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

Theoretical and Methodological Framework

The analysis in this paper rests on the claim that the right to vote and rights mobilization have significant legal meanings beyond the mere impact of individual votes on Canadian elections and representation. The validity of this claim is most evident in judicial decisions by Canadian courts. It has for example found explicit expression in the two most significant voting rights cases decided by the Supreme Court of Canada in the past decade.

In the case of Sauvé v. Canada, decided in 2002, the Court was asked in effect about the legal status of prisoners in federal jails. At issue was federal legislation that denied those prisoners serving sentences longer than two years the right to vote in federal elections. The court ruled that the denial of the right to vote for those prisoners violated the legal status afforded them under the Charter of Rights and Freedoms. In her opinion for the majority, Chief Justice McLachlin wrote,

… denying citizens the right to vote runs counter to our constitutional commitment to the inherent worth and dignity of every individual. As the South African Constitutional Court said in August v. Electoral Commission, 1999 (3) SALR 1, at para. 17, "[t]he vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts." The fact that the disenfranchisement law at issue applies to a discrete group of persons should make us more, not less, wary of its potential to violate the principles of equal rights and equal membership embodied in and protected by the Charter... The idea that certain classes of people are not morally fit or morally worthy to vote and to participate in the law-making process is ancient and obsolete. Edward III pronounced that citizens who committed serious crimes suffered "civil death", by which a convicted felon was deemed to forfeit all civil rights. Until recently, large classes of people, prisoners among them, were excluded from the franchise. The assumption that they were not fit or "worthy" of voting – whether by reason of class, race, gender or conduct – played a large role in this exclusion.Footnote 7

The point that Chief Justice McLachlin is making is that the right to vote and its exercise matters for prisoners not because of its instrumental effect on elections – the impact their votes will have on particular electoral outcomes – but rather because the recognition of that right is a reflectionof the status and identity of prisoners. And the symbolic legal meaning of the right to vote is so significant that it provides the court with constitutional grounds for striking down a legislative provision that excludes prisoners in federal jails from the franchise.

Three years earlier, in Corbiere v. Canada, the Supreme Court of Canada addressed a constitutional challenge to the section of the 1985 Indian Act, which extended the right to vote in band council elections only to band members "ordinarily resident" on the reserve. The court unanimously struck down the section of the Indian Act and extended the right to vote in band elections to off-reserve band members. Writing for the majority of the Court, Justices McLachlin and Bastarache together conclude,

… the complete denial to off-reserve members of the right to vote and participate in band governance treats them as less worthy and entitled, not on the merits of their situation, but simply because they live off-reserve… it is clear that the s. 77(1) disenfranchisement is discriminatory. It denies off-reserve band members the right to participate fully in band governance on the arbitrary basis of a personal characteristic. It reaches the cultural identity of off-reserve Aboriginals in a stereotypical way. It presumes that Aboriginals living off-reserve are not interested in maintaining meaningful participation in the band or in preserving their cultural identity, and are therefore less deserving members of the band. The effect is clear, as is the message: off-reserve band members are not as deserving as those band members who live on reserves. This… results in the denial of substantive equality… The effect of the legislation is to force band members to choose between living on the reserve and exercising their political rights, or living off-reserve and renouncing the exercise of their political rights. The political rights in question are related to the race of the individuals affected, and to their cultural identity. As mentioned earlier, the differential treatment resulting from the legislation is discriminatory because it implies that off-reserve band members are lesser members of their bands or persons who have chosen to be assimilated by the mainstream society.Footnote 8

Like in Sauvé, the claim that the right to vote is infused with symbolic legal meaning is pivotal to the decision of the Supreme Court to strike down federal legislation in Corbiere. The obvious similarity and tone between the two judgements neatly illustrates the extent to which, for the justices of the Supreme Court of Canada, voting rights are a reflection of legal status.

