Confronting 'Kymlicka's dilemma': settler voting rights, indigenous representation and the 1998-99 electoral reapportionment in Canada's Northwest Territories

Abstract

"Settler colonialism" presents a vexing challenge to voting rights theory and praxis in liberal-democratic states. I call this challenge "Kymlicka's dilemma," after Will Kymlicka, the political theorist who has led contemporary discourse on "minority nation" rights. As Kymlicka observed, members of a state's dominant cultural nation, or staatsvolk, may, by exercising universal mobility rights, numerically "swamp," and then, by using universal voting rights, democratically dominate, an Indigenous minority nation in its homeland. To prevent this, an Indigenous minority nation may seek to exercise group-based voting protections, such as guaranteed representation. Where "Kymlicka's dilemma" arises - i.e., where minority group-differentiated voting protections challenge the voting powers of individual staatsvolk and vice versa - a constitutional conflict seems certain. In Canada's Northwest Territories, from at least the 1970s until the separation of Nunavut in 1999, the specter of "Kymlicka's dilemma" (mis)shaped the constitutional evolution of the territorial government. There, in what was long Canada's last Indigenous-majority jurisdiction, decades of Indigenous political resistance to settler control hinged on the permissibility of Indigenous overrepresentation in the territorial legislature. In the 1990s, three developments portended changes to Indigenous overrepresentation in that legislature: Charter of Rights-inspired limits on electoral-district malapportionment, constitutional recognition of Indigenous group-based protections, and the amplified danger of settler "swamping" that would result from Nunavut's separation. As if in a natural experiment, these developments created conditions for a potentially volatile constitutional conflict. This thesis analyzes the results of that experiment. It shows that a constitutional conflict did ensue, catalyzed by the territorial electoral reapportionment of 1998-99. This conflict involved a yearlong political clash over Indigenous versus individual rights. This thesis further shows that a controversial court ruling, and equally controversial political decisions, resolved this conflict, deciding "Kymlicka's dilemma" by rejecting Indigenous group-differentiated voting protections in the territorial legislature.