2. ?
• You have just purchased a home in a new
community development and after moving in
you have discovered that your home is built
on a sacred Aboriginal burial site. Aboriginal
people have been contesting the
development of this land for years and have
now decided to publicly protest on the
building site. How would you view this
situation and what would you do?
3. Discourses of Special Rights
• In Canada a discourse of special rights when it comes to the
relationship between Aboriginal and non-Aboriginal people
• This discourse a source of conflict and contention among Aboriginal
and non-Aboriginal people within the national framework and
discourse of nation.
• Segments of dominant society view Aboriginal special rights as and
advantage, even though history has shown the opposite
• Ramos argues that there is a disconnect between perceptions and
applications of so-called “special” rights.
• Ramos looks critically at this dissonance though an analysis of
dominant media newspaper coverage of the 1999 Marshall decision
and the conflict between Mi’kmaq and non-Aboriginals that
followed
4. Discourses of Special Rights
• The federal government legally defines Aboriginal
people, traced back to the Royal Proclamation of 1763,
which declared Aboriginal people be treated as nations
and compensations for lands taken from them be
made directly by the Crown. Thus, there was
recognition the prior existence of First Nations and
their sovereignty.
• Royal proclamation followed by a series of Indian Acts
and treaties with the aim of systematically eliminating
the authority of pre-existing Aboriginal governments,
obtain their lands and assimilate them
5. Indian Act: A State Tool of Aboriginal
Oppression
• Indian Act and treaties saw the demonization and
loss of Aboriginal language, cultural practices,
beliefs, customs, identities and the founding of
Indian reserves and residential schools.
• Federal government assumed fiduciary
responsibilities. Aboriginal people seen as wards
of the state. Created a legally defined
marginalized people
• Indian Act dictated who is and who is not an
“Indian”. Four categories emerged: Status
Indians, non-Status Indians, Metis, Innuit
6. Special Plus or Negative?
• Constitution Act of 1982 Canadian government reaffirmed
“Aboriginal” rights. It differentiated Aboriginal from other
Canadians and recognized their “special” rights
• Many Canadian believe their recognition is unfair.
Argument is it grants privileges others don’t have.
• Paradoxical situation in Canadian society where non-
Aboriginal Canadians say they have sympathy for
Aboriginals, but as issues become more concrete this
wanes, and the argument becomes why should they pay
tax dollars because of treaties signed with the British
centuries ago
• Many Canadians see special status as running counter to
tenets of liberal democracy
7. Special Plus or Negative?
• Ramos argues to recognize Aboriginal group rights is
not necessarily to contradict the tenets of liberal
democracy. Argues that through the recognition of
their group rights equality can be achieved.
• Argues that in a democracy minority groups do not
have the numerical power that is necessary to have
their needs met in processes of democratic decision-
making.
• Equality can only be achieved if Aboriginal rights are
recognized
8. Special Plus or Negative?
• Ramos argues that the term “special” has 2
meanings one positive which is seen as a plus or
addition, and the other negative which is seen as
harmful, marked, peculiar, uncommon and limited.
• Many Canadians see recognition of Aboriginal group
rights as special plus
• Reality is special has been negative for Aboriginal
people
9. Special Plus or Negative
• Indian Status established to reduce their power;
special status used to isolate and stigmatize
Aboriginal people
• Meant lose of land and material resources,
displacement, disenfranchisement, residential
schools, destruction of cultural practices,
discrimination and control by state and thus not a
privilege
10. Special Plus or Negative
• 1969 White Paper on Indian policy which was based
on universal citizenship ignored the group rights,
cultural differences and past treaties of Aboriginal
people. It proposed to eliminate their special status
and abolish past agreements. Special was seen as
discriminatory –as offering them rights that others
could not enjoy
• Up to today Aboriginal and federal/provincial
government have different perceptions of Aboriginal
rights which has implications for their negotiations
with one another
11. Special Plus or Negative?
• One hand governments trying to negotiate institutional and
societal incorporation of Aboriginal peoples into Canada and
on other hand Aboriginal peoples trying to negotiate
preservation of their culture, institutions and practices
• Several supreme court decisions have been willing to uphold
Aboriginal rights, but these decisions made and implemented
in a society that is unprepared to reverse historical
inequalities
12. Marshall Decision: Triumph and
Disappointment
• Donald Marshall charged with fishing out of season, fishing
with illegal nets, and selling eels without a licence. Pleaded
not guilty, arguing it was his treaty right as a status Mi’kmaq
to fish and sell his catch citing the 1760 treaty signed by the
British and Mi’kmaq
• Provincial trial and appeal found him guilty, the Supreme
court tried the case and overturned the decisions of the
provincial court. Applied looser interpretation of the 1760
treaty and found that Mi’kmaq had the right to hunt, gather
and sell goods. These rights were limited to the ability to
sustain a modest living and regulation leaving terms open to
negotiation between Mi’kmaq and federal government
13. Marshall Decision: Triumph and
Disappointment
• This decision saw Mi’kmaq trapping lobster in Miramachi Bay.
