Module 10: Indigeneity in Canada

As Alfred and Corntassel (2005) note,

“there are approximately 350 million Indigenous peoples situated in some 70 countries around the world” (p.599).

The high number of Indigenous people is not supported by a specific definition; rather the United Nations has developed a set of principles to define Indigeneity.  These principles include self-identification, community acceptance, historical continuity with pre-colonial and/or pre-settler societies, continuing link to territories, distinct social, economic or political systems, distinct language, culture and beliefs, form non-dominant groups of society, and resolve to maintain their distinctive peoples and communities (United Nations, 2016).  Central to the United Nations approach is the process of self-identification.  While the Canadian state disputes the self-identification process in official Canadian Indigenous policy, Indigenous identity in the Canadian census is based solely on self-identification.  Based on these principles, Belanger (2014) notes that there are approximately 60 Indigenous nations in Canada.  The 2016 census recognized that Canada has an Indigenous population of 1,673,785 (Statistics Canada, 2017).

Figure 10-1: Source: http://www.statcan.gc.ca/pub/11-627-m/11-627-m2017027-eng.htm Permission: Courtesy of the Statistics Canada Open License Agreement, reproduced and distributed on an “as is” basis.

In the image above, you may have noticed that Statistics Canada uses the term Aboriginal not Indigenous.  The two terms Aboriginal and Indigenous are separate and overlapping terms.  On one hand, Aboriginal is a specific legal term, defined in Section 35 of the 1982 Constitution, used in the Canadian context to refer to one of three groups, Indian, Inuit, or Métis.  Since Aboriginal is defined in the Canadian constitution and Canada controls membership for each of the three constitutionally recognized Aboriginal peoples, Indian, Inuit, and Métis, Aboriginal identity is controlled by the Canadian state.  On the other hand, Indigenous is an international term based principles identified above.  Since the term Indigenous was designed to empower Indigenous citizenship law and Aboriginal identity is controlled by the Canadian state, there is a growing trend for people to identify as Indigenous instead of Aboriginal.

The distinction between Indigenous and Aboriginal is important for Indigenous people because Indigenous people have been in North America since time immemorial.  For Indigenous people, time immemorial is the moment of creation.  While there are multiple narratives, the one consistent theme is that these stories place Indigenous people on this land since creation.  These creation stories and continuous occupation of land are the source of Indigenous authority and legitimacy. As we will see, this comes into conflict with the authority and legitimacy of the Canadian state. As we move forward through this module, remember to keep in mind the concepts of power, authority, and legitimacy we covered in Module 1. Power is the ability to achieve an objective by influencing the behavior of others, particularly to get them to do what they would not have otherwise done, whether through coercion, persuasion, or inducement. Authority is the right or justification used to legitimize the exercise of power, and legitimacy is a measure of whether people accept the validity of that authority, and therefore the exercise of power.

Defining Indigeneity highlights the crux of the relationship between Indigenous people and settler colonial societies, like Canada.  Settler colonial societies have consistently attempted to eliminate Indigenous people and their structures of governance through various means in order to validate the power, authority, and legitimacy of settler-colonial states.  This process has happened to Indigenous people in Canada through a combination of law and policy.

You may have noticed the term settler colonialism.  Being able to distinguish settler colonialism from colonialism is critical to understand Indigeneity in Canada.  Settler colonialism is a form of colonization that focuses specifically on permanent settlement (Nichols 2014). Settler colonialism is also distinguished by the elimination of Indigenous peoples and repression of Indigenous governance structures to facilitate that permanent settlement (Wolfe 2006).

‘Canada’s Call to Women’ c1905

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— ᓰᓰᑫᐧᓯᐢ (@PaulSeesequasis) December 7, 2017

This additional caveat to colonization is important because if we limit our understanding of colonization to the literal definition of colonization, we will note that Canada achieved decolonization when it first separated from Britain and established its constitution in 1867.  However, for Indigenous people independence from Britain did not result in decolonization. While Canada was no longer a direct colony of Britain, it remained a settler-colonial society. For Indigenous people, power, authority, legitimacy, and underlying policy objectives were simply transferred from one colonizer to the next. Thus, to understand Canadian power, authority, and legitimacy, we need to understand the sources of British power, authority, and legitimacy. It is also important to remember what we learned in Module 3 regarding the rule of law. Let us first consider the Royal Proclamation of 1763.

