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By Kathrin Dost

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Third, it may be a purely legal and territorial entity, created not by prudential or moral agreement but by the contingencies of history. To claim the authority of a liberal conception of justice for such communities, bound together neither by shared values nor by interest, one would have to posit principles that are morally binding· for all peoples and states and that they are captured best by such a conception. The foundations of liberal justice would thus have to be universally valid moral principles.

The right of the Quebecois to preserve and promote their culture, as affirmed in the distinct society clause, is yet another case: it is exercised by the province of Quebec, whose citizens are predominantly francophones but also include many non-francophones. 15 These are all special rights, since they are accorded on the basis of cultural membership. But some are accorded to individuals, some to the community, some to a province or territory, and some where numbers warrant. The case of hunting rights shows that what matters is not whether the right is 'communal' (as opposed to individual) but whether it is 'special' (as opposed to universal).

However, this guarantee could be seen as violating the equality rights of the Charter, as could restrictions on the mobility rights of non-Aboriginals into Indian reservations. 10 For example, traditional Aboriginal methods of consensual political decision making could be seen as denying the democratic rights guaranteed in sections 3-5 of the Charter. These traditional decision-making procedures do not violate the underlying democratic principle of the Charter - namely, that legitimate authority requires the consent of the governed, subject to periodic review.

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