
Sioui, For an Amerindian Autohistory: An Essay on the Foundation of a Social Ethic, trans. S.
Fischman (Montreal: McGill-Queen’s University Press, 1992). First Nations Circle on the Constitu-
tion, To the Source: Commissioners Report (Ottawa: Assembly of First Nations, 1992) is a passion-
ately positive evocation of the past of the First Nations, contrasted with the vices and failings of the
intruding white society. The sources and nature of group-driven historical revisionism are lucidly ex-
plored in P. Novick, ed., That Noble Dream: The “Objectivity Question” and the American Historical
Profession (Cambridge: Cambridge University Press, 1994).

61 See M.M. Ames, Cannibal Tours and Glass Boxes: The Anthropology of Museums (Vancouver

U.B.C. Press, 1992) at 13-14.

“See M. Crosby, “Construction of the Imaginary Indian” in S. Douglas, ed., Vancouver Anthology:
The Institutional Politics of Art (Vancouver. Talon Books, 1991) 267; R. Fulford, “The Trouble with
Emily” (1993) 10 Canadian Art 32.

61 See L. Nowry, Man of Mana: Marius Barbeau (Toronto: NC Press, 1995). See also H. Robertson,
Book Review of Man of Mana: Marius Barbeau (“Totem Poles and Tall Tales”), The Canadian Fo-
rum (July/August 1996) 36.

“See J.R. Miller, Shingwauk’s Vision: A History of Native Residential Schools (Toronto: University

of Toronto Press, 1996) at 340.

“Canada, Report of the Royal Commission on Aboriginal Peoples (Ottawa: Canada Communica-

tion Group, 1996) (Co-chairs: R. Dussault & G. Erasmus) [hereinafter R.C.A.R Report].

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These changes in the moral and intellectual climate inform political and academic
judgments about past and future relations between Aboriginal and non-Aboriginal
peoples. Inevitably, and appropriately, this new environment shapes constitutional
politics. Indeed, the high profile of Ovide Mercredi in the prelude to the Charlotte-
town Accord, the diffusion of the status-enhancing label “First Nations”, ‘ and the
pressures for constitutional recognition of a third order of government6 ‘ are all mani-
festations of this larger cultural and intellectual transformation. It is generally recog-
nized that the status quo is unacceptable and that past policies have failed. Aboriginal
leaders now occupy the moral high ground, and they have become skilled in employ-
ing what anthropologist Noel Dyck terms “the politics of embarrassment”:” they con-
trast their past and present treatment against the ideals of Canadian society and the
ideals embodied in various rights instruments emanating from the United Nations.”

Unquestionably, the general direction of change symbolized by these examples is
to be applauded. It holds out the possibility of a dignity in future Aboriginal-non-
Aboriginal relations that has been absent in the past. Admittedly, some of the ad-
vances are tenuous. For example, the pan-Canadian voice of the Assembly of First
Nations is muted by the preference of the Liberal federal government and its ministers
to deal directly with regional Aboriginal leaders and local communities.”0 In addition,
these advances are so recent that they have had little impact on the depressing array of
social ills that afflict so many Aboriginal communities.” The overall trend towards
greater recognition of Aboriginal aspirations and the promotion of Aboriginal self-
government is, however, unlikely to change.

B. The Contemporary Reticence of Non-Aboriginals
The contemporary emergence of Aboriginal voices contrasts dramatically with
the extended period in which non-Aboriginal politicians, administrators, missionaries
and anthropologists dominated the Aboriginal-policy agenda. Until the mid-sixties,
the policy discussion was almost completely one-sided due to limited Aboriginal par-
ticipation. More recently, in a remarkable albeit only partial role reversal, it is non-
Aboriginals whose contribution to the discussion of Aboriginal-non-Aboriginal re-
lations is constrained. This is due to a combination of Aboriginal nationalism, a dif-
fuse guilt complex among some of the non-Aboriginal majority, and the salience of

“A key concept in ibid.
67See ibid., vol. 2, part I at 240-44.
6” N. Dyck, “Aboriginal Peoples and Nation-States: An Introduction to the Analytical Issues” in N.
Dyck, ed., Indigenous Peoples and the Nation-State: Fourth World Politics in Canada, Australia and
Norway (St. John’s, Nfld.: Institute of Social and Economic Research, Memorial University of New-
foundland, 1985) 1 at 15.