• East coast lobster fishery multi-million dollar industry that
had been closed to the Mi’kmaq for decades, due to the
professionalization of the industry in the 1970s which
required advanced machinery and expensive licences that
Mi’kmaq because of the lack of collateral could not obtain.
Thus this supreme court decision meant the Mi’kmaq now
had the right to legitimately fish, set traps and sell catches
without a licence. This had a deep felt impact on Mi’kmaq
community who because of because of their exclusion from
the fishing industry had seen high rates of unemployment
14. Marshall Decision: Triumph and
Disappointment
• Created a conflict for non-Aboriginal commercial fishermen
who had licences and were not able to fish because the
season was closed. They believed they were being excluded
from the “special” rights offered to Aboriginals. They feared
lose their edge in the market and would lose money if their
fishing licences lost their value
• They framed their resistance by arguing Mi’kmaq fishermen
would lead to problems of overfishing and conservation
• The issue was about sharing not conservation. Non-
Aboriginal fishermen worried about having to share profits
than about depleting lobster stocks. Also fear that their
licences would be devalued.
15. Marshall Decision: Triumph and
Disappointment
• When government had tried to buy licences from non-
Aboriginal fishermen to give to Aboriginal fishermen they
hiked their prices to as much as a million dollars
• There was little consideration by non-Aboriginal fisherman
how before Marshall decision, Aboriginal people had been
excluded from the fishery by financial barriers and purposeful
exclusion
• Non-Aboriginal fishermen interpreted the situation as a case
of special plus for the Mi’kmaq, in that it gave Aboriginals
rights beyond those to which others were entitled; they did
not view it as the confirmation of a historical contract or as
offering the excluded access to an otherwise closed industry
16. Marshall Decision: Triumph and
Disappointment
• Decision provoked ensuing violence which saw the
destruction of Aboriginal lobster traps and tit-for-tat violence
among Aboriginal and non-Aboriginal fishermen
• Non-Aboriginal fishermen wanted everyone both Aboriginal
and non-Aboriginal to be treated the same. But what the
non-Aboriginal fishermen and Canadian failed to appreciate
was that Aboriginal peoples are not the same as other
citizens; they are legally recognized. Moreover this special
status often led to special negative treatment. Historically for
Mi’kmaq ‘special’ status led to being unable to access fishing
licences and exclusion from traditional livelihood
17. Marshall Decision: Triumph and
Disappointment
• Response to the violence was the push from government for
Aboriginal compliance to halt fishing; also political
commentators began to critique Supreme Court decision
• Fisheries minister Herb Dhaliwal was charged with
negotiating an agreement between Aboriginal leaders and
non-Aboriginal fishermen. Meanwhile, non-Aboriginal
fishermen engaged in racist protest
• While 35 bands reached an agreement 2 (Burnt Church and
Indian Brook) were unwilling to stop fishing while Dhaliwal
tried to impose new limits on # of traps
• The trap limits set for Aboriginal people were
disproportionate to that of non-Aboriginal fishermen.
18. Marshall Decision: Triumph and
Disappointment
• By setting a limit Dhaliwal circumventing the process for
negotiating a “modest living” and “regulation”. The message
sent to Aboriginal peoples: the government was willing to
negotiate so long as bands were willing to accept whatever
the government offered. Result was halt to the moratorium
on fishing by Aboriginal people, this led to further violence
and protest
• Continued criticism of the Supreme Court decision ; belief
that ruling in favor of one ‘Charter group’ would apply to all
others also that profit sharing and control of natural
resources would soon escape the control of the federal
government
19. Marshall Decision: Triumph and
Disappointment
• In response to criticism the Supreme Court ‘clarified’ its
decision and accused federal government, Aboriginal people
and non Aboriginal fishermen of misinterpreting decision.
Argued that initial decision clearly stated that it was subject
to governmental regulation and that it only applied to fishing
• Government’s power to regulate the treaty is repeatedly
affirmed by the decision. This clarification took away the
decision’s power to set a precedent for claims in other
resource development sectors. This rendered Marshall much
less ground-breaking
20. Marshall Decision: Triumph and
Disappointment
• Thus although Marshall should have bolstered Aboriginals
rights, better enabling them to survive though traditional
livelihoods and compete in the dominant economy, it ended
by being another example of special negative consequences.
Largely because the federal government did not uphold the
Court’s decision and because segments of the non-Aboriginal
community felt threatened by the perceived advantage of
Aboriginal ‘special’ rights
• Marshall decision and ensuing events tells us that perceptions
of Aboriginal special status must be examined. Need to
engage with the misperceptions of ‘reverse discrimination’
that are associated with special plus rights, with specific
reference to the history of special negative applications