In the same way that voting is steeped with symbolic legal meaning for our judges, it makes sense that right to vote is steeped with symbolic legal meaning for the individual voter. In both Sauvé and Corbiere, the Supreme Court was asked to strike down legislation on the grounds that voting was more than just an expression of a preference for a particular candidate in an election. However, suppose we ask a similar question from a different perspective: What is the meaning of voting for the individual Aboriginal voter? My point is that understanding the answer to this question is pivotal to understanding Aboriginal electoral participation.

The question is fundamentally about how an individual understands the right to vote as a legal status and an expression of legality. In recent socio-legal scholarship, the study of how ordinary persons as opposed to legal professionals such as judges and lawyers understand and make sense of law and legality has come to be referred to as legal consciousness research.Footnote 9

Legal consciousness, in this sense of the term, refers to an individual's knowledge or awareness of the law and its potential for resolving disputes and affecting social change.Footnote 10 In other words, the significance of legal consciousness is that it provides people with interpretive frameworks to guide their interactions with law and inform their beliefs about law's promise or danger. Any answer to the question I posed above, 'What is the meaning of voting for the individual Aboriginal voter?,' is a claim about the legal consciousness of that voter.

Legal consciousness is more than a simple reflection of attitudes or beliefs about legal rights. It is better thought of as a form of cultural practice where beliefs and attitudes about legal rights affect practices and what people do, which in turn shape beliefs and attitudes. "In this theoretical framing of legal consciousness as participation in the construction of legality," explain Ewick and Silbey, "consciousness is not an exclusively ideational, abstract, or decontextualized set of attitudes toward and about the law. Consciousness is not merely a state of mind. Legal consciousness is produced and revealed in what people do as well as what they say."Footnote 11 Legal consciousness is, however, never entirely the construction of a single individual or simply a subjective viewpoint.Footnote 12 It is, in the words of Ewick and Silbey, "always a collective construction that simultaneously expresses, uses, and creates publicly exchanged understandings."Footnote 13 Legal consciousness is not a function of doctrinal law and hence changes in doctrinal law do not necessarily lead to parallel changes in legal consciousness.Footnote 14 For example, changes to the Indian Act do not necessarily lead to changes in legal consciousness among First Nations peoples.

Legal consciousness research is designed to identify its shapes and patterns. This assumes that although the legal consciousness of an individual is constantly changing, there is something instructive about trying to identify the variety of forms it can take. These forms or varieties of legal consciousness are by necessity only ideal types or approximations. The underlying idea that how a person deals in a particular interaction with political and legal institutions and the law generally – a police stop, a letter from the bank's lawyer threatening to foreclose on a mortgage in default, a complaint about discrimination against a landlord – is largely a function of the broad position or viewpoint he or she has on law and legality. And moreover this viewpoint is a reflection of law's presence in and relevance to a person's everyday life. Elsewhere, I have introduced the idea of differentiated legal consciousness.Footnote 15 Instead of assuming a uniform legal consciousness when crises arise in a particular jurisdiction, my approach has been to treat legal consciousness as varied among groups of individuals differently situated in the crisis. The promise of this differentiated approach to legal consciousness is that it enables me to both draw contrasts between perspectives of differently situated groups within the same jurisdiction – which reinforces the fact that some groups such as Canada's Aboriginal peoples are not homogeneous – and to note commonalities between similarly situated groups in other jurisdictions.

Another important strand in legal consciousness research is exploring the effects of legality on identity. The underlying idea is that often mobilizing legal rights demands taking on a particular identity. Perhaps this is clearest in the case of disability rights law.Footnote 16 The past three decades have been characterized by a dramatic expansion by legislatures and the courts in the field of rights for persons with disabilities. Yet, the pattern of mobilization of these rights is complex. In particular, in order for individuals to stand on these rights, they need to identify as persons with disabilities – taking on this identity is something that some people struggle with and indeed resist, which affects their capacity to mobilize the rights enacted by disability rights law. A recent study of disability rights mobilization noted, "… not only does identity determine how and when rights become active, but that indeed rights can also shape identity."Footnote 17

