SPITZER – Tu Nedhe, Weledeh, & the trouble with boundaries in the NWT

Aaron Spitzer explores competing visions for representation in the NWT Legislative Assembly. Should boundaries be distributed evenly by population or reflect distinct communities of interest? Is ensuring voter parity the right decision for NWT?

As in most democracies where representation is apportioned among geographically-based ridings, Canada’s Northwest Territories periodically engages in “reapportionment,” whereby the legislative assembly adds, subtracts or adjusts the boundaries of ridings due to demographic changes. Unlike many such jurisdictions, however, post-division reapportionments in the NWT have repeatedly sailed into confused constitutional seas, resulting in legal challenges or threats thereof. The 2013-14 reapportionment exercise is proving no different.

The latest litigious mutterings have amplified since the assembly concluded the reapportionment late last month by voting to merge the Tu Nedhe riding with the settlements of Dettah and N’dilo. Prior to that decision, Tu Nedhe, comprising the communities of Lutselk’e and Fort Resolution, was the NWT’s least populous and thus most overrepresented riding; Dettah and N’dilo were part of Yellowknife-based Weledeh, the most populous and thus most underrepresented riding.1 Insofar as the new, merged riding will encompass all four Akaitcho First Nation communities, and will help rectify glaring population disparities between NWT ridings, the assembly’s decision might seem on its face to be one that reasonable people could support.

Or not.

As with past reapportionments, Yellowknifers, with nearly half of the NWT’s population but just seven of its 19 ridings, say the assembly’s move doesn’t go far enough, and are threatening to sue for more ridings and increased “voter parity.” Tu Nedhe residents, meanwhile, who are the NWT’s only Chipewyan speakers, say the move goes too far, and are threatening to sue to retain their culturally distinct voice in the assembly, which they maintain is essential to their constitutionally guaranteed right of “effective representation.” And meanwhile, many other NWT residents are scratching their heads, wondering once again what all the fuss is about.

It’s about a lot. How representation is divvied up has been the peskiest issue in the NWT’s brief constitutional evolution. It has plagued the territory since at least the mid-1970s, prompting a succession of fruitless constitutional summits, several yellowing reports by learned commissions of inquiry, various controversial proposals for radically un-Westminsterian governance arrangements, plus a series of riding-reapportionment kerfuffles of which the current fracas over Tu Nedhe is merely the latest.

The root of the problem is this: Unlike any other Canadian province or territory, or for that matter any American state, the NWT is composed of two equal-sized, distinct peoples – Aboriginals and non-Aboriginals.2 Very generally speaking, each is worried about being democratically dominated by the other. Moreover, each has a very good legal and philosophical case for greater representation.

For non-Aboriginals, mostly concentrated in Yellowknife, that case is based on “individual equality.” This is, of course, a core democratic value, holding that every citizen deserves relatively equal “weight” in elected assemblies. This value finds expression in such common reapportionment principles as “one person, one vote,” “voter parity” and “representation by population,” a.k.a “rep by pop.” Applied to the Northwest Territories, it holds that no single riding should be substantially more populous than any other, and thus that Yellowknife, with close to half of the NWT’s population, should have close to half the seats in the assembly.

For many Aboriginals, however, “individual equality” is a Trojan horse. They know that by demanding voter parity, non-Aboriginals could quickly outnumber and outvote them in their homeland: a method of colonization that, by being wholesomely democratic and possibly even unintentional, is made all the more insidious. Hence, for 40 years, NWT aboriginals have called for overrepresentation – even guaranteed majority representation – in the legislative assembly.

If this seems anti-democratic, think about it this way: How would Canadians feel if we were swamped by 35 million legal immigrants who didn’t speak English or French, didn’t share our culture, and likely didn’t have a long-term stake in our future – but who, by asserting their right to vote, seized the democratic reins of Parliament? We wouldn’t stand for it, of course.

This is why all liberal democracies, including Canada, have strict controls on immigration and establish terms of residency for voting. While we may embrace mobility and voting rights for all citizens within our democracy, we control the mobility and voting rights of non-citizens from outside our democracy – especially those who, through dint of their greater numbers, could easily move in and colonize us.

