1 Thomas v. Norris, [1992] 2Google ScholarCanadian Native Law Reporter (British Columbia Supreme Court), 139–63.Google Scholar

2 Ibid., 153–54.

3 Ibid., 151.

4 Regina v. Sparrow, [1990] 3Google ScholarCanadian Native Law Reporter (Supreme Court of Canada), 160–88.Google Scholar

5 Ford v. Quebec (A.G.), [1988] 2 S.C.R. 712–89.Google Scholar

6 Magnet, J. E., “Collective Rights, Cultural Autonomy and the Canadian State,” McGill Law Journal 32 (1986), 173.Google Scholar

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11 Ibid., 37. Arnopoulos and Clift argue that even the United States accepts collective rights more readily than does Canada through class action law, affirmative-action legislation and employment quotas. See ibid., 38.

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15 The Globe and Mail (National Edition), September 24, 1992, A5Google Scholar (emphasis added).

16 Trudeau, Pierre Elliott, Trudeau: “A Mess That Deserves a Big NO” (Toronto: Robert Davies Publishing, 1992), 1.Google Scholar

17 Patrick Monahan is one of the few constitutional scholars who expressly tries to avoid a discourse of absolutes when discussing the relation between the individual and community set out in the Charter. For instance, he argues that, in the language rights provisions of the Charter, “the exercise of individual rights [is] expressly contingent on the presence of community” (Politics and the Constitution [Toronto: Carswell, 1987], 112Google Scholar). Monahan's understanding of what rights entail might allow for a more flexible compromise between individual and collective rights.

18 Morton, , “Group Rights versus Individual Rights in the Charter,” 83.Google Scholar

19 See Young, Iris Marion, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990)Google Scholar; and Rhode, Deborah L., “Definitions of Difference,” in Rhode, Deborah L., ed., Theoretical Perspectives on Sexual Difference (New Haven: Yale University Press, 1990), 197–212.Google Scholar

20 The example is imperfect but in ways that help to illustrate this point. One might object that people who choose to dye their hair green will be treated differently by others and consider hair colour more central to their identity. One might also object that the phenomenon of women dyeing their hair lighter colours shows that women who strive to meet certain standards of attractiveness will be treated differently from those who reject these standards. The point is that different treatment of this sort has a profound impact on women's identities. See Wolf, Naomi, The Beauty Myth (Toronto: Vintage Books, 1990).Google Scholar

21 Taylor, Charles, Multiculturalism and “The Politics of Recognition” (Princeton: Princeton University Press, 1992), 25.Google Scholar

22 For example, insofar as residents of Alberta and Saskatchewan have different identities, these differences can be attributed to the political boundary that separates the two populations, which has led to the development of provincially divided patterns of association. For a discussion of this phenomenon in relation to Canadian federalism, see Cairns, Alan, “The Governments and Societies of Canadian Federalism,” this Journal 10(1977), 695–725.Google Scholar

23 See Kymlicka, Will, “Liberalism, Individualism and Minority Rights,” in Hutchinson, Allan C. and Green, Leslie J. M., eds., Law and the Community (Agincourt: Carswell, 1989), 190–93Google Scholar; Taylor, , Multiculturalism and “The Politics of Recognition”Google Scholar; and Young's discussion of cultural imperialism as one of the five faces of oppression in Justice and the Politics of Difference, 58–61.Google Scholar

24 A crucial question is which differences ought to receive protection. On what basis, for example, are identities that rely on sexism or notions of racial superiority denied recognition? Clearly, such identities are sometimes not denied recognition—the most extreme examples include the rise of Nazism in the 1930s in Germany and white supremacist views of Apartheid supporters in South Africa. Political culture, processes and historical circumstances all contribute to determining which differences are chosen to receive recognition and protection. With regard to the question of which differences ought to receive protection, refer to the perspectives offered by Buchanan, Allen E., “Assessing the Communitarian Critique of Liberalism,” Ethics 99 (1989), 852–82CrossRefGoogle Scholar, and Kymlicka, Will, Liberalism, Community and Culture (Oxford: Clarendon Press, 1989).Google Scholar

