Chapter 3: The Emerging Equality Paradigm
3.1 Are They Really Opposing ―Paradigms‖?
This paper is obviously not using the term ―paradigm‖ in its classical sense,363
but in the sense in which it was famously used by Thomas Kuhn in relation to the natural sciences.364 While it may not be prudent to attempt a holus-bolus transfer of Kuhn‘s notion of a paradigm to Aboriginal law,365 some reflection on Kuhn‘s paradigm may indicate whether apparent changes
363 The Concise Oxford Dictionary, 6th ed. defines ―paradigm‖ as ―example or pattern, esp. of inflection of noun,
verb, etc….‖
364 Thomas Kuhn, The Structure of Scientific Revolutions, 2nd ed. (Chicago: University of Chicago Press, 1970).
The following discussion also draws on the summary of Kuhn‘s analysis and a consideration of its usefulness outside of the natural sciences in James Iain Gow and Caroline Dufour, ―Is the New Public Management a Paradigm? Does it Matter?‖ (2000) 66 International Review of Administrative Sciences 573.
365 Kuhn doubted that the social sciences had matured enough to have acquired paradigms (ibid. at 15). He also
expected that the process of accepting a paradigm would proceed differently in fields such as medicine, technology and law, ―of which the principal raison d’être is an external social need‖ (Kuhn, ibid. at 19). At the same time, Kuhn said that it should not be surprising that his main theses should be considered applicable to fields other than the sciences since he borrowed them from other fields such as literature, music, politics and the arts in which ―[p]eriodization in terms of revolutionary breaks in style, taste and institutional structure have been among their standard tools‖ (ibid. at 208).
90
in Aboriginal law amount to something as fundamental as a paradigm shift, and some potential parallels in the process of change may be worth considering.
According to Kuhn, a paradigm governs, ―in the first instance, not a subject matter but rather a group of practitioners‖.366
It consists of ―the entire constellation of beliefs, values and techniques shared by members of a given community‖.367
At the same time, it also refers to ―one sort of element in that constellation, the concrete puzzle-solutions which, employed as models or examples, can replace explicit rules as a basis for the solution of the remaining puzzles of normal science‖ or ―exemplars‖.368
Learning these exemplars allows students to discover a way to see a new problem in the discipline as analogous to one seen before, ―to see a variety of situations as like each other‖ and to develop ―a time-tested and group-licensed way of seeing‖.369
Kuhn also described paradigms as scientific achievements that ―some particular scientific community acknowledged for a time as supplying the foundation for its further practice‖ and that were sufficiently open-ended to leave many problems to resolve.370 To the extent that a paradigm is grounded in a theory, the theory must ―seem better than its competitors‖.371 An accepted paradigm allows a scientist to take first principles, and an ―accepted model or pattern‖ for
granted rather than having to construct them. It operates ―like an accepted judicial decision in the common law…an object for further articulation and specification under new or stringent
conditions.‖372 366 Ibid. at 180. 367 Ibid. at 175. 368 Ibid. at 187. 369 Ibid. at 189. 370 Ibid. at 10. 371 Ibid. at 17. 372 Ibid. at 19-20 and 23.
91
A paradigm continues to govern a discipline until scientists perceive that there is a gap between theory and nature in the form of a significant ―anomaly‖, such as an anomaly that ―will clearly call into question explicit and fundamental generalizations of the paradigm.‖ The
anomaly begins to receive attention by some of the eminent scholars of the discipline, though only rarely will scientists explicitly acknowledge the breakdown of the existing paradigm. Sometimes a stubborn anomaly will ultimately be solved within the scope of an existing paradigm, sometimes the anomaly is set aside for future consideration, but sometimes a paradigm in crisis will be replaced with a new paradigm. A new paradigm will be ―a
reconstruction of the field from new fundamentals, a reconstruction that changes some of the field‘s most elementary generalizations as well as many of its paradigm methods and
applications….When the transition is complete, the profession will have changed its view of the field, its methods and its goals.‖373
If a new theory resolves a gap between the old theory and nature, then the new theory must make predictions that are different from the old. This means that the two must be logically incompatible – the new must replace the old. 374 A controversial aspect of Kuhn‘s view of paradigms and ―scientific revolutions‖ was his claim that a new paradigm is not only
incompatible but also incommensurable with the previous one. Thus, Kuhn ascribed ―normative functions‖ to paradigms, such that the choice between competing paradigms could not be resolved by the objective criteria of normal science because each paradigm will satisfy its own criteria and will fail the criteria of its opponent. Different paradigms will generally have different
373 Ibid. at 81-85. 374 Ibid. at 97.
92
criteria for the legitimacy of problems and proposed solutions, and this may be their most distinguishing feature:
…[S]ince no two paradigms leave all the same problems unsolved, paradigm debates always involve the question: Which problems are more significant to have solved? Like the issue of competing standards, that question of values can be answered only in terms of criteria that lie outside of normal science altogether, and it is that recourse to external criteria that most obviously makes paradigms revolutionary.375
Although rudimentary, at least at first blush this sketch of Kuhn‘s description of paradigms suggests that the contest between grounding Aboriginal law on rights flowing from occupancy before Crown sovereignty and viewing it as a means of reconciling competing sovereignties is in many respects analogous to a contest between paradigms in the natural
sciences. Defining Aboriginal rights as certain Aboriginal laws, customs and property rights that arise out of occupancy prior to Crown sovereignty376 is incommensurate with a paradigm for Aboriginal law that recognizes the sovereignty of Aboriginal nations and does not assume the legitimacy of Crown sovereignty.
A paradigm grounded in the principle of the equality of peoples will indeed force a reconstruction of Aboriginal law ―that will change some of the field‘s most elementary generalizations‖ – it will cause many existing doctrines to be re-examined or discarded. In particular, the doctrine of Aboriginal title relies on the assumption that the Crown holds the ultimate title, and that prior occupation forms a sui generis burden on that title in favour of the Aboriginal occupants. In the past, the Crown‘s hold on the ultimate title relied on its assertions of sovereignty being accepted by courts without question. If these assertions must now find their validity elsewhere, then their mere utterance will not establish in the Crown a legitimate title that
375 Ibid. at 103 and 109-110.
93
is automatically superior to any claim Aboriginal peoples may make to the land. Therefore, it is no longer appropriate to class Aboriginal claims to land as ―burdens‖ because they are
necessarily inferior to the Crown‘s superior interest. Under a new paradigm that relies on treaties to reconcile sovereignty claims, the respective rights and jurisdiction of the Crown and
Aboriginal peoples will be determined by the treaty, not by the doctrine of Aboriginal title. Under the rights paradigm, Crown sovereignty claims were not open to question, which limited Aboriginal peoples to rights that arose out of prior occupation. Once the continuing sovereignty of Aboriginal peoples is recognized it becomes necessary to secure the consent of Aboriginal peoples, in treaties, to just terms for sharing sovereignty in a federal Canada. True consent will not be compatible with a priori doctrinal limitations on Aboriginal title or on the scope of Aboriginal rights in general. Indeed, the focus of the discussion under the equality paradigm will naturally shift from defining the ―rights‖ of Aboriginal peoples versus the Crown‘s exclusive sovereignty to ways sovereignty, and hence jurisdiction, should be shared between the Crown and Aboriginal nations. This, in turn, will have important implications for the role of the courts in defining the relationship between Aboriginal peoples and Canadians as a whole.