69See e.g. International Covenant on Civil and Political Rights, 19 December 1966, Can. T.S. 1976
No. 47, 999 U.N.T.S. 171; International Covenant on Economic, Social and Cultural Rights, 19 De-
cember 1966, Can. T.S. 1976 No. 46, 993 U.N.T.S. 3.
70 A. Mclroy, “Mercredi Unveils Last-Ditch Plan” The [Toronto] Globe and Mail (9 July 1996) AI.
7
1 The entire R.C.A.P Report, supra note 65, exhaustively analyzes the widespread malaise and so-

cial breakdown in Aboriginal communities (see especially ibid., vol. 3).

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A.C. CAIRNS- WHY IS IT So DIEFCULT TO TALK TO EACH OTHER?

the contemporary voice appropriation thesis.’ These inner constraints and taboos are
not ubiquitous. Once again, they do not seem to bind the Reform Party nor a handful
of authors.”‘ They do not silence critics of the land claim process in British Columbia,
nor do they silence critics of Aboriginals’ resort to blockades and violence (whether
real or threatened). I argue only that many would-be commentators and analysts real-
ize that this area is a “minefield”. They consequently speak and write guardedly or
remain silent. This is particularly true of those who are broadly supportive of Abo-
riginal peoples. Those who do speak out are often those who are least sympathetic to
Aboriginal claims. As a result, the Aboriginal–non-Aboriginal debate appears much
more polarized than it actually is.’

These muffling constraints apply equally to academics and to politicians. Con-
straints on the former are frequently noted. Dyck recently wrote of the great difficulty
anthropologists now have in “telling it like it is” and accurately representing the
conditions they observe in Aboriginal communities.” They fear that honest reporting
will undermine Aboriginal peoples’ political objectives, which they generally support.
Other scholars have expressed a similar reluctance to formulate conclusions that
could cast doubt on the feasibility or desirability of Aboriginal goals. They fear that
their motivations could be misinterpreted.” Gibbins and Jhappan note that the “few
scholars who have dared to express doubts about the appropriateness, and indeed
authenticity, of aboriginal claims have been attacked and even ridiculed, regardless of
the substance of their concerns.”” The non-Aboriginal author of a recent book written
to advance Indian interests still felt obliged to defend himself against the view that he

71 See the following for a discussion of the voice appropriation thesis: L. Alcoff, “The Problem of
Speaking for Others” (1991-92) 20 Cultural Critique 5; M. Fee, “Why C.K. Stead Didn’t Like Keri
Hulme’s The Bone People: Who Can Write as Other?” (1989) 1 Aust. & N.Z. Stud. Can. 11; A. Pask,
“Cultural Appropriation and the Law: An Analysis of the Legal Regimes Concerning Culture” (1994)
8 I.P.J. 57.

” See e.g. Reform Party of Canada, Aboriginal Affairs Task Force Report (mimeo., 15 September
1995) [unpublished]; M.H. Smith, Our Home or Native Land? (Victoria: Crown Western, 1995). In
the preface, Smith anticipates that “[t]he national native leadership will incorrectly brand the author as
a racist” (ibid. at vi).

7 The tendency for extreme views to drive out moderate views in polarized, highly charged policy
areas is pervasive. “[Those] … with extreme views,” argues G.C. Loury, “can drive moderates, who
want to avoid the reputational devaluation of being mistaken as zealots, out of a conversation. In ef-
fect, the moderates ‘hoard’ their opinions; hence, the public discourse on some issues (perhaps abor-
tion, for example) can be more polarized than is the actual distribution of public opinion” (One by
One from the Inside Out: Essays and Reviews on Race and Responsibility in America (New York:
Free Press, 1995) at 154).

” See N. Dyck, “Telling it like it is: Some Dilemmas of Fourth World Ethnography and Advocacy”
in N. Dyck & J.B. Waldram, eds., Anthropology, Public Policy, and Native Peoples in Canada
(Montreal: McGill-Queen’s University Press, 1993) 192.

76 See R. Gibbins, “Citizenship, Political, and Intergovernmental Problems with Indian Self-
Government” in J.R. Ponting, ed., Arduous Journey: Canadian Indians and Decolonization (Toronto:
McClelland & Stewart, 1986) 369 at 376.

” R. Gibbins & R. Jhappan, “The State of the Art in Native Studies in Political Science” (Paper pre-
sented to the Tenth Biennial Canadian Ethnic Studies Association Conference, 1989) at 24
[unpublished].