25 Young, , Justice and the Politics of Difference, 41–42.Google Scholar

26 Ibid., 53.

27 The author thanks one of the Journal's reviewers for pointing this out.

28 Quebec Protestant School Board v.A.G. Quebec (No. 2) (1983) 140 D.L.R. 64–65.Google Scholar

29 Cairns, Alan, “Constitutional Minoritarianism in Canada,” in Watts, Ronald L. and Brown, Douglas M., eds., Canada: The State of the Federation 1990 (Kingston: Institute of Intergovernmental Relations, 1990), 71–96Google Scholar. Amongst the sections cited as having this sort of impact are sections 15 (equality rights), 25 (Aboriginal rights), 27 (multiculturalism) and 28 (equality of men and women).

30 The primary purpose here is to outline the relevance of the difference perspective to jurisprudence. I offer observations regarding extra-jurisprudential ways in which a political system can celebrate difference purely in order to illustrate the potential richness of the difference perspective. I return to these possibilities at the conclusion of the article but, again, they are offered speculatively and will not be fully developed here.

31 Sparrow, 171.Google Scholar

32 Ibid., 176.

33 Ibid., 162.

34 Ibid., 163.

35 Ibid.

36 Identity-related arguments are precisely what are determinant in this decision. The decision does not preclude the hypothetical possibility of other groups securing similar fishing rights in the area if they can make the same sort of argument that the Musqueam made.

37 For a criticism of it see Boldt, Menno, Surviving as Indians: The Challenge of Self-Government (Toronto: University of Toronto Press, 1993), 32–38.Google Scholar

38 Michael Asch and Patrick Macklem argue in “Aboriginal Rights and Canadian Sovereignty” (Alberta Law Review 29 [1991], 498–517Google Scholar), that the Court's decision partly implies the recognition of aboriginal sovereignty which is “the totality of powers necessary or integral to the reproduction of aboriginal identity” (506). This seems mistaken; the Court specifically steers away from this implication by explicitly recognizing the sovereignty of the Canadian state (see Sparrow, 177).Google Scholar

39 Thomas, 154, 160.Google Scholar

40 Isaac, Thomas, “Individual versus Collective Rights: Aboriginal People and the Significance of Thomas v. Norris,” Manitoba Law Journal 21 (1992), 618.Google Scholar

41 Ibid., 626.

42 Will Kymlicka makes the useful distinction between community rights against internal dissent and community rights against external pressures. Individual dissent, as described earlier in the article, is an example of internal dissent. Restricting the fishing rights of non-Musqueam in order to protect the Musqueam culture is an example of limiting external pressures. See Kymlicka, Will, “Individual and Community Rights,” in Judith Baker, ed., Group Rights (Toronto: University of Toronto Press, forthcoming).Google Scholar

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44 Ibid., 155–56.

45 Ibid., 141, 142–43.

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47 See Tennant, Chris, “Justification and Cultural Authority in s. 35(1) of the Constitution Act, 1982; Regina v. Sparrow,” Dalhousie Law Journal 14 (1991), 383–84Google Scholar. Appointments and consulting mechanisms will not completely dissolve the problems of interpreting Aboriginal culture when different interpretations exist within the community regarding the role of a practice or tradition in the culture.

48 The efforts of the Native Women's Association of Canada to have some influence over negotiations for Aboriginal self-government are partly intended to steer Aboriginal communities and Canadian governments away from inaccurate and unprogressive interpretations of Aboriginal cultures.

49 Ford, 748–49.Google Scholar

50 Galipeau, , “National Minorities, Rights and Signs,” 77.Google Scholar

51 Ford, , 778.Google Scholar

52 Ibid., 779.

53 Ibid.; and Galipeau, , “National Minorities, Rights and Signs,” 76.Google Scholar

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