In this study, I undertake a discourse analysis of struggles over representation as they were manifested in the Charlottetown referendum campaign. I utilize transcripts taken during the campaign derived from the CBC news programs The National, The Journal, and Sunday Report as well as from The CTV News. The issue of (im-)partiality provides the analytical focus for this study. Who can legitimately speak on behalf of whom, or, to what extent do individuals have a particular voice which places limitations on whom they can represent? On the one hand, underlying what I call the ‘universalistic’ discourse is the premise that human beings can act in an impartial manner so that all individuals have the capacity to speak or act in the interests of all other individuals regardless of the group(s) to which they belong. On the other hand, a competing discourse based on group-difference’ maintains that all representatives express partial voices depending on their group-based characteristics. I argue that the universalistic discourse was hegemonic in the transcripts but, at the same time, the group-difference discourse was successful at articulating powerful counter-hegemonic resistance. Ironically, the universalistic discourse was hegemonic despite widespread assumptions of partiality on the basis of province, region, language, and Aboriginality. This was possible because the universalistic discourse subsumed territorial notions of partiality within itself. In contrast, I argue that assumptions of Aboriginal partiality will likely diffuse themselves to other categories, beginning with gender, in the future. I also describe the strategies used by the competing discourses to undermine one another. The universalistic discourse successfully portrayed the group-difference discourse as an inversion to a dangerous apartheid-style society where individuals were forced to exist within group-based categories. The group-difference discourse used the strategy of anomaly to demonstrate that individuals were inevitably categorized in the universalistic discourse; impartiality was a facade for a highly-partial ruling class. In examining these strategies, I demonstrate that the group-difference discourse justified its own position by making assumptions about the operation of power and dominance in society. Thus, impartiality was impossible not for the post-modern reason that inherent differences make representation highly problematic, but because power relations hinder the ability of representatives to act in a truly impartial manner.

Since 1982. the Canadian Constitution has "recognized and affirmed the Aboriginal and treaty rights of the Indian, Inuit, and Métis peoples of Canada," peoples that hold their unique status within the federation by virtue of their prior social organisation. The author argues that, when Aboriginal rights are invoked, analysis should focus on the community in which the right is said to reside. Contemporary rights-holding communities are those linked to the normative orders that preceded and survived those of the later arrivals: in this regard, the Métis are not dissimilar from the other recognised Aboriginal peoples. It is the community's capacity to determine the norms applicable to its members' lives that is important, not the actual content of that order at a particular time: Aboriginal societies must be afforded the latitude to pursue their own aims and ambitions, and their rights must not be limited to activities that appear objectively 'Aboriginal".

Over the last 30 years, the concept of culture has gained increased ground in Canadian jurisprudence on Aboriginal and Treaty rights under section 35 of the Constitution Act, 1982. This thesis focuses on the gendered nature of the court’s culturalist method of interpreting and adjudicating s.35, arguing that it acts as a containment strategy with respect to Aboriginal and Treaty rights generally, and Indigenous women’s rights in particular. Specific focus is given to the frequent and extreme rights infringements experienced by Indigenous women in Canadian contexts. This project foregrounds Indigenous narratives, Treaty-based and otherwise, as a way of inspiring a s.35 framework that extends well beyond the confines of culture and provides more equitable, comprehensive and substantive protection for a broad range of Aboriginal and Treaty rights within Canadian legal and political institutions. / Graduate

In this study, I undertake a discourse analysis of struggles over representation as they were manifested in the Charlottetown referendum campaign. I utilize transcripts taken during the campaign derived from the CBC news programs The National, The Journal, and Sunday Report as well as from The CTV News. The issue of (im-)partiality provides the analytical focus for this study. Who can legitimately speak on behalf of whom, or, to what extent do individuals have a particular voice which places limitations on whom they can represent? On the one hand, underlying what I call the ‘universalistic’ discourse is the premise that human beings can act in an impartial manner so that all individuals have the capacity to speak or act in the interests of all other individuals regardless of the group(s) to which they belong. On the other hand, a competing discourse based on group-difference’ maintains that all representatives express partial voices depending on their group-based characteristics. I argue that the universalistic discourse was hegemonic in the transcripts but, at the same time, the group-difference discourse was successful at articulating powerful counter-hegemonic resistance. Ironically, the universalistic discourse was hegemonic despite widespread assumptions of partiality on the basis of province, region, language, and Aboriginality. This was possible because the universalistic discourse subsumed territorial notions of partiality within itself. In contrast, I argue that assumptions of Aboriginal partiality will likely diffuse themselves to other categories, beginning with gender, in the future. I also describe the strategies used by the competing discourses to undermine one another. The universalistic discourse successfully portrayed the group-difference discourse as an inversion to a dangerous apartheid-style society where individuals were forced to exist within group-based categories. The group-difference discourse used the strategy of anomaly to demonstrate that individuals were inevitably categorized in the universalistic discourse; impartiality was a facade for a highly-partial ruling class. In examining these strategies, I demonstrate that the group-difference discourse justified its own position by making assumptions about the operation of power and dominance in society. Thus, impartiality was impossible not for the post-modern reason that inherent differences make representation highly problematic, but because power relations hinder the ability of representatives to act in a truly impartial manner. / Arts, Faculty of / Political Science, Department of / Graduate

La Cour suprême du Canada (« Cour ») prône « ses propres valeurs» dans la détermination des droits économiques des Autochtones, dont la prédominance des intérêts économiques des non Autochtones, ainsi que la protection du couple souveraineté canadienne/primauté du droit. Ces valeurs sont maintenues avec constance par la Cour, malgré l'évolution du cadre juridique canadien applicable aux revendications des droits économiques par les Autochtones. Ce mémoire démontre que, depuis la constitutionnalisation des droits économiques des Autochtones en 1982, le domaine de la preuve - tant par l'invocation de règles de preuve que par l'appréciation de la preuve - est le principal outil invoqué par la Cour en rhétorique au soutien de la détermination des droits économiques des Autochtones selon ses propres valeurs. De plus, notre recherche nous a également permis de formuler plusieurs critiques relatives à l'indiscipline de la Cour dans l'application du domaine de la preuve dans les décisions portant sur les droits économiques des Autochtones. / When determining the scope of Aboriginal economic rights, the Supreme Court of Canada (« Court ») values the economic interests of non-Aboriginals and the reaffirmation of Canadian sovereignty/rule of law over Aboriginal claims. These values are advanced by the Court despite developments in the Canadian legal framework applicable to Aboriginal economic rights claims. This thesis demonstrates that, since 1982, when Aboriginal economic rights were granted constitutional protection, the Court began to utilize the law of evidence to justify the espousal of their values when determining the scope of Aboriginal economic rights. The Court manipulates both its weighing of the evidence and the rules of evidence in order to justify their values. My research has led me to develop several criticisms related to the methodology used by the Court in its manipulation of the rules and in its appreciation of evidence.

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