Indigenous Difference and the Constitution of Canada by Patrick Macklem (review)

humanities 335 university of toronto quarterly, volume 72, number 1, winter 2002/3 ... [T]hey leave us with the faith that the workers themselves will find a way to be human.= (RICHARD B. DAY) Patrick Macklem. Indigenous Difference and the Constitution of Canada University of Toronto Press. x, 334. $70.00, $27.95 Readers familiar with Patrick Macklem=s previous work on Aboriginal rights will recognize the core themes which have evolved into the more seasoned and comprehensive vision he presents in Indigenous Difference and the Constitution of Canada. Macklem effortlessly weaves together insights from the disciplines of law, politics, and philosophy, and in the process breathes new life into a debate which recently seems to have fallen out of academic and political fashion. Macklem is clear from the outset that he is interested not only in discussing what the law is, but also what it should be. Nevertheless, he is neither a cheerleader nor an unrelenting critic of the judiciary, presenting instead a balanced and thoroughly researched commentary on the judicial record in adjudicating the constitutional status of Aboriginal peoples. The theoretical backbone of his argument is that the constitution and the courts have a legitimate and essential role to play in facilitating a just distribution of power in a diverse democracy such as Canada. Macklem does not seek to establish the courts as the ultimate decision-makers in the domain of Aboriginal-state relations, but he is convinced that they must play a role in levelling the playing field, thereby placing Aboriginal peoples in a more viable negotiating position with the Canadian state. In this sense, the appropriate constitutional recognition of Indigenous difference does not compromise the principle of equal citizenship but rather reinforces it by placing Aboriginal peoples on a more equal footing with Canada=s nonAboriginal citizens. Macklem builds his case around the fairly simple observation that Indigenous peoples have a unique constitutional relationship with the Canadian state. However, his elucidation of the normative and practical foundations of this observation is far from conventional. Particularly valuable is the corrective he provides to the narrow culturalist understanding of Indigenous rights that has become so prevalent in recent decisions of the Supreme Court of Canada. For Macklem, cultural difference is a key element in the universe of Indigenous difference, but it does not exhaust the content of that universe. His own more sophisticated conception of Aboriginal difference has four distinct elements B culture, land, sovereignty, and treaties B all of which are grounded in the fundamental underlying principle of equality. Each of these distinct elements of socio-historical difference generates its own unique set of normative justifications, which xxxxxxxx 336 letters in canada 2001 university of toronto quarterly, volume 72, number 1, winter 2002/3 in turn yield distinctive sets of Indigenous interests and corresponding constitutional rights and entitlements. Macklem ventures further than many contemporary judicial analysts by supplementing his criticism of Canadian law with recommendations for alternative interpretive strategies for adjudicating Aboriginal rights, including the contentious issue of applying the Charter to Aboriginal governments. Moreover, in addition to building a case for negative state duties to recognize and respect increased Aboriginal autonomy and legislative authority, Macklem=s approach is further distinguished by his call for positive state duties, both to promote the effective realization of social and economic benefits among the Aboriginal population, and to negotiate treaties in good faith with Aboriginal governments. In making these claims, Macklem also does well not to ignore politics in his treatment of the law, and pays close attention to issues of institutional legitimacy and institutional competence in judicial decision-making. A nice addition to the book might have seen Macklem engage with the recent arguments of Alan Cairns, who sees a preference for law over politics among many of the scholars working in this area, a tendency which he feels has a corrosive effect on a sense of common citizenship, solidarity, and mutual obligation among Aboriginal and non-Aboriginal peoples in Canada. Macklem=s case might also have been strengthened by a more thorough discussion of the relationship between judicial decisions and political practice. For example, can positive court decisions have a significant impact in the absence of the political...