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was entering forbidden territory. He resisted possible allegations of paternalism, de-
nied the “insider thesis” (i.e., that his identity as a non-Aboriginal would preclude un-
derstanding), and concluded that his writing on Aboriginal issues was justified be-
cause the “principle of a common humanity requires scholars to transcend the
boundaries of their identity to find common human ground.”‘

Similar constraints apply to politicians who fear that speaking frankly will be
politically damaging. One participant in the constitutional conferences on Aboriginal
matters (1983-1987), who detected a lack of candour in the comments of non-
Aboriginal politicians, stated that “[n]o politician wants to appear reactionary: sincere
and sometimes reasonable concerns about enhancing the various rights of aboriginal
peoples tend to be left unvoiced.””

None of the above is surprising. We are all responding to the changed narrative
identified by Bruner at the beginning of this section. At least it is clear that the new
narrative is an improvement over the one that it has replaced. Also, there is a certain
justice in the current prominence enjoyed by the voices of the formerly silenced and
marginalized peoples as we seek to establish a new relationship. Further, the trust that
is necessary for candid exchanges is a scarce commodity.” Aboriginal peoples know
that the candour of the past by the majority society, including governing elites, when
they themselves had little voice, was often stigmatizing and pejorative, as well as be-
ing paternalist. These psychological and cultural impediments do not make our task of
working out a positive future relationship an easy one.

78 M. Boldt, Surviving as Indians: The Challenge of Self-Government (Toronto: University of To-
ronto Press, 1993) at xviii. (A few years ago, in a speech to an academic audience, I referred to some
concerns that I thought should be considered on the road to Aboriginal self-government. To my sur-
prise I was subsequently congratulated by several people, not for the cogency of my remarks, but for
my courage in making them.) Boldt’s defensive posture, one that is frequent in contemporary non-
Aboriginal scholarship on Aboriginal issues, contrasts remarkably –
in fact, almost totally – with
Gunnar Myrdal’s preface to his An American Dilemma, one of the most brilliant applied social-
science analyses of the twentieth century. He noted approvingly that it was his very status as an out-
sider, as a foreigner, that led to his invitation from the Carnegie Corporation to undertake the daunting
study of the condition of the American “Negro” in the United States, culminating in his massive two
volume publication (see “Author’s Preface” in G. Myrdal, An American Dilemma: The Negro Prob-
lem and Modem Democracy, vol. 1 (New York: Harper, 1944) ix). Myrdal, of course, wrote in the
imperial era. The contemporary period, which goes under various labels, is usefully summed up by
the title of a volume dealing with the post-colonial counter-attack: The Empire Writes Back, by B.
Ashcroft, G. Griffiths & H. Tiffin (London: Routledge, 1989).

79 B. Schwartz, First Principles, Second Thoughts: Aboriginal Peoples, Constitutional Reform and

Canadian Statecraft (Montreal: Institute for Research on Public Policy, 1986) at 325.

‘0 See J.R. Ponting, “Internationalization: Perspectives on an Emerging Direction in Aboriginal Af-
fairs” (1990) 22:3 Can. Ethnic Stud. 85. According to Ponting, the foremost theme in Indian dis-
course is “the ‘untrustworthiness of government.’ The federal government … was repeatedly portrayed
as betraying trust, being deceitful, lying, not dealing in good faith, and being insincere or hypocriti-
cal” (ibid. at 93).

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A.C. CAIRNS – WHY IS IT So DIFFICULT TO TALK TO EACH OTHER?

C. Towards a Shared Discourse
Nevertheless, if our constitutional and civic task is to create an enduring rap-
prochement between internal nationalisms, constraints on discussion may prove
counterproductive. As Menno Boldt has observed, discussion of the future of Abo-
riginal peoples in Canada has thus far taken place in parallel discourses, Aboriginal
and Canadian. These are “conducted in isolation and [each] is insulated from the
other, and the participants in each seem to be imprisoned in the concepts and logic of
their particular discourse.”” The laudable goal to which his book was directed was to
have “members of these two communities entering into a shared discourse for the
purpose of learning from each other, about each other, and about themselves as part of
the human community.”‘” A shared discourse will not be easily achieved. The memo-
ries and suspicions history has bequeathed us impede the mutually informative dis-
cussions that might help us overcome the burdens of the past.

