Canada’s long history of colonization and abuse of Indigenous people has made the topic of Indigenous rights a complex and sensitive one for many years. Indigenous peoples have lived on the land known as Canada for thousands of years. Despite their deep roots in the country, Indigenous peoples have historically been subjected to abuse, oppression, and colonization at the hands of the Canadian state. The negative impacts of this history are still felt today, with Indigenous peoples experiencing significant disparities in health, education, and employment outcomes, as well as ongoing challenges related to land and resource rights. In recent years, there has been a growing recognition of the need for reconciliation and the importance of recognizing and protecting Indigenous rights.
Several obstacles still exist, despite some attempts to resolve these problems. One of the many attempts to create a resolution between Indigenous people and the Canadian government led to the creation of the Royal Proclamation of 1763, which laid the groundwork for ongoing attempts to preserve Indigenous rights, acknowledging that Indigenous rights to land and self-determination must be upheld and supported by the Canadian government. The British North America (BNA) Act of 1867 also had significant impacts on Indigenous peoples in Canada. While the Act established the framework for Canadian federalism, it also emphasized the federal government’s authority over Indigenous people and their lands.
Indigenous people have also been controlled and assimilated under the Indian Act of 1876, which is still in force today. This has led to the loss of their language, culture, and land. In addition, the 1966 Hawthorn Commission was established to investigate the conditions of Indigenous peoples and to provide recommendations to the government on how to improve their lives. Further, the White Paper policy of 1969 attempted to integrate Indigenous peoples into Canadian society. The Royal Commission on Aboriginal Peoples (RCAP) and the Truth and Reconciliation Commission (TRC) also emphasized the ongoing violations of Indigenous rights in Canada, including the impact of the residential school system. To resolve these problems, the Canadian government accepted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which affirms the rights of Indigenous peoples to self-determination,
Overall, this policy brief provides an overview of the historical context of Indigenous rights in Canada, the current state of Indigenous rights, and proposes policy recommendations for the protection of Indigenous rights. It argues that the recognition and protection of Indigenous rights in Canada are crucial for achieving true reconciliation and building a just and equitable society for all. This paper recommends addressing historical trauma and fostering reconciliation, as well as repairing nation-to-nation relationships by adopting the RCAP and/or the TRC. The recommendations put forth in these reports provide a roadmap for addressing these issues and moving toward true reconciliation.
Policy Problem:
Throughout history, Indigenous peoples in Canada have experienced oppression, exploitation, and colonization. They faced many challenges, including residential schools, systemic discrimination, and colonial authorities forcibly removing their lands and resources. In an attempt to recognize and protect Indigenous rights in Canada, the government took steps to address these issues. One of the first steps taken includes the Royal Proclamation of 1763. The Royal Proclamation was the first to lay the foundation for the land cession treaty system that exists today in western Canada and Ontario. The Proclamation is referenced in Section 35 of the Constitution Act of 1982 as a historic document that acknowledged the sovereignty and rights of Indigenous peoples to their territory. For the recognition and defense of Indigenous rights in Canada, the Royal Proclamation’s guiding principles must be upheld. According to the Proclamation, there would be “nation-to-nation” relations between the Crown and Indigenous peoples. This requirement meant that Indigenous peoples have autonomy and are a unique diplomatic force. The Proclamation also reaffirmed the terra nullius doctrine, which stated that an uninhabited land is free for the taking and is not governed by the authority of a recognized state. In this regard, Indigenous people were considered independent of the Crown and to be protected from dishonest land traders and speculators. Conversely, the reality was quite different for Indigenous peoples as the Crown supported the principle of “collective treatment,” which meant that they believed the First Nations were not deserving of being treated with dignity as individuals in legal affairs. Consequently, land cessions were justified by the Crown’s view of Indigenous peoples as a “nuisance to colonization.” Up until the 1960s, policies that encouraged isolation were convenient for keeping Indigenous peoples out of consideration. This suggests that Indigenous communities continue to experience discrimination and injustice.
