How Do Public Institutions Apprehend Aboriginal Identity?
I am currently writing a book (entitled Reasons of Identity) which explores the ways in which public institutions apprehend – i.e. understand, use and reason about – the identities of minority groups. In the next five years, one the questions that will be the focus of my research in association with the Aboriginality and Governance project is, how do public institutions apprehend Aboriginal identity? This question and the concerns it raises are at the heart of all discussions of so-called collective rights because the specific shape that a collective right takes depends on what is considered important to the identity of the collectivity in question. I am interested in the national and international dimensions to this question in relation to Aboriginal peoples.
In Canada, the question of how public institutions apprehend Aboriginal identity leads, in the first instance, to the work of the Supreme Court of Canada in the last 10 years where the court has developed a test, known as the distinctive culture test, by which several Aboriginal claims have been assessed. The ‘distinctive culture test,’ is applied in a trilogy of cases: R. v Van der Peet, Mitchell v MNR and R v Powley and has raised several concerns, four of which are:
- that the test essentializes Aboriginal identity;
- that it legitimates ethnically biased perspectives of settler society especially around the myth of ‘contact’ and the meaning of ‘society’;
- that it draws into questions important values, beliefs and practices that ought not to be publicly scrutinized, and
- that, by focusing on the issue of what is distinctive about Aboriginal identity, the test provides a convenient way for institutions to avoid the primary issue at stake in many Aboriginal rights cases, which is the issue of who has sovereignty – the Canadian state or Aboriginal communities - to determine the nature of Aboriginal rights.
Several of the scholars working in chantier/domain 2 have already written about Canada’s distinctive culture test or issues closely related to the test (Asch, Christie, Napoleon, Macklem).
I am interested in using their work (and expertise) to go beyond the immediate problems with the Supreme Court of Canada’s application. My research so far suggests that public institutions cannot resolve inter-societal and minority rights conflicts without, in some ways, assessing the identity of the groups involved. Therefore, the main issues that interest me are how such assessments take place and how they can take place fairly. More specifically, can public decision-makers assess the identity of a community without essentializing the community’s identity in problematic ways, without imposing bias, or distracting from other justice-based issues - such as self-determination, racism, poverty, etc.
The main question of how Canadian public institutions apprehend Aboriginal identity also has some fast-developing international dimensions. Identity-based arguments are increasingly used in the context of international decision-making, through transnational and international organizations and forums, and in association with the interests of cultural minorities, including indigenous peoples. In some respects, there is nothing new about these arguments or their use by international actors. The United Nations Human Rights Committee has commented on many conflicts over the last 20 years involving indigenous peoples in which an informal set of criteria, similar along some dimensions to Canada’s distinctive culture test, are used to assess contested claims. In addition to being less formal (i.e. not a legal ‘test’), the criteria of the UNHRC are more open-ended than those used in Canada’s test, and have included, for instance, protection for practices that sustain a group’s survival in relation to economic activities. More recently, the World Trade Organization has assessed identity-based arguments which are advanced on behalf of groups that seek to protect the food supplies of indigenous peoples against genetically-modified alternatives by arguing for the protection of indigenous ways of life.
Despite the increased salience of identity-based arguments at the national and international levels, to my knowledge there is no comprehensive survey of the ways in which community-based, national, international and transnational institutions apprehend identity-based claims or use identity-based tests or criteria to assess such claims. My aim is to provide such a survey. The survey will then become the basis of an analysis which will compare Canada’s approach (primarily, though perhaps not solely the distinctive culture test developed by the courts), with the approaches adopted in international and transnational institutions. The analysis will endeavour to explain why public institutions are enthusiastic to frame disputes and claims in terms of identity and what accounts for the different ways in which such assessments take place nationally and internationally. Another aim of this research is offer a critical assessment of the approaches adopted, to determine how or whether they might avoid the four main problems mentioned above (essentialism, ethnic bias, critical scrutiny of identity-based evidence, and distraction from the self-determination), which have been the focus of critical commentary until now. A final aim is to determine what sorts of general limitations and prospects we should expect from identity-based approaches for managing inter-societal conflicts.
The project I’m proposing might be linked to the work done in each one of the chantier/domains, depending on the direction taken within the domains (which isn’t entirely clear to me at this time and, I expect, won’t be clear until after this first conference). Here are some of the specific questions I wish to address which might be related to work being pursued in the domains:
- How do (national/international) public institutions apprehend (understand, interpret, use, or reason about) Aboriginal identity in the context of setting policy about Aboriginal rights or trying to settle disputes between different communities (usually settler-indigenous disputes but could include disputes between different indigenous communities)?
- How do these arguments enter decision-making (e.g. who introduces them?) and are they avoidable? How to settler institutions avoid them (if at all)? How do Aboriginal institutions avoid them (if at all)?
- How are collective rights shaped by considerations about identity?
- Has there been a change in the frequency or extent to which (national/international) public institutions frame conflicts in terms of identity? If so, what might account for this change?
- What are the key problems or limitations associated with this kind of framing?
- What are the prospects or benefits associated with this kind of framing?
- How, if at all, might the limitations or problems be addressed?
- Can arguments advanced by indigenous people which are framed in terms of their identities or what their identity requires, be a source of power or are these arguments disempowering? Under what circumstances have they been and can they be empowering?
Secondary project: Recognition and indigenous participation in mainstream institutions
I have an on-going interest in questions related to indigenous political representation and participation in settler institutions. So far, my work on this subject has focused on the ambivalence expressed by many Aboriginal peoples about participating in Canadian mainstream institutions, including legislatures, courts and bureaucracies. The arguments usually advanced to explain this ambivalence are not entirely convincing. I’d like to continue working in this area to develop a set of questions that ask not only why the ambivalence exists, but more specifically what are the costs and benefits for Aboriginal communities to participate in mainstream institutions. To date, much of the work I’ve done on this looks at theories of recognition and how the identities of dominated and fragile communities are vulnerable to being distorted and co-opted when they are ‘recognized’ by more powerful dominant communities even when this recognition takes place on terms that seem to be sensitive to the circumstances of fragile communities. For instance, group representation rights are an example of a policy of recognition that is sensitive to the circumstances of fragile communities. I’m interested in looking at how this concerns are manifested in concrete relations between Aboriginal and settler communities in the context of efforts to increase Aboriginal participation in Canadian public institutions and what if anything can be done to reform public institutions so that they don’t dominate and distort the identities of those they invite to participate (even through group representation schemes).