Although there is evidence of early Norse settlements along the coast of Newfoundland as early as the eleventh century (1000 CE), European settlers did not establish themselves meaningfully in North America until the seventeenth century (1600s CE). During the Seven Years War (1756–1763) British and French colonies were sites of conflict between the two countries. The British won a series of military victories and were able to conquer much of the French colonies in North America, including what is now Quebec. When the war ended in 1763, the British Crown’s Royal Proclamation of 1763 created the province of Quebec, and defined Indigenous rights on that land. The crucial part of this proclamation was that it forbid settlers to claim any land from Indigenous peoples unless the Crown first purchased it. This was a formal, legal recognition that Indigenous peoples in Canada had title to their land, and would continue to have unless formally ceded by treaty. By extension, the Crown recognized the legitimacy and authority of Indigenous governance structures.

However, in the following years the behaviour of the Crown in its relations with Indigenous nations did not live up to the potential in the Royal Proclamation. In many cases, the Crown relied on the power of Indigenous nations for assistance and exploration, but did not treat them as equal nations. This one sided relationship was particularly exemplified in the War of 1812, where the military power of Indigenous nations was crucial in repelling American military attacks, yet Indigenous nations were not included in the following peace settlement of 1814. Unfortunately, not engaging with Indigenous nations when making decisions that involved them would become standard policy as the power of the colonies grew in relation to the power of Indigenous nations.

Painting depicting Battle of Queenston Heights from War of 1812. John David Kelly (1862 – 1958) published 1896, Public domain, via Wikimedia Commons.

With more settlers arriving, reserves began to be used by the Crown as a way to separate Indigenous peoples from settlers. Indigenous nations did not agree to be confined these areas nor surrender their territories to continuing expansion of the fledgling settler-colonial state. In order to facilitate the continued expansion of the colonies, the Crown developed a policy of enfranchisement where Indigenous people would surrender their identities as members of Indigenous nations and the legal rights that accompanied them in order to receive Canadian citizenship and be assimilated into Canadian society. These policies, like earlier behaviour of not consulting or including Indigenous nations in decision making, were underwritten by white supremacy, which supported the mistaken belief that Indigenous people were racially inferior to white settlers. The 1857 enfranchisement law called the Gradual Civilization Act reflected this in its name; that Indigenous nations and people were uncivilized, and could only become so if they surrendered their Indigenous identity and assimilated into settler society.

The policy of assimilation that began to develop with the enfranchisement act of 1857 was adopted as formal policy during confederation. Although the first Canadian constitution does not say a lot about Indigenous people, but it does make two significant statements regarding Indigenous people important for this policy. First, Section 91(24) of the 1867 constitution recognizes that “Indians, and Lands reserved for the Indians” are the responsibility of the Federal government. Perhaps that seems like an insignificant and reasonable transfer of power. Recall in module 2, you read about the Royal Proclamation of 1763. In the Royal Proclamation, the British Crown recognized that Indigenous nations had rights to their land, and thereby the legitimacy and authority of Indigenous governance on that land. Yet this section of the 1867 constitution revokes this status as nations. In place of nationhood, Indigenous people were now a responsibility of the federal government, formally ignoring the authority and legitimacy of existing Indigenous governance structures. In addition, the policy of assimilation began to control Indigenous band membership, repress Indigenous spiritual practices, and force Indigenous children to attend settler controlled schools. As you will read in chapter 5, Québec Nationalists maintain their nationhood to this day. How would have Québec responded if the federal government unilaterally usurped all power and authority for the province of Québec? Such a transfer would never occur, numerous Prime Ministers have attempted to accommodate the political desires of Québec Nationalists.  There has not been an equivalent effort to listen to the political desires of Indigenous people (Ladner, 2005).

Made by User:Golbez., CC BY-SA 3.0 <http://creativecommons.org/licenses/by-sa/3.0/>, via Wikimedia Commons

To understand the efforts of the settler-colonial state to ignore the legitimacy of Indigenous governance, consider the sources of authority and legitimacy for Canada. Who were the parties to the original union of Canada?  If you answered Saskatchewan, you are incorrect.  Consider this evolving map of the territorial expansion of Canada. Ontario, Québec, New Brunswick, and Nova Scotia were the first four provinces to join Canada in 1867.  When they joined confederation, each province assumed that they each had complete authority and legitimacy to join confederation.  The authority and legitimacy to join confederation is intricately tied to land. But how did the provinces acquire this land?  Let us return to the principle identified earlier: settler-colonialism.  The original four provinces of Canada acquired their territory through processes of settlement.  For example, consider the province of Québec, how did Québec acquire its land?