In addition, the 1867 British North America (BNA) Act further complicated Indigenous land rights in Canada. The passage of the BNA Act brought Indigenous lands and resources under the jurisdiction of the Canadian government. Indigenous peoples were not acknowledged as a founding nation of Canada in the Confederation. The Act deprived them of their inherent rights and effectively rendered them “wards of the state.” In addition, Section 91 of the Act gave the centralized Canadian government control over former colonies. The diplomatic ties between the Crown and Indigenous peoples were no longer maintained as “Indians and territories reserved for Indians” were now entirely under state authority. As a result, non-Indigenous people continue to profit from Indigenous people’s continuous dispossession of their lands and resources. This represents Indigenous populations who have suffered greatly as a result of this dispossession, losing not just their lands and resources but also their culture, language, and sense of self. The marginalization of Indigenous peoples within Canadian society and legislation was further justified by the 1876 Indian Act and the 1880 Indian Act. These Acts removed self-governance and gave the federal government responsibility over education, finances, and social services. In addition, the freedom of movement of Indigenous peoples was restricted; they were assigned to bands, which were then allotted to reservations. Through this, the Indian Act strengthened the administrative branch of government while imposing a majoritarian democracy on minorities. Subsequently, the “Indian Problem” was addressed by establishing and implementing new Aboriginal policies that favored the government. This led to the establishment of residential schools and the “pass system,” which supported assimilation by promoting colonist culture and the Christian religious tradition. As a result, government policies took away Indigenous authority in treaty-making and self-government. Relatively, the aims of the Canadian government had totally overshadowed Indigenous rights.
Furthermore, in the 1950s and 1960s, people became increasingly aware of the social and legal inequities faced by Indigenous peoples. This led to the formation of Indigenous activist groups, like the National Indian Brotherhood and the Federation of Saskatchewan Indians. Respectively, the Hawthorn Commission was founded in 1966 to research the social position of Indigenous Peoples in Canadian society. The report of the Commission acknowledged the need for Indigenous peoples to have autonomy and independence over their governments. For example, it recommended “continuing encouragement for the Indian local government.” The report also emphasized that Indigenous peoples were Canadian citizens and possessed the same citizenship rights as other Canadians. Subsequently, the term “citizens plus,” coined from the report, emphasized extravagant spending on Indigenous peoples as restitution for years of mistreatment under the Canadian system and to assure the preservation of their distinct identity. Although the Commission was not fully implemented because of its costly recommendations, it was crucial in creating the first framework for the 1969 White Paper.
To add onto that, the 1969 White Paper policy was created by Pierre Trudeau and his Minister of Indian Affairs, Jean Chrétien, in response to the growing interest in Native issues. The foundation of the policy was Trudeau’s vision of a “just society” that respected individual liberty and freedom of opportunity. The policy stated that the Canadian government acknowledges the injustice done to Indigenous people and recognizes that “true reconciliation requires the adoption of real and renewed partnership based on recognition of rights, respect, cooperation, and partnership.” Additionally, Trudeau believed that the “citizens plus” distinct legal provision was unfair to both Canadians and Indigenous peoples. Therefore, the White Paper outlined a change strategy in six steps. It suggested that the legal and constitutional justifications for discrimination be changed and that Indigenous culture’s contribution to Canadian culture be widely acknowledged. The policy also suggested that services be offered to all Canadians through similar channels/government organizations and that the most assistance be given to those most in need. Also, it reaffirmed the recognition of legal obligations towards all Canadians, including the handover of Indigenous land authority to the original residents. Assimilation, maintaining reserves, and playing a “full role in Canadian society and the economy while retaining, strengthening, and developing an Indian identity that preserves the good things of the past and helps Indian people to prosper and thrive” were the other three options put forth in the White Paper. Although it officially denounced assimilation, the White Paper was expected to abolish the legal category of “Indian” in an effort to equalize all Canadians. This policy was not well-received as it appeared to indicate that treaties and reservations protecting Indigenous rights would be terminated. Indigenous Peoples believed the White Paper would effectively backtrack the promises of autonomy made by both the Canadian government and the British Crown.