III. The Crisis of Representation

Federalism presupposes the existence of divided civic identities and dual repre-
sentation of citizens in provincial and federal legislatures. It is presumed, in a func-
tioning federal state, that each government, federal or provincial, is a legitimate
spokesperson for half of the divided identity of a federal people. In Quebec-Canada
relations, this assumption is no longer valid. Further, Aboriginal leaders rarely pro-
mote the federalist goal of divided identities. The competition between internal na-
tionalisms poses a fundamental challenge to the Canadian system of divided represen-
tation: Who has the right to speak for whom?

A. Who Speaks for Whom?
In a healthy federal state, the splitting of the civic self is a virtue. It allows citizens
not only to have multiple allegiances and opportunities for participation, but also to
shift allegiances and vary the intensity of their participation based on which govern-
ment appears most sensitive to their interests. Competition to satisfy citizens’ con-
cerns and to strengthen their identification with a particular government works to en-
hance governments’ sensitivity. When federalism is routinized, the system of dual rep-
resentation that reflects and reinforces a dualism of identity threatens neither personal
identity nor civic wholeness. Rather, it allows our federal and provincial “selves” to
speak simultaneously to each other, and allows all of us to address each other from
coast to coast as Canadians.

Both the theory and the practice of divided identities and dual representation in
Canadian federalism have become a key target of nationalist, and especially Quebec
sovereignist, elites seeking to monopolize the voice of their people. From the na-
tionalist, especially sovereignist, perspective, the “external” civic identity of the

,Boldt, supra note 78 at xiii.
2 Ibid. at xvii.

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country as a whole is a threat and a rival.” For example, Claude Morin described the
federal system as a threat because it “divides Quebeckers against themselves”, and
R6n6 Ivesque remarked in 1979 that federalist Quebeckers are “foreigners”.” There
is a pervasive indipendentiste thesis that

the federal citizen with her divided allegiances and divided civic identities has
an unhealthy, fractured personality. Such a person, tugged in contradictory di-
rections, is the psychic counterpart of an unhealthy body immobilized by
physical ailments. Federalism, it is argued, inhibits the flourishing of the
healthy, single-dimensional identity Qu6becois could enjoy as citizens of an in-
dependent state.Y

The election of federalists from Quebec to Parliament in Ottawa, according to
Lucien Bouchard, has systematically distorted and concealed Quebec’s “true reality
from English-speaking Canadians.”‘ This persuasion discredits the support of Pierre
Trudeau, and of his seventy-two Liberal caucus members from Quebec, for the pa-
triation package that became the Constitution Act, 1982. The implicit claim is that
Quebec’s authentic political voice is heard in Quebec’s National Assembly: federal
members of Parliament from Quebec, caught up in Canada-wide concems, are not
truly representative. The singularity of Quebec, it is argued, is muffled.’

While many status Indians do not think of themselves as Canadian citizens,” and
view provincial involvement in their affairs as a threat to their unique constitutional
status, they know that various political and economic necessities preclude their exit
from Canada. Nevertheless, their leaders accord a clear priority to Aboriginal identi-
ties and show little enthusiasm for the federalist goal of divided identities.

Charles Taylor’s “deep diversity” thesis, applied to Quebec and to Aboriginal
peoples, assumes that only one deeply felt civic identity is possible. In these cases,
therefore, a Canadian identity will not have an autonomous existence. It will only be
an instrumental extension of the Quebec and Aboriginal identities that are (or will be)
primarily linked to subnational governments over which they have (or will have)
majority control. “For Quebeckers, and for most French Canadians,” Taylor argues,
“the way of being a Canadian (for those who still want to be) is by their belonging to

” Hence the hostility of the Tremblay Report to the thesis that the federal government could use its
powers to stimulate a Canadian identity (Quebec, Report of the Royal Commission of Inquiry on
Constitutional Problems (Quebec: Province of Quebec, 1956) (Chairman: T. Tremblay)); the post-
1982 Quebec nationalist criticism of the Charter, seen as an instrument to strengthen a pan-Canadian
identity, derives from the same assumption of the unchallengeable priority of the Quebec civic iden-
tity (see Reconfigurations, supra note 3 at 204-209).

‘,Cited in Disruptions, supra note 19 at 45.
“Reconfigurations, supra note 3 at 323.
‘6 L. Bouchard, “The French-Speaking Community and Qu6bec” (Notes for a speech to the 45th
Annual General Assembly of the Association canadienne-frangaise de l’Ontario, 3 June 1994) at 13
[unpublished].

