open Secondary menu

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


This paper has sought to view Aboriginal electoral participation through the lens of the legal consciousness of individual Aboriginal voters. Mapping the legal consciousness of First Nations voters offers some promising insight into what the right to vote means for individual voters and hence why they mobilize their rights or not. The outlines of the map offered above suggest the shape of fieldwork in First Nations communities involving detailed interviews with individuals as well group breakout sessions that would validate or refine the three forms of legal consciousness I have identified.

The policy implications of any legal consciousness map are not a simple matter of applying a formula. Clearly, with respect to increasing First Nations electoral participation, Elections Canada and other agencies should be embracing and disseminating the importance of the vision that grounds the legal consciousness of the citizen plus voter. This vision holds that mobilizing voting rights through First Nations electoral participation in federal elections serves to reinforce recognition of the special status of Canada's First Nations peoples. Public policy initiatives by Elections Canada should be focused on engaging with the legal consciousness of First Nations voters.

Before identifying specific policy initiatives, two broad points about legal consciousness which are relevant to public policy should be emphasized. The first is that changes in legal consciousness rarely result from changes in doctrinal law, or in response to statistical evidence. While legal professionals may adjust their beliefs about law in accordance with doctrinal law reform, ordinary people rarely do so with any reliability. Perceptions and personal experience are more often the most significant influences on changes in legal consciousness.Footnote 37 The second point is that most individuals do not operate in their everyday lives with only one form of legal consciousness. Although the three forms of legal consciousness – the enfranchised voter, the citizen plus voter, the disenfranchised voter – are represented as distinct and contradictory, for any individual First Nations voter each form of legal consciousness will have some sort of hold on them, competing at any one time to prevail.

The concrete initiatives to engage with the legal consciousness of First Nations voters are varied and can build on some of the initiatives that Elections Canada has already undertaken. Outreach to First Nations youth is a promising example. There is in fact very little empirical research about legal consciousness among youth (not just Aboriginal youth), which should not be confused with the well established field of research that examines legal and civic knowledge among Canada's youth.

It seems likely, however, that the legal consciousness of First Nations youth can be effected by positive experiences with elections. Although this may require amendments to existing legislation, Elections Canada could for instance establish a special program that offers paid scrutiner-like positions to First Nations youth during federal elections. Elections Canada could do this independently or in cooperation with federal political parties. Likewise, Elections Canada could cooperate with federally funded Aboriginal groups to organize leadership or candidate forums that are explicitly devoted to Aboriginal issues or indeed Aboriginal youth issues and provide means via advanced interactive technology for First Nations youth to participate by moderating and asking questions.

Much of Elections Canada's activities addressing electoral participation will occur outside the election window. Mapping the legal consciousness of First Nations voters also suggests a general direction for all educational programs, not just those targeted at youth, designed to increase electoral participation in First Nations communities. Instead of principally informing people in these communities about their right to vote, it is probably more fruitful to discuss explicitly the history of the evolution of the right to vote among Canada's First Nations. These educational programs should address what voting means to First Nations peoples. By discussing the logic of the Supreme Court's decision in Sauvé v. Canada or Corbiere v. Canada, for example, it is more likely that the legal consciousness of the individual First Nations voter will be engaged.

Footnote 37 An interesting question to ask is whether it is possible for the legal consciousness of the First Nations voter to change at all? I believe that a fruitful parallel may be gained by investigating changes in legal consciousness in First Nations communities with regard to litigation over the past few decades. In Canada, when Aboriginal persons have sought legal change, they have often turned not to the Parliament of Canada but rather to the courts. Aboriginal litigants have in the quarter century achieved some significant court victories, often against the Government of Canada. [For opposing views about how to treat these cases, see R. Kn opf and F. L. Morton, The Charter Revolution and the Court Party (Peterborough: Broadview Press, 2000) and Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Toronto: Irwin Law, 2001).] In the same way that I have sketched a map of the legal consciousness of First Nations voters, it would be possible to sketch a map of the legal consciousness of First Nations litigants with a view to better understanding when and why these litigants mobilize their rights and turn to the courts. I suspect that such a map would reveal significant changes in legal consciousness among litigants.