Macklem confronts these challenges and the internal and reverse Charter challenge created by section 25 which directs
the courts not to interpret the Charter to "abrogate or derogate" from the rights of Aboriginal people.
Some First Nations citizens, notably women, fear that this section is being used to perpetuate problems such as
male-dominated First Nations governments ("First Nations" is not a legally defined term, but it is the
accepted and widely used term for: (1) the land base occupied by status Indians--the reserve which is similar to
"reservations" in the United States; and (2) the Indian band and its members who occupy and use the reserve
land base, including those members who may not be resident on-reserve). As he does in each chapter, the author
uses extensive case law, established academic discourse and an analysis based on his own wealth of experience as
a constitutional law professor at the University of Toronto to respond. Although some scholars would not agree,
Macklem suggests that the Charter "authorizes judicial reorganization of Aboriginal societies according to
non-Aboriginal values." Whether that is a Charter purpose or not, it does compromise, if not endanger, Indigenous
difference. In response, Macklem points out that the Charter also contains sections that may be implemented to
minimize negative effects and, more importantly, that section 25 ought to (and does thus far) act as "shield"
for laws that protect Aboriginal political, cultural and territorial interests. Similarly, other chapters of INDIGENOUS
DIFFERENCE examine state obligations, land rights, treaty
obligations and other issues as the book sets out Macklem's thesis.
Macklem's general thesis is that Indigenous difference "possesses constitutional significance" and that
the Constitution Act 1982, through three sections which deal very directly with the rights of, and jurisdiction
for, Aboriginal
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Peoples of should protect cultural differences, along with treaty rights, unextinguished Aboriginal title to large
areas of Canada's land base, sovereignty, and the recognition of rights such as tax exemptions and funding for
education Canada ("Aboriginal Peoples of Canada," is the official Government of Canada term used for
general reference to all Indigenous peoples in Canada--status Indians, non-status Indians, the Metis and the Inuit).
The extension of the thesis and an element of Macklem's methodology is that constitutional recognition of Indigenous
difference actually furthers equality.
Equality itself, however, is somewhat problematic in INDIGENOUS DIFFERENCE because Macklem appears to have fallen
into the trap of many commentators on Aboriginal rights - the failure to note and then deal with the arbitrary,
but solidly legal, differences among Indigenous peoples in Canada that were created by colonial powers and perpetuated
by the Canadian state. The author gives brief mention in his introduction to the Metis people who alone constitute
about a third of the Indigenous people of Canada. Not directly considered at all are the vast numbers of non-status
Indians--those who by legislative legal definition are not Indians according to the federal government--and the
Inuit who form the overwhelming majority in the new Nunavut Territory. Thus, when Macklem discusses Indigenous
or Aboriginal people, his reference is to the minority, who are registered as "Indians" with the government,
and their reserve or First Nations lands. Unfortunately, that approach perpetuates the very divisiveness fostered
by the Indian Act (R.S.C. 1985, c. I-5) that created the divisions. Notably missing is the fact that, rather than
being engaged in debate about the dimensions and protection of their rights, most Aboriginal peoples in Canada
do not have any distinct legal rights.
Also unfortunate in this and other respects is the use of the term "Indigenous," which suggests inclusion
of all Aboriginal peoples, in the title and throughout the book. Although the author has his own justification
for the application of the term, it is a term rarely used by Aboriginal people in Canada and all but non-existent
in Aboriginal organizational names. From a legal perspective, it is more problematic because it is not used in
the Constitution or in any legislation dealing with Aboriginal people.
More positively with respect to his thesis, Macklem has made a safe assumption that mainstream Canadian politics
have moved to the right on Aboriginal rights and title issues, and Canadian courts were already indicating a willingness
to follow as he was writing and publishing his INDIGENOUS DIFFERENCE. In anticipation, he has provided legal strategies
that those who advocate in this field will recognize and understand, and supporters of Aboriginal rights will hope
that the judiciary also read the book. The author has stated the obvious for the experienced, but it is both basic
and advanced for the less initiated. Also, while INDIGENOUS DIFFERENCE is more like an advanced thesis than a teaching
text, an upper year class in advanced Aboriginal law at Canadian law schools could well use it.
Two other points bear mention. First, Macklem consulted extensively with Aboriginal people, and while that did
not cure the mentioned problems with exclusivity, it allowed significant inclusion of Aboriginal views both at
the scholarly and community levels. Second, the author set his introduction and conclusion on
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Manitoulin Island, a very large island in Lake Huron, and, unlike any other location in southern Canada, a place
where Aboriginal and non-Aboriginal peoples are equally distributed by population and manage to coexist very well.
Like the present state of Oklahoma in the U. S., Manitoulin was originally set aside as "Indian territory"
in perpetuity, and also like Oklahoma, the promise of exclusive rights to territory was broken and the island was
opened to settlers. More importantly for Aboriginal people in the present, Manitoulin remains the location of many
sacred sites. It was a place where Ojibway, Odawa and Potawatomi leaders and healers sought visions. Some of those
visions predicted accurately that Aboriginal people would survive and be strong against impossible odds in the
face European
colonialism. Macklem makes the connection between that survival, with great loss, and constitutional recognition
of the surviving differences in the form of Aboriginal sovereignty and territorial integrity.
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Copyright 2001 by the author, Tom Jewiss.