7 See A. Phillips, The Politics of Presence (Oxford: Clarendon Press, 1995) for a complex and rele-

vant discussion of representation roles around the theme of presence.

” See Boldt, supra note 78 at xvi; M. Boldt & J.A. Long, eds., The Quest for Justice: Aboriginal

Peoples and Aboriginal Rights (Toronto: University of Toronto Press, 1985) at 177.

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A.C. CAIRNS- WHY IS IT So DIFFICULT TO TALK TO EACH OTHER?

a constituent element of Canada, la nation qudbicoise, or canadienne-fran~aise.
Something analogous holds for aboriginal communities in this country.””

When the leaders of Aboriginal organizations sit at the bargaining table with first
ministers from the federal, provincial and territorial governments (as they did in the
1983-1987 Aboriginal constitutional conferences, and again in the meetings that pro-
duced the Charlottetown Accord), their representative role presumes that they possess
the sole authority and right to be the voice of the Aboriginal peoples. This, however,
directly challenges the political and constitutional reality that the Aboriginal peoples
are also Canadian citizens who vote for the members of federal, provincial and terri-
torial legislatures. Given the practice of responsible government, Aboriginal voters
help to determine the composition of the political executives who sit on the other side
of the bargaining table. From the Aboriginal nationalist perspective, however, this
except for those who are Aboriginal themselves –
does not give those politicians –
authority to speak for their Aboriginal constituents.

This Aboriginal position has deep historical roots: status Indians did not get the
vote until 1960.” In addition, Aboriginal voters are a small minority of the total elec-
torate, and their geographic dispersal marginalizes their influence in most constituen-
cies. Further, their historical experience gives them little reason to be confident that
governments and legislators will be sensitive to their concerns.’ George Erasmus, co-
chair of the Royal Commission on Aboriginal Peoples, formerly grand chief of the
Assembly of First Nations, bluntly denied that first ministers did or even could repre-
sent Aboriginal interests: “This bland assertion that First Nations and their govern-
ments are represented by non-aboriginal politicians who have no interest, demon-
strated or latent, in advocating our rights is bogus and is without foundation in fact or
In the closing days of the Meech Lake odyssey, the suggestion that Prime
action.”
Minister Brian Mulroney and other elected white leaders should be trusted to respond
to Aboriginal peoples’ constitutional objectives in a post-Meech era prompted Patricia
Monture, an Aboriginal law professor, to respond with the comment: “‘Trust us’. I
mean what do you think we are, forgetful or just plain crazy?”

In our attempts to escape from unsatisfactory representative mechanisms for
Aboriginal peoples, we have stumbled, in constitutional matters, into ad hoc arrange-

C. Taylor, Reconciling the Solitudes: Essays on Canadian Federalism and Nationalism, G. Lafor-

est, ed. (Montreal: McGill-Queen’s University Press, 1993) at 182.

90 An Act to Amend the Canada Elections Act, S.C. 1960, c. 7, amending R.S.C. 1952, c. 23.
9′ A. Bear Robe, after noting that First Nations had no voice in the constitutional settlements of
1867 or 1982, continued: “We have no sense of ownership regarding the federal and provincial laws
that apply to us simply because those laws were forced upon us without our consent, consultation or
input, especially the much despised federal Indian Act’ (“Treaty Federalism” (1992) 4 Const. F 4 at
6).

92 Debates of the Senate (18 November 1987) at 2201. See also Minutes of Proceedings and Evi-
dence of the Special Joint Committee of the Senate and the House of Commons on the 1987 Constitu-
tional Accord [hereinafter Minutes], No. 9 (19 August 1987) at 61 (G. Erasmus); Minutes, ibid., No.
12 (25 August 1987) at 101 (M.L. Bruy re).
93M.E. Turpel & PA. Monture, “Ode to Elijah: Reflections of Two First Nations Women on the

Rekindling of Spirit at the Wake for the Meech Lake Accord” (1990) 15 Queen’s L.J. 345 at 350.

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ments that are theoretically incoherent. Is there an implicit assumption of a division of
labour, whereby Aboriginal organizations speak for the aboriginality of indigenous
peoples and the federal and provincial governments speak for their Canadian and
provincial identities? If so, the theory has not been articulated, and practice belies its
existence. However explicable its origins, the existing confusion is not sustainable in
the long term.