The analogy is obvious: NWT Aboriginals, composing one or more cultural “nations” quite distinct from the Canadian mainstream, want similar protections. They do not want non-Aboriginals, already so populous in Yellowknife, to assert “individual voting rights” as a tool to take democratic control of the NWT. (It doesn’t help Yellowknife’s case that its non-Aboriginal residents are highly transient and display little long-term allegiance to the territory, nor that Yellowknife has boomed at least partially as a result of being made the capital of the NWT – a move that Aboriginals might have expected would “decolonize,” rather then “recolonize,” their homeland.)3

The Northwest Territories then, is faced with a paradox. On the one hand are the fundamental liberal rights to live where one wants and to vote where one lives. On the other mutually exclusive hand are the sacrosanct, if less well-defined, group-based rights not to be colonized by, and surrender democratic self-determination to, settlers barging into one’s territory.

The NWT is not alone in facing this paradox. Various democratic jurisdictions wrestle with it – from Fiji, where indigenes risk being overwhelmed by Indo-Fijians, to the Aland Islands of Finland, where the Swedish-speaking “indigenous” population fears being overwhelmed by newcomers from the Finnish mainland, to a variety of post-Soviet states reeling from Moscow’s old policy of “Russification.” (Ukraine anyone?)

But unlike in at least some of the above-named places, which protect indigenous majority representation, the hands of NWT Aboriginals have been tied. They’re frustrated by court rulings that constrain their overrepresentation, especially the 1999 “Friends of Democracy” ruling that increased Yellowknife’s share of assembly seats from four to seven. They feel, fundamentally, that the individual rights of “settlers” should not be perversely utilized to take over their Aboriginal homeland.

Is there a chance they’re right? While the NWT is a distinct jurisdiction in Canada, it could be argued that the “Friends” ruling largely imported mainstream legal principles and plopped them into an ill-fitting context. It should be recalled that the clumsy application of Charter principles has caused no little harm to relations between Canada’s internal “nations.” When Quebec’s Bill 101, which prohibited commercial signage from appearing in English, was ruled unconstitutional, it sparked the mid-’90s sovereignty crisis. In this instance, the Charter, which was intended at least in part to unite Canadians under a common set of values, instead dangerously divided us. Arguably, the “Friends” ruling did the same to the NWT, scuttling hopes for a constitutional accord, further fuelling the push for Aboriginal self-government, and eroding the democratic legitimacy of the assembly.

To avoid such constitutional clashes, other jurisdictions have acted with more nuance. In the Yukon, the culturally unique village of Old Crow is guaranteed an assembly seat despite its minuscule population. It is the same with Sanikiluaq in Nunavut and the Magdalen Islands in Quebec. And in nearly every province, remote Aboriginal-majority ridings are permitted dramatic overrepresentation due to what the law deems “exceptional circumstances.” Indeed, the remote Aboriginal ridings of the NWT are among the few where the “exceptional circumstances” clause has, rather inexplicably, not been applied.

Thus, there’s good reason to think that Tu Nedhe has an excellent legal case. There’s also real question whether “Friends of Democracy” was properly decided. Those Yellowknifers calling for greater “voter parity” should be wary. The results of the next lawsuit could set a very different precedent.

Photo credit: “NWT Legislature” by Derek and Beth Hatchard (creative commons).

1. Editor’s note — According to the Northwest Territories Electoral Boundary Commissions Interim Report (2012-2013), Weledeh was projected to have a population of 3,254 people, approximately 47% more than the territorial mean of 2,282 people per district. Tu Nedhe, by contrast, was projected to be 65% below the mean, with a population of 797 people.

2. ED — According to Statistics Canada, in 2011, the non-Aboriginal population of the Northwest Territories was 20,302, while the Aboriginal population was 21,160.

3. ED — Until 1967, the capital of the Northwest Territories was Ottawa. Following recommendations from the Advisory Commission on the Development of Government in the Northwest Territories the capital was moved to Yellowknife in September 1967.

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