Before you answer that question, what are some ways that nations acquire land?  Conquest, purchase, or treaty are some of the ways that nations acquire land.  Québec acquired its land without any of these processes. Québec acquired its land by settling the land over a period between when Jacques Cartier first “discovered” Gaspé and 1867. The legitimacy to do so was based on a concept known as terra nullius, a latin phrase meaning that the land was unowned, and therefore free to be claimed by anyone. However, this was mistaken, as Indigenous nations occupied this land. The lands of Québec were unilaterally transferred to the British in the 1763 Royal Proclamation.  There were never conquest, purchase, or a treaty made with Indigenous people to legitimize the authority of the settler state over the land.  As for the other three provinces, New Brunswick and Nova Scotia made treaties with Indigenous but these treaties did not deal with the issue of land, they were peace and friendship treaties (Paul, 2006).  Ontario also made treaties with Indigenous people, but the land was never unilaterally acquired (Borrows, 1997; Miller, 2009), instead it was agreed that the land would be shared like a “dish with one spoon” (Lytwyn, 1997). Additionally, the 1763 Royal Proclamation recognized Indigenous rights to land.  In other words, the original provinces of the Canadian union acquired their authority and legitimacy to exercise power in their territory in ways that were inconsistent with the legally established ways of acquiring territory, claiming authority over land from Indigenous people without their consent.  Furthermore, since Canada has not rejected the processes through which Britain acquired its territory, the legitimacy of the authority of the Canadian state is similarly troubled.  This creates the paired relationship between settlement and the elimination of Indigenous peoples. Settlement is intricately tied to elimination because without Indigenous people, the Canadian state does not have any challenge to the legitimacy of its authority to exercise power (Nichols, 2014).

It is important at this stage to clarify what is meant by the elimination of Indigenous people. Elimination not only means killing Indigenous people, it means eliminating Indigenous societies entirely, either through outright frontier homicide or assimilation (Wolfe 2006).  This include a variety of different strategies employed by settler-colonial states, such as “encouraged miscegenation, the breaking-down of native title into alienable individual freeholds, native citizenship, child abduction, religious conversion, resocialization in total institutions such as missions or boarding schools, and a whole range of cognate biocultural assimilations” (Wolfe 2006). The motivation of elimination is to facilitate settlement. Once Indigenous people are removed from their territory as Indigenous people, the existing authority and legitimacy of Indigenous nations on that territory is also removed, and that territory can be settled.

Canada’s policy of eliminating Indigenous nations culminated in the 1876 Indian Act, which combined various different laws aimed at assimilating Indigenous people. The act provided authority for government administrators to control many aspects of the lives of those Indigenous people considered “status Indians”, both on and off reserve. It created administrative structures for band governance outside of existing Indigenous governance structures, and put those under the control of the Canadian state. It created a register of all those considered “Indian” under the act, and declared those people as wards of the state. Crucially, it also empowered the Canadian state to define who was and who was not an “Indian”. This is an important fact to remember, as one of the policy goals of the state was the eventual elimination of Indigenous people entirely.

‘It’s Mine!’ c1900

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— ᓰᓰᑫᐧᓯᐢ (@PaulSeesequasis) December 7, 2017

You may have begun to notice an inherent tension between the history of Canada ignoring its own laws and customs regarding the acquisition of territory, and the concept of rule of law. Recall that the rule of law is the idea that the actions of the state will be governed by law, and that no one, including the government, should be exempt from following the law. This tension is especially apparent in the various treaties that exist between Canada and Indigenous nations.

Treaties are a particular form of agreement between two or more nations, voluntarily entered into between that creates mutually binding obligations.  Britain and Canada have made hundreds of treaties with Indigenous people.  There are so many treaties, it is best to view these treaties based on the era they were created.  Treaties made prior to 1867 are considered Pre-Confederate Treaties.  They largely aimed to maintaining peace and friendship between Indigenous and settler societies.  Treaties signed after confederation are Post-Confederate Treaties.  While we do not have enough time to analyze all the post-confederate treaties, let us to consider Treaty 6, since the University of Saskatchewan is situated in Treaty 6 territory. If you haven’t already done so, please read through the text of Treaty 6.

