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Aboriginal Rights: Gauthier's Arguments for Despoilation

Published online by Cambridge University Press:  05 May 2010

Nicholas Griffin
Nicholas Griffin
Affiliation:
McMaster University
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Extract

In a recent review David Gauthier presents two arguments designed to support the eminently comforting belief that, while recognizing aboriginal rights in Canada will entail some costs for the dominant European community, these costs will be of a comparatively modest nature, and certainly far less than the sort of compensation currently claimed by the indigenous peoples themselves. Unfortunately for the Europeans, but fortunately for the indigenes, there seems to be no moral justification whatsoever for the arguments he adduces. In fact, the only way his arguments can be made to work is by assuming that radically different sets of moral principles operate for different peoples. As usually happens in such cases, the Europeans get better protection from the moral principles designed for them, than the aborigines do from the principles designed (as it happens, by the Europeans) for them.

Type
Articles
Information
Dialogue: Canadian Philosophical Review / Revue canadienne de philosophie , Volume 20 , Issue 4 , December 1981 , pp. 690 - 696
Copyright
Copyright © Canadian Philosophical Association 1981

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References

Notes

1 Gauthier, David, Review of Contemporary Issues in Political Philosophy, edited by W.R. Shea and J. King-Farlow, Dialogue, XVIII (1979), pp. 432–440.CrossRefGoogle Scholar

2 Compare Hobbes: “For the savage people in many places of America … live at this day in that brutish manner.” (Leviathan, Ch. 13).

3 This style of justification for outrageously unfair economic policies is not new. It can be found, together with Gauthier's insistence on the primacy of contract in the writings of such arch-conservative opponents of land reform as the Duke of Argyll (cf. his The Unseen Foundation of Society (London: Murray, 1893)).Google Scholar

4 Note, however, Gauthier's propagandistic shift from his principle, which ensures only that A becomes materially no worse off, to claims (made almost consistently on p. 435) that A becomes better off as a result of being expropriated.

5 It will not do to claim that the land cession treaties constitute such agreements. In the first place such treaties cover only about one-third of Canada. Moreover, their legal status is highly doubtful. At best they have only the status of ordinary contracts and thus are subject to unilateral abrogation by Parliament. Cf. Cardinal, H., The Unjust Society (Edmonton: Hurtig, 1969)Google Scholar; and Cumming, P.A., Canada: Native Land Rights and Northern Development (Copenhagen: International Work Group for Indigenous Affairs, 1977)Google Scholar for legal aspects. For a sample case see Re Paulette et al. and Registrar of Titles (1974), 42 D.L.R. (3d) 8; (1973) 6 W.W.R. 97, 115 (N.W.T.S.C).

6 Locke, Second Treatise of Government, §33.

7 It does, however, extend Gauthier's principle (in the new simplified form) to apply to the initial appropriation of land as well as to its subsequent expropriation by the colonists.

8 Legally their appropriation is legitimate. Under Canadian law a customary system of tenure gives full property rights. Cf. Cumming, op. cit., pp. 23–27.