Last month, after nearly three years, the National Inquiry Into Missing and Murdered Indigenous Women and Girls came to an end. The first article in MJPS’ two-part series gave an overview of the inquiry and the government’s response to date. This piece revisits the history and legal tools of the oppression of Indigenous peoples in Canada, which is key to understanding the gravity of violence against Indigenous women. Colonialism attempts to erase Indigenous peoples from Canada’s political landscape and continues to systematically destroy Indigenous society and culture.
The Evolution of the Collective Rights of Sovereignty and Self-Determination
International Recognition of Collective Rights from Discovery to Present
In the late fifteenth century, Christopher Columbus made his infamous first voyage to the Americas. The Doctrine of Discovery was created to justify European sovereignty over the land. It follows that territory which is terra nullius – legally unoccupied or uninhabited land – can be claimed by right of occupancy. This principle was applied by colonial powers to parts of what is now British Columbia. In this case, the settler government effectively assumed that in the absence of permanent or sedentary residences, local Indigenous nations had no claim to sovereignty on their land. Over time, the concept evolved to allow European colonizers to appropriate land not occupied by Christians. In this sense, the Doctrine of Discovery evolved into the nineteenth-century concepts of racial superiority and the idea of being a ‘civilized’ people.
The Doctrine of Discovery was repudiated in December 1960 by the international community when the United Nations made its “Declaration on the Granting of Independence to Colonial Countries and Peoples”. The declaration supported the decolonization of all peoples which includes peoples who were ‘conquered’ or those who demonstrate a seeming “inadequacy of political, economic, social or educational preparedness”.
The legal recognition of the self-determination of all peoples was enshrined in the first articles of the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights in 1966. The right has since has been confirmed at the International Court of Justice. In 1975, the court ruled against terra nullius in Western Sahara since Indigenous sovereignty is demonstrated by nations’ ability to make treaties not simply by their occupation of territory. Furthermore, the United Nations Human Rights Committee (UNHRC) has also made decisions affirming collective rights.  Notably, they found Canada in violation of the Lubicon Lake Band’s rights to traditional lands and culture due to oil and gas exploration on the Band’s territory in 1990.
Since the nineteenth-century, Indigenous groups have used international forums to resist Canadian colonization and gain concessions from the Canadian state. Pan-Indigenous movements and solidarity led to the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in April 2007 at the United Nations General Assembly. While Canada initially opposed UNDRIP, the Harper government signed on with restrictions in 2010, and the 2015 Liberal campaign fully endorsed it. However, Bill C-262, which will implement UNDRIP, is currently being stalled in the senate. The government’s hesitation to support UNDRIP evinces tensions between the Government’s claim to the land and their desire to uphold fundamental individual and collective rights. 
A Nation-to-Nation Relationship: An Old Idea Lost for Centuries
Under French rule, while settlers in Eastern Canada coexisted with the Indigenous peoples of the region, many of the interactions were based on the colonizer’s desire to convert and civilize the Indigenous people. In interacting with Indigenous individuals, French missionaries applied and exported their gendered standards, and “the freedom and self-determination exercised by Indigenous women were seen as contrary to Christian values”. In this period there are also instances of Indigenous women and girls being forcibly taken back to Europe as ‘curiosities’ which dehumanized them.
Following the end of the Seven Years’ War, the British began formalizing their claim to the land by signing treaties with Indigenous Nations. Over the course of the nineteenth and early twentieth century, treaties moved westward with Canada’s expansion. According to authors like Tully and Ladner, the earlier treaties show that the European-Indigenous relationship was one between nations.  However, as settler populations increased and the colonies became wealthier and stronger militarily, the relationship became unequal.  Theories of racial superiority turned into policy would culminate in the Indian Act of 1876, signed into law nearly a decade after the settlers became independent from Great Britain. 
It is worth noting here that treaties written in European languages, whose Indigenous counterparts are missing, can only be interpreted from one side. It was in the best interest of the Europeans to define First Nations as subjects to defend their territorial position. However, per Natasha Simon, this does not mean that the perspective of First Nations when it comes to treaties is incorrect. 
Legal scholar John Borrows’ work has shown the existence of distinct First Nations legal traditions. These legal traditions clearly demonstrate First Nations’ ability to self-govern. It follows that any nations with legal traditions can have accurate understandings of the treaties they are signing; their interpretations of treaties should be treated as equal to the interpretation of the other signing parties. Considering that contemporary agreements, like the James Bay and Northern Quebec Agreement signed in 1975, have not been upheld by the government and required decades of legal action to ensure compliance, compliance with older, less explicit treaties is necessarily poorer.
Treaty Rights and Legal Precedent in Canadian Law
In 1888 the Judicial Committee of the Privy Council (at the time Canada’s highest court) ruled in St Catharine’s Milling and Lumber Company v. Queen that Indigenous land rights were dependent on the goodwill of the government. This ruling allowed the government to refuse to acknowledge land claims between 1921, after signing the last of the numbered treaties, and 1973. Then, in 1973, the Supreme Court found in the Calder Case that Indigenous land rights had not been extinguished, meaning that in many cases the government would need treaties to legally occupy the land.