Ultimately, the text of the post-confederate treaties largely deals with the acquisition of land in exchange for certain benefits.  The Canadian government only recognizes the written version of the post-confederate treaties.  There are several issues with the Canadian approach.  First, translation issues and negotiation structure are not captured in the written version of these treaties.  For example, the British excluded women from the treaty negotiation tables.  For Indigenous people, since Indigenous women were central to Indigenous political theory, this signaled that the agreements did not cover the issue of land (Venne, 1997).  Second, the Canadian government does not recognize oral promises that were made during the negotiation of the post-confederate treaties (Cardinal & Hildebrandt, 2000).  For example, it was agreed that the land would be shared not unilaterally transferred.  Finally, the Canadian government has a limited interpretation of the written treaty promises.  For example, in Treaty 6 the government promised to maintain “schools for instruction”.  Indigenous scholars argue that written promise creates a treaty right to education, which includes all levels of education such as post-secondary education.  However, the Canadian government only provides limited funding for primary and secondary education on reserve (Stonechild, 2006).

Additionally, you may encounter the term Modern Treaty.  Modern Treaties are treaties that were negotiated after 1973.  While we will not have time to analyze this date, note that this date is significant for the Supreme Court Case Calder et al. v. Attorney-General of British Columbia, which forced the Canadian government to reconsider its approach to title and development. Like Post-Confederate Treaties, Modern Treaties are primarily focused on the acquisition of land. The difference between Post-Confederate and Modern Treaties is that Indigenous people contest the terms of the Post-Confederate treaties.

While the Indian Act was used as a method of suppressing and eliminating Indigenous peoples, it also protected certain legal and historic rights of Indigenous people. Although the act is paternalistic, it does outline a special relationship with Indigenous peoples, and defines certain responsibilities the Canadian state has. Attempts by the Canadian state in the 20th century to replace the Indian Act were also done in a way that deepened distrust from Indigenous leaders.  Such an example is The White Paper, a policy proposal that was forwarded by the Liberal government in 1969. Part of a larger effort by the government towards a “just society”, the proposal sought to end the Indian Act, which the government viewed as discriminatory. However, the proposal did not seek to improve the relationship between the Canadian state and Indigenous nations, rather the solution it offered was to assimilate all Indigenous nations entirely. The proposal included the elimination of Indian status, converting reserve land to private property, and gradually terminating all existing treaties, amongst other actions. Unsurprisingly, the reaction of Indigenous leadership to this proposal was overwhelmingly negative. Although the Indian Act was widely reviled by Indigenous nations, it at least recognized the special relationship between Indigenous nations and the Canadian state. The proposed changes were abandoned, but the issue of Indigenous rights became an active issue in the ongoing effort to repatriate the constitution during the 1970s.

After the experience of the white paper, Indigenous leadership was concerned that changes to the constitution might not recognize the relationship between Indigenous nations and the Crown. After a great deal of political effort, these leaders were successful in ensuring that existing rights were included in the 1982 constitution. However, there were several important things regarding Indigenous rights that the 1982 did not include.

At this point you should complete learning activity 10.2, paying close attention to what the 1982 constitution states about Indigenous people.

First, you may have noticed that in 1982 a new section, section 35, was added to the constitution.  Section 35(1) states “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”.  Section 35(2) states “in this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada”.  Section 35(3) states “for greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired”.  Like our analysis of Section 91(24), we also need to think critically about the implications of these new sections.  The first thing you need to know is that section 35(2) brings life to the term “aboriginal”.  Prior to 1982, “aboriginal” had no legal recognition.  After 1982, “aboriginal” legally refers to one of three groups Indian, Inuit, and Métis.  Furthermore, since “aboriginal” is a new legal term, the aboriginal rights of section 35(1) are also a new category of rights that only exist after 1982.  Section 35 is purposefully blank on the scope of aboriginal rights.

As we will cover in our next module, in many ways the 1982 constitution was unfinished effort. One major problem was that Indigenous rights were not fully defined, along with the fact that every province had approved except Québec. Prime Minister Pierre Trudeau promised a series of constitutional talks to discuss the scope of aboriginal rights, but these talks failed to produce any further clarification (Belanger & Newhouse, 2004). Further efforts by the federal government under the Conservatives, led by Prime Minister Brian Mulroney also failed. Notably, in 1987, the Meech Lake Accord attempted to address Québec’s grievances but neglected to deal with the issue of Indigenous rights. This led to Indigenous leadership opposing the accord, culminating in a dramatic moment in 1990 in the Manitoba legislature where the sole Indigenous member, Elijah Harper, prevented unanimous ratification of the accord on the final day possible for its ratification.

