Home / Vol.14, n°3 / Only if “je est un autre” Can I Recognise You: Reflections on Canada’s Process of Constitutional Recognition of the “Preexistence of Distinctive Aborignial Societies”

1er Prix du concours d'initiation à la recherche organisé par le Regroupement Droit et Changements.

The Indian Act still institutionalises numerous facets of what it is to be “Indian” for many individuals in Canada and a change of perspective must be achieved. This essay solicits philosopher Theodor Adorno’s thought to reflect on Canada’s attempts at legal recognition of Aboriginal individuals and societies under section 35 of the Constitution. Adorno’s 1966 theory of the Negative Dialectics on the relationship with alterity is presented on the basis of commentary by Professor Drucilla Cornell, in order to identify what his prescriptions on establishing non-oppressive relationships would imply for Aboriginals and non-Aboriginals and their governments today. The Negative Dialectics is particularly relevant to Canada’s attempt at judicial recognition of the existence of Aboriginal societies, both because of their marginalised status and of their claim to specificity. 

Having established such a framework, the author then argues that previous attempts at recognition have been flawed by disagreements on the values involved and the concepts referred to. The 1871-1921 Numbered Treaty process is used as an illustration because of its result, today often characterised as coercive and unfair, despite the general discourse of equal-footing bargaining which has surrounded it. Contemporary critique of the current policy aimed at the implementation of self-government through negotiated agreements is also raised to illustrate that disagreement as to the way Aboriginal peoples are recognised by the Canadian State has endured. The author suggests that, from the perspective of the Negative Dialectics, such disagreements must be addressed to achieve less oppressive relationships.

The author concludes that the Negative Dialectics imposes both to consider oneself (“je est un autre”) and the other as beyond the limits of our thought. The Supreme Court has already acknowledged that the sole perspective of the common law is not sufficient to achieve reconciliation of Aboriginal and Crown sovereignties under the Constitution. The common law concept of fiduciary presents an interesting legal vehicle for possible further reconfiguration by the Canadian government of its attitude towards Aboriginal peoples, prioritising process over results and relationship over certainty. Nonetheless, it must be remembered that consideration of Aboriginal peoples by the Canadian state through Adorno’s eyes not only presents the challenge of including new perspectives, but also that of questioning fundamental assumptions about the Canadian community in general.