When Robert Bourassa, Jacques Parizeau or Lucien Bouchard have said that they
would only bargain with the federal government on a one-on-one, equal-to-equal, na-
tion-to-nation basis, they have contributed to a similar confusion, for the federal gov-
ernment does not speak for a polity that excludes Quebec. Their deliberate misrepre-
sentation of the federal government’s role is a denial of its constitutional obligations
to all Canadians, and an attempt to force the federal government into an illegitimate
role –

as government and spokesperson for the Rest-of-Canada.

Quebec has its own problems of political representation. Pre-referendum votes by
the Inuit, Cree and Montagnais – with overwhelmingly federalist results’ –
directly
challenge the legitimacy of Quebec’s majority deciding about the future of the whole
of Quebec’s territory. They challenge the legitimacy of the Quebec government
claiming a mandate for sovereignty that would automatically include their peoples.
The underlying premise for the Aboriginal peoples is clear: neither a Quebec major-
ity, nor a Quebec government that speaks for the majority on such fundamental issues,
speaks for them; notwithstanding their de jure membership in the Quebec territorial
community, on such matters they speak for themselves.

B. Nationalist Rhetoric
The hostility to divided identities and to dual systems of representation is the
source of appeals to national pride, to loyalty and to the need for “un rapport de
force”, a phrase Bouchard used repeatedly in the 1995 referendum campaign. He also
used “solidarity” –
“the key word, if ever there was one,” he subsequently stated
when announcing his candidacy for the P.Q. leadership, “for the needs of our future
action.”5 The rhetoric of the Yes side returned again and again to this theme: “equal to
equal”, “nation to nation”, “people to people”, “standing tall”, “not being on one’s
knees”. In Parizeau’s words, the federalist message was that “[t]he smaller you make
yourselves, the more you stay on your knees, the more beautiful you are..” “Quebec
rose to its feet” was Bouchard’s interpretation of the strong Yes vote in the 1995 ref-

‘ The Cree voted 96 percent No, the Inuit 95 percent No, and the French-speaking Montagnais an
astonishing 99 percent No (see A. Derfel, “‘The Message is Clear We Won’t Go’: Coon Come Has
Warning After Vast Majority of Crees Reject Quebec Independence” The [Montreal] Gazette (26
October 1995) A15; T. Harper, “Indian Leaders Vow to Fight Separation: 95% of Inuit Reject Yes
Victory” The [Toronto] Star (27 October 1995) A14; A. Derfel, “Montagnais Reject Quebec Inde-
pendence: French-Speaking Aboriginals Vote 99% Against in Own Referendum” The [Montreal]
Gazette (28 October 1995) A9).

‘ “Quebec is Split in Two” The [Montreal] Gazette (22 November 1995) B3.

Quoted in R. McKenzie, “Break Inevitable, Parizeau Claims” The [Toronto] Star (24 October

1995) AI0.

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A.C. CAIRNS- WHY IS IT So DIFFICULT TO TALK TO EACH OTHER?

erendum.’ The search for nationalist solidarity, so that a united Quebec can bargain
from a position of strength, and for the affirmation of a single identity in the struggle
against the “other”, generates criticisms of opponents who appear to identify with the
other side. They are accused of not being on-side with “the people”. Patriation is la-
belled the “betrayal of 1982”, and its architects, especially Pierre Trudeau and Jean
Chr6tien, are deemed “traitors”!

Similar motivations underlie the warning within the Aboriginal community to
“beware of the traitors in our midst”, defined as those who advocate the Canadian
way as “the only way”: “our greatest enemies are within our own ranks.”” A number
of First Nations women who appeared before the Royal Commission on Aboriginal
Peoples, apprehensive that their loyalty might be questioned, requested that they be
heard in camera. The Commission speculated that this was either “because they
feared community disapproval if they spoke out in public, or because they did not
wish to talk about social dysfunction in their communities in a public forum.”‘” Abo-
riginal women who advocated the Charter’s applicability in the context of Aboriginal
self-government were criticized for letting women’s concerns obscure the larger issue
of Aboriginal self-government. They were told by the Assembly of First Nations that
the Charter was a “foreign” document, and that “Aboriginal women will have more
power, more status, more respect than their feminist white sisters” if Aboriginal tradi-
tion is restored.’ Women’s criticism of abuse in Aboriginal communities was dis-
missed as not being “authentically Aboriginal”. According to one Aboriginal woman
who supports the Charter, persistence in speaking about women’s problems led to the
pain of being “labelled as a dupe of the colonizing society.”‘

C. Summary of the Crisis of Representation
The pressures for solidarity within communities deepen the differences between
them, and impede the discovery and stimulation of commonalities that would
strengthen citizenship ties across the country.” Solidarity is a natural strategy for

[Toronto] Star (1 November 1995) Al at A28.