Elijah Harper (right) with Menno Wiebe (left). Mennonite Church USA Archives, No restrictions, via Wikimedia Commons.

The next attempt at resolving the issue of Québec and Indigenous rights would be the Charlottetown Accord in 1992. This time, Indigenous leadership were included in negotiations, and Indigenous rights were included in the proposed amendments.  The accord would have added an Aboriginal right to self-government as part of the larger structure of Canadian government. These Aboriginal governments would essentially operate as third levels of government in Canadian federalism, in addition to the provincial and federal governments. These governments would have constitutionally entrenched powers, but the legislation passed by the government would be subject to the judicial review of the Canadian judiciary, and needed to be consistent with the Charter of Rights and Freedoms. Although the accord did not define the exact form and structure these governments would take, it provided a time frame for further negotiation between the provinces, federal government, and Indigenous nations to determine this. There were mixed feelings regarding the Charlottetown Accord amongst Indigenous leadership. Some supported the accord as an improvement from the Indian Act, while others, such as Elijah Harper, felt that the ambiguity surrounding self government was unacceptable.  Ultimately the accord failed to be ratified by a national referendum due to growing discontent from various provinces over issues related to decentralization and concessions made to Québec. After the failure of Charlottetown, attempts to amend the constitution were essentially abandoned. To this day the Canadian government only recognizes legal challenges or negotiation with regards to Indigenous rights (Manuel & Derrickson, 2015).

The failure of Charlottetown meant that the status quo created with the 1982 constitution remained unchanged. While Section 35 of the constitution recognized and affirmed Aboriginal and Treaty rights at the highest level in Canadian law, section 35 did not define these rights. Outside of rights explicitly outlined in treaties, such as Treaty 6, the only way to define any additional rights in section 35 is to take the government to court. Recall the principle of stare decisis in common law, that courts should follow the precedents set down in previous cases. In order to rule on certain rights in these cases, the Canadian court must rely on previous cases and law in order define them. Once defined, the ruling gives the rights recognition. Canadian courts have proven an important venue for advancing the interests and rights of Indigenous people in Canada, albeit with mixed results. For example, in Delgamuukw v British Columbia, the ruling simultaneously recognized Aboriginal title to land as a right predating Canada, while also defining ways in which the Canadian government can infringe on those rights.  In other words, there are significant limits to the protections affirmed by section 35, and the use of court cases as a way to advance Indigenous rights. Yet in the absence of any attempts to amend the constitution, it remains the only way to define those rights according to Canadian law.

Finally, you may have noticed that the constitution only recognizes Aboriginal, Indian, Inuit, and Métis.  There is no mention of Indigenous or any other terms.  In other words, according to the Canadian state and constitution, only Aboriginal, Indian, Inuit, and Métis are official terms.  Indigenous, Nehiyaw, Dene, or any other term has no legal protection in Canadian law.  The question then is why do people use these terms?  The issue is a question of authority.  For Indigenous people, the Canadian state has no authority to define Indigenous identity. Being Indigenous is therefore a political response to settler colonial interpretations of and attempts to control Indigenous identity. Being Indigenous is about reconnecting to Indigenous knowledge and lands (Alfred & Corntassel, 2005).

As we covered in this module, there are significant injustices, inconsistencies, and tensions within Canada with regards to its relationship with Indigenous peoples. Canada is a country that adheres to the rule of law, but the authority of the Canadian state exists because of a history of ignoring law. Canada is a country that champions human rights, but has suppressed Indigenous human rights since it was created. Canada is a country that favours cooperative, multilateral international relations, but has pursued a policy of eliminating Indigenous nations and breaking treaties.  Canada is a country that is built upon liberal ideals of human equality, but as a settler-colonial state, has supported white supremacy.

Reconciliation is a loose term meant to refer to ongoing efforts by the Canadian government and other institutions to not only improve existing relationships with Indigenous nations, but to reconcile the ideas Canadians hold about themselves and their country with the incompatible reality of Canadian politics and history. It is also deeply political: remember that the existence of Indigenous nations present an ongoing challenge to the legitimacy of Canadian authority. Reconciliation is also about resolving these tensions.

It remains to be determined whether these efforts will be successful.