Differentiated Citizenship and Reasonable Accomodation

In Culture, Citizenship, and Community (Chapter 8), Joseph Carens explains that aboriginal peoples do not want to be treated just as equal citizens, but they also want to be self-governing. In order to satisfy the demands of aboriginal peoples, Carens proposes that differentiated citizenship should be granted to them. Differentiated citizenship is a concept that applies the basic assumptions of the unitary model of citizenship (where all citizens are treated equally), but attempts to transcend this model by recognizing and respecting difference in aboriginal peoples. The problem with granting aboriginal peoples differentiated citizenship, however, is that it would require much more than reasonable accommodation on behalf of the Canadian government. To claim a need for differentiated citizenship is to state that the Canadian Charter of Rights and Freedoms (Charter) is inadequate in doing specifically what it has been designed to do—respect difference. Those who argue that Charter does fail to respect difference fail to understand it correctly.

Carens identifies one obstacle to the project of aboriginal self-government, which is the ‘hegemony of the unitary model of citizenship’. This is “the widespread view that any form of differentiated citizenship would be incompatible with the inclusion of aboriginal people in a Canadian political community in which they were full citizens and all citizens were treated equally” (Carens, 177). The principle essentially states that all citizens must be treated equally because any differentiated form of treatment would be incompatible in society. Charles Taylor’s ‘deep diversity’, on the other hand, is “an arrangement in which many aboriginal people would have a self-governing aboriginal community as their primary locus of political identity and participation while still being Canadian citizens” (Carens, 177).

Carens’ ideal vision for differentiated citizenship is a dialogue between aboriginal people and non-aboriginal people over the meaning of justice (Carens, 197). While Carens never goes into detail about how the results of such a dialogue can transcend the unitary model of citizenship (as he previously suggests it should), there is an implication that aboriginal peoples should be treated more than just as ‘equal citizens’, where ‘equal’ can be superficially understood as being in relation to other Canadian citizens. It does not matter whether or not differentiated citizenship is actually plausible because there are many aspects of justice that are implausible, but are still normatively required as a matter of justice. For example, although it is implausible to expect that all citizens are going to be treated equally as a matter of practicality, equal treatment of citizens should be strived for nonetheless.

Some advocates of aboriginal self-government argue that the Charter should not apply to aboriginal peoples mainly because of cultural differences between them and other Canadians (Carens, 189). Aboriginal peoples argue that their culture, practices, and beliefs is what shape their society and make it distinct, thus only aboriginal know the best practices for governing the society. Subjecting them to the Charter would limit their capacity to be self-governing. One obvious response to this claim is, yes, the Charter will limit their capacity to be self-governing. The Charter will be limiting to the extent, however, that the practices of aboriginal peoples will contradict the rights and freedoms of the Charter.
While treating aboriginal peoples with differentiated citizenship does allow them to govern themselves according to their own cultural beliefs and practices, it also suggests that the Charter is relative to certain Canadians. There are two aspects of ‘relative’ that must first be differentiated in order to understand the negative implications of considering the Charter to be relative. First, the Charter that is referred to is the one unique to Canada so it is relative, in this sense, to other countries. The argument for the potential universal applicability of principles in the Charter will not be addressed here since it is not relevant to the general issue. The second sense of the Charter being relative is as follows--if differentiated citizenship is applied to aboriginal peoples then this implies that the Charter is only useful in protecting the rights and freedoms of specific groups of people in Canada.

To allow certain groups of individuals to have privileges that transcend the Charter would promote fragmentation instead of foster respect for difference, where the Charter intends to protect difference. It must be remembered that Carens does not argue that the Charter should not be applied to certain aboriginal peoples. His aim is, rather, to show why this position is a defensible and plausible one (Carens, 192). But if the basis of treating aboriginals with differentiated citizenship means giving them privileges other Canadians do not have, namely, to be self-governing on the basis of vast cultural difference, then this view can neither be defensible nor plausible.

If aboriginal peoples are allowed to be self-governing on the basis of their different set of institutions, practices, and beliefs, then this opens the floodgates of other cultural groups in Canada who either want to be self-governing or want to have certain privileges that pertain directly to their culture that transcend the Charter. One claim that advocates of aboriginal self-government may make against this claim is that aboriginal peoples have unique entitlement to privileges because they were the first peoples (hence ‘First Nations’) to arrive in Canada. Other groups of cultural difference in Canada live there because they have immigrated, whereas aboriginal peoples have always been in Canada. To make this argument, however, would simultaneously permit discrimination on the basis of one’s country of origin.

Another more complex problem to the argument advocating differentiated citizenship and self-governance for aboriginal peoples is the fact that there are many different groups of people that are considered as aboriginal peoples. Each of these groups, naturally, has their own sets of customs. For example, while some groups of aboriginals want to be explicitly self-governing, the Métis would be satisfied with having some aspects of the Canadian Charter applied to them, while also having their own Charter. Questions arise such as—do we let all groups considered as aboriginal peoples to be totally self-governing, should some only be partially self-governing, what about individuals of aboriginal descent who live in major cities; should they also be entitled to differentiated citizenship?

While Carens claims that his ideal for differentiated citizenship is a dialogue between aboriginal and non-aboriginal peoples (Carens, 197), his argument contains undertones that more than just a dialogue is required to satisfy the needs of aboriginal peoples. Carens notes that “[p]aradoxically, greater respect for difference is more likely to generate more unity than any attempt to manufacture that unity directly” (Carens, 194). Difference must be acknowledged and respected. The challenge exists in balancing the distinction between respecting difference and fostering fragmentation.