In 1990, R. v. Sparrow marked the first time the Supreme Court had the opportunity to interpret s.35 of the Constitution, which enshrines treaty rights. Robert Sparrow, a member of the Musqueam nation in British Columbia, contended that restrictions on fishing nets in the Fisheries Act were inconsistent with s.35. The court placed the ‘’burden of justifying any legislation that has some negative effect on any Aboriginal right protected under s. 35(1)” on the government and ended up ruling in favour of Sparrow. The Supreme Court also expanded rights to those not explicitly written in treaties and made it more difficult for the government to use the public good in defence of infringing on Indigenous land rights.
Treaty rights were again curtailed when in 1996 the Supreme Court ruled in R. v. Van Der Peet that fish caught under s.35, which allows First Nations to fish for cultural purposes, cannot be sold. This established when and how rights guaranteed under s.35 can be used. First Nations’ ‘extra rights’ are tightly controlled in their use and cannot extend beyond cultural uses existing at the time of conquest. This effectively curtailed the rights of First Nations to make autonomous decisions on their land and limits Indigenous rights to resources and the land which are important culturally and economically for the survival of Indigenous communities.
Oppression, Social Dislocation, and Violence in a Newly Independent Country
Canada was founded on an agreement between provinces in 1867 which allows every province to retain governance over its people. In stark contrast, for Indigenous Nations, the change in government brought new colonial governance structures to replace those which had served nations for centuries.
The policies put in place to identify individuals as “Indian” or “Inuit” were also used to monitor and control individuals which had the side effect of dehumanizing them. The new structures destroyed the relationship between women and the land, placed men in charge of resources, and forced gender and sexuality into binaries. Because of this, gendered violence is tied to the veil of colonialism: in order to lift the shame and trauma of unheard voices, individuals need to be able to reaffirm their Indigenous identities and ways of life.
Violence Against Women and Social Dislocation
Early on, Canadian officials viewed Indigenous and Métis women as more promiscuous and dangerous to white settlers. In 1892, after the consolidation of the Canadian criminal code, it became easier to convict First Nations women of prostitution. It was at this time that the pass system was introduced on reserves to prevent individuals from leaving the reserve without permission from their ‘Indian Agent’. During the 1880s, police violence against Indigenous women began to rise with many cases of rape and murder carried out or covered up by officers.
State violence against women also included forced sterilization, mostly carried out during the mid-twentieth century by provincial health regimes. For example, in Alberta, Indigenous women were the most likely targets of the Eugenics board which sterilized women, sometimes without consent. Starting in 1951, after the Indian Act was amended provinces also became responsible for child welfare services. As a result, from the 1950s through the 1990s over 20 000 Indigenous children were taken. This period, known as the Sixties Scoop, involved high levels of out-of-province and out-of-country adoption which made the repatriation of children to their communities harder.
In 1883, as part of the civilizing project, the residential school system was introduced. According to the Final Report of the National Inquiry, “attendance within the school system, as well as the intergenerational trauma of family members who may have attended, was a key driver in the contributing causes to the crisis of violence against Indigenous women, girls, and 2SLGBTQQIA people.” Education for girls in the residential school system focused on domestic duties and girls were often encouraged to drop out early, girls were also made to be ashamed of their bodies during puberty while at the same time were the targets of sexual abuse.
The religious doctrines imposed by the colonizers stand in stark contrast to the fluidity of gender and sexuality in many Indigenous societies. For example, in the Anishinaabe language, there are no gender pronouns. Rather, objects are characterized by whether they are animate or inanimate. Additionally, students were not taught their native languages which led to some being unable to communicate with their families.
The system, which formally ended in 1996, led to the Truth and Reconciliation Commission of Canada which ran from 2009 to 2015 to create accessible historical records and ensure the history and legacy of the system is never forgotten. The Final Report of the Royal Commission on Aboriginal Peoples in 1996 “recommended a separate public inquiry into residential schools.” The 2008 House of Commons apology for the system was met with mixed emotions: while some felt it would be the beginning of a new era of positive relations, others pointed to the necessity of meaningful action to effect change.
The Indian Act
The Indian Act passed in 1876 and amended multiple times since is the piece of legislation which manages Indigenous rights in Canada. Until 1951, it prevented women with Indian status from voting in band councils, made many Indigenous cultural practices and ceremonial dress illegal, and prevented individuals with Indian status from hiring legal counsel. Following its assimilationist goal, the Indian act prevented women from keeping their Indian status if they married men without status until 1981, when the UNHRC ruled that Canada was in violation of the Convention on the Elimination of Discrimination Against Women for sex discrimination in the Indian Act.
The political implications of the decision led to Bill C-31 being adopted to try and rectify the discrimination. The changes made did, however, return status to many women who otherwise would have been legally excluded from participating in their communities. Today, because the Indian Act passes status through the father’s bloodline, children of status women and non-status men cannot receive Indian status.