97 R. McKenzie, “Parizeau Quits: Bloc Qu6becois’ Bouchard Seen as Most Likely Successor” The
98 See G. Fraser, “Long Knives Hone Bouchard’s Message: Vision of Betrayal by Other Provinces
in 1981 Constitutional Deal Underpins Nationalist Narrative” The [Toronto] Globe and Mail (27 Oc-
tober 1995) A8. See also D. Vienneau, “Separatist Vitriol Influenced Attacker, P.M. Says” The
[Toronto] Star (13 November 1995) Al, A20, for a catalogue of the vituperative language directed at
Chrdtien by Bouchard and Parizeau, including “traitor”, “cretin”, “toady” and “Oncle Tom”.

” M. Smallface Marule, “Traditional Indian Government: Of the People, by the People, for the
People” in L. Little Bear, M. Boldt & J.A. Long, eds., Pathways to Self-Determination: Canadian
Indians and the Canadian State (Toronto: University of Toronto Press, 1984) 36 at 45.

“.. Royal Commission on Aboriginal Peoples, Public Hearings, Exploring the Options: Overview of

the Third Round (Ottawa: Canada Communication Group, 1993) at 4.

.0, First Nations Circle on the Constitution, supra note 60 at 64.
… J. Green, “Constitutionalizing the Patriarchy: Aboriginal Women and Aboriginal Government”

(1993) 4 Const. F. 110 at 118.

“‘ As George M. Fredrickson recently observed of the American situation, “[t]he emphasis on black
ethnic solidarity and the disavowal of integration as a primary goal of African Americans that have,

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elites whose goal for “their people” is a partial (or complete) exit via self-government
from the constraints of the surrounding political community –
described in
Bouchard’s rhetorical language as a “prison”.’ But bitter internal conflicts are almost
inevitable consequences because at least some members of the community that seeks
exit resist the weakening or sundering of their ties with a country they do not wish to
leave. Any proposed exit is seen as a threat to their Canadian identity.

The tensions between Quebec, Canada and Aboriginal peoples challenge our
conceptions of community and the existence of divided civic identities, and conse-
quently undermine the current systems of representation in Canada and Quebec.
These tensions are about anticipated futures: Quebec and the Rest-of-Canada meeting
as sovereign nations; Aboriginal peoples constituting a third order of government; or
particular Aboriginal peoples in Quebec pressing their claim to stay in Canada should
Quebec become a sovereign state.”3 In each case, the powerful symbolic message is
the same: “We are not part of you. You do not represent us. We meet as equals.” Of-
ficially, however, none of these claims is constitutionally valid. The resultant discrep-
ancy between official and assumed representative roles complicates and confuses
whatever encounters take place between officeholders and spokespersons. They can-
not agree on who they are and whom they represent.

IV. Conclusion

A. The Quality of Our Constitutional Conversation
When future historians look back on the constitutional introspection of Canadians
in recent years, they will not be lacking for questions. The key question, undoubtedly,
will be how events in the 1970s to the 1990s led to the survival or dissolution of Can-
ada. A question they might neglect to ask is how good –
how fair, comprehensive, in-
formed, democratic, free from constraint – was the public discussion in the crisis
decades?

This is a complex question, and I have provided little more than a crude descrip-
tive answer, if that, in this paper. I have not tried to judge the quality of the hearings
held and reports produced by so many constitutional committees. That would be a
valuable exercise, but it was not the one guiding this paper. My approach has been
indirect. I have tried to reveal some of the constraints, inhibitions, silences, ambigui-
ties, and words not spoken, on the premise that these are no less informative about our
constitutional introspection than is the public record of what has been said and writ-

since the late 1960s, characterized much black political thought and leadership have made it more
difficult to find allies in the white community. Most recently, it has inhibited efforts to defend af-
firmative action in a politically effective way” (“Demonizing the American Dilemma” New York Re-
view of Books (19 October 1995) 10 at 14).

