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Mapping the Legal Consciousness of First Nations Voters: Understanding Voting Rights Mobilization

"The universal franchise has become, at this point in time, an essential part of democracy. From the notion that only a few meritorious people could vote (expressed in terms like class, property and gender), there gradually evolved the modern precept that all citizens are entitled to vote as members of a self-governing citizenry. Canada's steady march to universal suffrage culminated in 1982, with our adoption of a constitutional guarantee of the right of all citizens to vote in s. 3 of the Charter."Footnote 1

Chief Justice Beverley McLachlin
Sauvé v. Canada (2002)


Introduction

The issue of Aboriginal electoral participation arises not out of concern about how individual Aboriginal voters vote, that is to say, which candidates or party they support, but rather with electoral participation writ large, whether or not they vote at all. The pattern of electoral participation for Aboriginal peoples varies greatly, depending on context. There is a common pattern of low Aboriginal voter participation in federal elections. In the 2000 federal election, Daniel Guérin determined that voter participation on First Nations reserves was 48%, 16% below the overall participation rate.Footnote 2 At first glance, low turnout among Aboriginal voters should not be surprising. As Alan Cairns has observed, "Part of the explanation is practical. Many urban Aboriginal persons move frequently, have low literacy levels, are unemployed, are disconnected from mainstream society and are distanced from the discussion process that attends federal elections."Footnote 3 In Nunavut, which is composed of a majority of Inuit people, voter turnout appears to be the lowest in the country at federal elections: 54.1% in 2000, 43.9% in 2004, 54.1% in 2006 and 47.4% in 2008, well below the national turnout.Footnote 4 Yet, in other elections, participation rates among Aboriginal voters has been very high. In Nunavut, for example, the electoral participation in its first two territorial elections was very high – 88.6% in 1999, 93.7% in 2004 – but declined significantly in 2008 to 71%.Footnote 5 There are familiar explanations for these patterns. These patterns reflect, it is often said, the fact that Aboriginal peoples in Canada, on the one hand, are alienated from many legislative bodies such as the Parliament of Canada and most provincial legislatures and, on the other hand, view other legislative bodies such as that of the territory of Nunavut as an embodiment of their identity as distinct communities or nations within the Canadian state.Footnote 6 Elections for the latter are to be characterized by high voter turnout among Aboriginal persons whereas elections for the former yield lower turnout.

This paper seeks to explore an alternative approach to the research on Aboriginal electoral participation by building on the insight that electoral participation is fundamentally a matter of rights mobilization. When Canadians vote in federal elections, this is not merely an instance of participation in the democratic process, it is also an exercise of a fundamental right of citizenship. Voting from this perspective is a reflection of an important legal status within the relevant community, a social status embedded in legality. In turn, when individuals do not vote, they are failing to mobilize rights, which is a reflection of both how they see themselves in relation to that community and their status among others within that community. The relevant point is that aboriginal electoral participation is a gauge on the identity of individual Aboriginal voters and what having the right to vote means to them.

The paper is divided into four sections. The first section outlines the theoretical and methodological framework for the paper. It explains in particular the relevance of asking questions about the legal consciousness of Aboriginal voters: How do individual Aboriginal voters view the legality of the rights mobilization involved in voting? What sort of cultural meanings are bound up in voting? Does this vary according to what the vote is for? What sort of identity must be assumed in order to mobilize voting rights? The second section provides a brief history of First Nations voting rights in Canada. This history is the key to situating the legal consciousness of First Nations voters. The third section provides a map of the legal consciousness – possible symbolic legal meanings of the right to vote – of First Nations voters. The concluding section sketches out some policy implications of this road map for increasing electoral participation in First Nations communities as well as some future directions for research.

It must be emphasized that although I believe that the theoretical and methodological framework advanced in this paper is applicable in research about electoral participation among all of Canada's diverse Aboriginal peoples – First Nations, Inuit, Métis – the specific claims about mapping legal consciousness are applicable only to individual members of First Nations communities. This is because, as I show below, legal consciousness is a reflection of particular histories and people's experiences with the legality of voting rights, and in this regard there has not been uniformity among all Aboriginal peoples. Throughout this paper, First Nations and Indian (status and non-status) are used interchangeably, although the latter is used principally in the context of reporting on provisions of legislation and policy statements.


Footnote 1 Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519; 2002 SCC 68 at paragraph 33.

Footnote 2 Daniel Guérin, "Aboriginal Participation in Canadian Federal Elections: Trends and Implications," Electoral Insight 5, no. 3 (November 2003), http://www.elections.ca/eca/eim/article_search/article.asp?id=22&lang=e&frmPagesize=&textonly=false. See also Elections Canada: Electoral Law, Policy and Research, "Aboriginal People and the Federal Electoral Process: Participation Trends and Elections Canada's Initiatives (January 2004)", available at http://www.elections.ca/content.asp?section=loi&document=abor&lang=e&textonly=false.

Footnote 3 Alan Cairns, "Aboriginal People's Electoral Participation in the Canadian Community," Electoral Insight, 5, no. 3 (November 2003).

Footnote 4 Elections Canada, Official Voting Results: Fortieth General Election 2008. http://www.elections.ca/scripts/OVR2008/default.html.

Footnote 5 CBC News, "Voter Turnout Drops in Nunavut," October 28, 2008, http://www.cbc.ca/nunavutvotes/story/2008/10/28/voter-turnout.html.

Footnote 6 See for instance Ladner, Kiera L., "The Alienation of Nation: Understanding Aboriginal Electoral Participation," Electoral Insight, 5, no. 3 (November 2003): 21–24; Jennifer Dalton, "Alienation and Nationalism: Is it Possible to Increase First Nation Voter Turnout in Ontario?" Canadian Journal of Native Studies 27, no. 2 (2007): 247–291.