Recognition or imposition? Federalism, national minorities, and the Supreme Court of Canada

ABSTRACT. This paper makes two main arguments. First, federalism in Canada, properly conceived, is a system which evolves as a result of struggles over the norms of mutual recognition between territorially based groups. Second, if federalism is to work as a way of accommodating national minorities, the role of the judiciary in adjudicating this relationship must be taken into account, because it plays an integral role in the continuing contestation of the arrangement.

I begin with the ‘problem’ of national minorities in the nation-state system and why federalism is espoused as a solution for alleviating tensions, focusing on Canada. I then turn to review the relevant jurisprudence of the Supreme Court of Canada (SCC) in adjudicating the federal arrangement. Finally, considering this jurisprudence, I reflect on why it is important to account for the role of the Court when promoting federalism to accommodate national minorities. I go on to argue that a dialogical approach to federalism, as opposed to a monological one, is best suited to do this.