04 L. Gagnon, “The Political Mood Swings of Bouchard” The [Toronto] Globe and Mail (15 June

1996) D3.

,O See e.g. “Quebec Inuit Plan to Hold Own Ballot” The [Toronto] Globe and Mail (15 September

1995) A4.

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A.C. CAIRNS – WHY IS IT So DIFFICULT TO TALK TO EACH OTHER?

ten. I have tried to go beyond the standard question of the respective roles of leaders
and citizens in constitutional politics. That is only the starting point if we wish to
evaluate the quality of our constitutional discourse in terms of its openness, its fair-
ness and the integrity of the speakers.

We have, to our credit, employed words and silences, rather than fists and bullets,
in our constitutional exchanges on the Quebec-Canada front. Although there have
been several serious localized incidents of violence involving Aboriginal peoples, of
which Oka stands as the leading example, their emergence as serious constitutional
participants has been a markedly positive development. Issues have been raised that
had been kept dormant by the relegation of Aboriginal peoples to the sidelines for so
long.

These triumphs, however, tell only part of the story. We have been too quick, I
believe, to praise the civility of our constitutional debates. We also need to appraise
the damage we have inflicted on our civic selves, and the quality of our efforts to talk
our way to a different set of constitutional arrangements. Unless the tendencies exam-
ined in this paper are denied, or are considered to be seriously exaggerated, it appears
that our public constitutional introspection has had major shortcomings. There are
high barriers to open and candid discussion. As discussion is the only vehicle we have
for mutual education in a time of existential crisis, these shortcomings are profoundly
worrying. We speak to each other through distorting and distorted channels. Our
constitutional talk emerges out of a context of pervasive bias, silencing, fears, taboos
and ambiguity.

Ideally, we would recognize that our identities are shaped by our interactions and

actual dialogues with others.

It then follows that public recognition of our identity requires a politics that
leaves room for us to deliberate publicly about those aspects of our identities
that we share, or potentially share, with other citizens. A society that recognizes
individual identity will be a deliberative, democratic society because individual
identity is partly constituted by collective dialogues.1 6

Our identities, by contrast, are disproportionately shaped by our relative inability, as
fellow citizens, to talk across the internal national divides that weaken a pan-Canadian
sense of self.

The difficulties we have in speaking across the barriers that divide us impoverish
our public constitutional discourse, impede the possibility of an informed citizenry,
and enhance the possibility that our policy decisions will be based more on myth and
rhetoric than on reasoned analysis. We should therefore refrain from giving more than
a faint half-cheer for the quality of our constitutional discourse.

A. Gutmann, ed., Multiculturalism and “The Politics of Recognition” (Princeton: Princeton Uni-

versity Press, 1994) at 7.

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B. Why Is It So Difficult to Talk to Each Other?
I return to the query of my title: Why is it so difficult to talk to each other? Na-
tionalism, in my view, is the principal explanation. When the stakes are as high as the
breaking up of one civic nation, confronted with the sovereignty ambitions of Que-
beckers caught between their own ethnic and civic nationalism, and with the arrival of
a challenging Aboriginal nationalism emerging from the sidelines of Canadian his-
tory, the possibility of civil conversation among citizen colleagues or between
friendly governments sharing an agreed constitutional order is eroded. Nationalist
movements, convinced of their rectitude and their historic destinies, do not make easy
discussion partners. The rueful conclusion of this paper is that overcoming or ac-
commodating our divisions is impeded by the barriers that those very divisions put in
the way of civil dialogue.

If it is difficult to talk to each other because we are divided by nationalism, it begs
the question “Why are we divided?” We are divided by distrust and suspicion that
feed on past politics of failed recognition or misrecognition of Aboriginal peoples and
francophone Quebeckers as valued members of the Canadian community by their
fellow citizens. The disrespect historically accorded Aboriginal peoples, especially
status Indians, and the inability of governments and citizens outside Quebec to rec-
ognize Quebec constitutionally as a distinct society, have reduced the allegiance of
these communities to the country as a whole –
a country which their aggrieved
rhetoric confirms is not fully theirs. The resultant resentment and anger engenders and
sustains Aboriginal and Quebec nationalisms, through which their adherents seek
dignity and recognition. Nationalist movements, however, have great difficulty talk-
ing to each other; hence, our ability to learn from and about each other is severely
constrained. Whatever else we are, or were, we are not now a community of discus-
sion.

Why Is It So Difficult to Talk to Each Other?

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