I have stressed above that an answer to the question, 'What is the meaning of voting for the individual Aboriginal voter?' is a claim about the legal consciousness of that voter. How this question is answered can provide great insight into voting rights mobilization by Aboriginal people, for rights mobilization is a function of what those rights mean to those individuals who hold them. Instead of seeing rights as instruments or tools, rights are viewed from the perspective of what they actually do and how they matter, or do not matter to their intended beneficiaries. Voting in Canada is a legal right; when individuals choose to vote or not, they are actively mobilizing legal rights. In this sense, Aboriginal electoral participation is fundamentally an issue of rights mobilization. For this reason an important dimension of electoral participation is legal consciousness. How do individual Aboriginal voters view the legality of the rights mobilization involved in voting? What 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 rest of this paper will focus on the legal consciousness of First Nations voters and its significance for better understanding First Nations electoral participation. By situating the discussion within the context of the history of First Nations voting rights, I will identify significant landmarks in a map of the legal consciousness of First Nations voters.

Footnote 7 Sauvé v. Canada, at paragraphs 35, 43.

Footnote 8 Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 at paragraphs 17, 18, 19.

Footnote 9 David Engel and Frank Munger, Rights of Inclusion: Law and Identity in the Life Stories of Americans With Disabilities (Chicago: University of Chicago Press, 2003); Patricia Ewick and Susan S. Silbey, The Common Place of Law: Stories from Everyday Life (Chicago: University of Chicago Press, 1998); Laura Beth Nielsen, "Situating legal consciousness: Experiences and attitudes of ordinary citizens about law and street harassment,"Law & Society Review, 34, no. 4 (2000): 1055–1090; Martha M. Umphrey, "The Dialogics of Legal meaning: Spectacular Trials, the Unwritten Law, and Narratives of Criminal Responsibility," Law & Society Review 33, no. 2 (1999): 393–423.

Footnote 10 David Trubek, "Where the Action Is: Critical Legal Studies and Empiricism," Stanford Law Review, 36 (1984): 575–622. Sally Engle Merry, Getting Justice and Getting Even: Legal Consciousness Among Working-Class Americans. Chicago Series in Law and Society. (Chicago: University of Chicago Press, 1990). For the idea there are competing conceptions of legal consciousness, see Patricia Ewick and Susan S. Silbey, "Conformity, Contestation, and Resistance: An Account of Legal Consciousness," New England Law Review 26 (1992): 731–742.

Footnote 11 Ewick and Silbey, The Common Place of Law: Stories from Everyday Life, p. 46.

Footnote 12 Although almost all existing research on varieties of legal consciousness has focused on individuals, some have focused on organizations: Erik Larson, "Institutionalizing Legal Consciousness: Regulation and the Embedding of Market Participants in the Securities Industry in Ghana and Fiji," Law & Society Review 38 (2004): 711–736; Lesley A. Jacobs, "Differentiated Corporate Legal Consciousness in International Human Rights Disputes: Security and Transnational Oil Companies in Sudan," APDR Research Notes 1, no. 3 (October 2008): 37–49,

Footnote 13 Ewick and Silbey, op. cit., p. 46.

Footnote 14 Lesley A. Jacobs, "Legal Consciousness and the Promise of Law & Society," The Canadian Journal of Law and Society 18, no. 1 (2003): 61–66.

Footnote 15 Lesley A. Jacobs, "Rights and Quarantine During the SARS Global Health Crisis: Differentiated Legal Consciousness in Hong Kong, Shanghai, and Toronto," Law & Society Review 41, no. 3 (September 2007): 511–553.

Footnote 16 David Engel and Frank Munger, "Rights, Remembrance, and Reconciliation of Difference," Law & Society Review 30 (1996): 7–54; Engel and Munger, Rights of Inclusion: Law and Identity in the Life Stories of Americans with Disabilities, ch. 3.

Footnote 17 Engel and Munger, Rights of Inclusion: Law and Identity in the Life Stories of Americans with Disabilities, p. 242.