Ultimately, the Indian Act remains a tool that Canada uses to oppress Indigenous people. Yet, at the same time, “the Indian Act legally distinguishes between First Nations and other Canadians, and acknowledges that the federal government has a unique relationship with, and obligations to, First Nations.”
In 1969, Prime Minister Pierre Trudeau’s White Paper proposed completely eliminating the Indian Act and Indian Status which have eliminated treaty-based relationships between Canada and Indigenous nations. However, it was never implemented due to large-scale opposition. As such, there is potential for reforms that would allow nations to exercise their right to self-determination without perpetuating a colonial relationship between Canada and Indigenous nations.
Legal Principles Designed to Protect
The Gladue Principle was established by the Supreme Court in 1999 to allow room for a restorative justice approach in cases where defendants are Aboriginal individuals. The principle is important because it allows for mitigated sentencing for individuals who have, for example, spent time in residential schools or in the foster care system.
The principle also aims to reduce the overrepresentation of Indigenous individuals in the Canadian jail system. The National Inquiry raised the question of whether this principle is applied evenly to men and to women and whether, when Indigenous women are the victims of Indigenous men, the Gladue Principle may be used to enforce stereotypes of Indigenous women. The report also raised evidence from testimonies that, while the Gladue Principle has lowered incarceration rates for men, it has not done so for women. Because of this, the Inquiry’s Calls to Action include more uniform availability and application of the Gladue Principle.
Jordan’s Principle was enacted unanimously in 2007 by Parliament after a five-year-old Cree boy in Manitoba died in the hospital, never having lived at home because the provincial and federal government could not agree whose jurisdiction it was to pay for his in-home care. Since 2017, it applies to all First Nations children regardless of their status and requires the federal government to pay for “health, social and education services that are needed right away” and settle jurisdictional issues afterwards. Since it was implemented, the government has been charged multiple times with discrimination, unlawful bureaucratic delays, and gaps in services by the Canadian Human Rights Tribunal. Notably, the Inquiry calls on the government to comply with the Tribunal’s rulings and apply the principle to Inuit and Métis children.
Meaningful Change Requires More than an Inquiry
The abridged history presented in this article is essential to understanding gendered violence against Indigenous people: the structures created by colonialism “still play a role in controlling which services people can access and which laws communities can make, and in creating conditions that are unsafe.” Unfortunately, when legal principles which intend to help are poorly implemented and rights granted are clawed back by later rulings, Canada seems incapable of fully committing to improving Indigenous nations’ and individuals’ ability to exercise their rights.
Apologies and inquiries are necessary. However, structural change is the only way to create an environment where Indigenous individuals can employ their rights. Whether Prime Minister Justin Trudeau has upheld his campaign promise to put forward a new “nation-to-nation process” will be judged not on his words but rather on his actions.
Edited by Eyitayo Kunle-Oladosu
The opinions expressed in this article are solely those of the author and they do not reflect the position of the McGill Journal of Political Studies or the Political Science Students’ Association.
- Graham, Lorie & Wiessner, Siegfried. “Indigenous Sovereignty, Culture, and International Human Rights Law.” South Atlantic Quarterly 110, 2: 417. https://doi.org/10.1215/00382876-1162516.
- Lenzerini, Federico. “Sovereignty Revisited: International Law and Parallel Sovereignty of Indigenous Peoples,” Texas International Law Journal 42, no. 1 (2006): 182.
- Ladner, Kiera. “Rethinking Aboriginal Governance.” In Re-Inventing Canada: Politics of the 21st Century edited by Janine Brodie and Linda Trimble. Toronto: Pearson Education Press, 2003. http://www.mypearsonstore.ca/bookstore/re-inventing-canada-politics-of-the-21st-century-9780130826343?xid=PSED.
- Simon, N. (2016). Beyond Cultural Differences: Interpreting a Treaty Between the Mi’kmaq and British at Belcher’s Farm, 1761. In Battiste, M. Editor, Living Treaties: Narrating Mik’maw treaty relations (166-178). Nova Scotia: Cape Breton University Press: 176-177. http://cbup.ca/books/living-treaties-narrating-mikmaw-treaty-relations/.
Recommended Related Readings
- Borrows, John. (2010). Canada’s Indigenous constitution. Canada: University of Toronto Press.
- Obomsawin, Alanis, director, Kanehsatake: 270 Years of Resistance. Motion Picture. Canada: National Film Board, 1993. Retrieved from: https://www.youtube.com/watch?v=7yP3srFvhKs.
- Russell, Peter H. (2004). Constitutional odyssey. Toronto: Toronto University Press.
- Simpson, Leanne, Dancing on our turtle’s back: Stories of Nishnaabeg recreation, resurgence and a new emergence. Manitoba: Arbiter Ring Publishing, 2011.
Featured image by Pax Ahimsa Gethen via Wikimedia Commons