In addition, the White Paper policy ignored the recommendations provided by Hawthorn’s Commission on the topic of special rights. Relatively, the policy was seen as offensive and rejected because of its disregard for the rights and interests of Indigenous peoples. The chiefs of Canada also argued that Trudeau failed to accommodate Indigenous peoples who simply desired to maintain their traditional lands and culture. Growing media attention helped Indigenous people unite and gather the sympathy of many non-Indigenous Canadians. For example, in Les Sillars’ article titled “The New Indian Wars,” he stated that the impacts of not accepting the White Paper have been “costly and tragic.” On behalf of Indigenous peoples, Harold Cardinal also publicized “The Red Paper,” (Citizens Plus), as a satirical response to the White Paper. The document by Cardinal promoted the idea that Indigenous peoples have more rights than other Canadians and a return to their original treaty relationship was necessary. As Leslie (2002) stated, the 1969 White Paper was “straight assimilation” as it led to a political uproar among Indigenous peoples and their supporters. In this regard, Trudeau abandoned the White Paper policy due to the public backlash it faced. Even though the negativity and general disapproval towards the White Paper subsided after its rejection, it sparked a desire for progress among Indigenous peoples. Throughout Tom Flanagan’s work “First Nations? Second Thoughts,” he stated that it created a “new era in Native politics.” Although the Canadian government is dedicated to recognizing and upholding Indigenous rights, the unsuccessful implementation of policies/recommendations suggests the urgent need to address the ongoing issues and concerns related to Indigenous rights.
Potential Solutions:
In response to the disputes between Indigenous people and the Canadian government, the Royal Commission on Aboriginal Peoples (RCAP) established a Royal Commission in 1991. The Commission conducted a thorough review of Canada’s history of treaty-making and enforcement and it included an extensive analysis of past and present relations between Indigenous and non-Indigenous peoples in Canada. Following talks with Indigenous groups, Indigenous leaders, federal and provincial politicians, and experts, including former Chief Justice Brian Dickson, the commission’s terms of reference were created. This led to the release of the “Indian Commission Report,” which explains and acknowledges the abuse and systemic discrimination faced by Indigenous peoples in Canada. This report provided several recommendations to the federal government, urging it to utilize its authority to set up a tribunal in collaboration with Aboriginal peoples to carry out the spirit and purpose of the treaties. On the advice of Chief Justice Brian Dickson, the seven commissioners were divided into four Indigenous and three non-Indigenous members. The research plan, which had four main areas: government, land and economy, social and cultural challenges, and the North, was developed in consultation with Indigenous communities. The recommendations also included the adoption of an “Aboriginal Charter of Rights and Freedoms” in Canada. The report’s key finding was that Canada’s relationship between Indigenous and non-Indigenous peoples has to be completely restructured. The idea for a new Royal Proclamation, which would oblige the government to commit to a new set of moral standards regarding the relationship between Indigenous peoples and the state, was one of the more general recommendations. These recommendations, however, were not followed up by the federal Crown. The current federal policy does not allow the government to negotiate or reevaluate the status of its treaty relationship with Indigenous people. In fact, a unilateral federal government action in 2000 forced the closure of the Indian Commission of Ontario, which is the only permanent venue in Ontario for debating matters of shared interest to Indigenous peoples and the Crown. Like the federal claims policy, provincial land claims policies do not examine claims of pre-existing treaty rights. This indicates that Canada does not have a formal policy in place for the implementation of treaty rights in Ontario, and there are no ongoing negotiations to resolve disagreements regarding the significance of treaty promises in Ontario. There is no overarching structure in place in provinces to define and safeguard the Indigenous rights stipulated in treaties, and this is a problem that demands urgent attention.
Moreover, when the federal government provided a formal response on January 7, 1998, its recommendations placed a focus on non-constitutional solutions to a number of the issues raised in the report. Renewing partnerships, enhancing Indigenous governance, establishing new fiscal linkages, and promoting robust communities, people, and economies were the four goals of the federal response. Similarly, the federal government released a Declaration of Reconciliation in which it professed sincere regret for past mistakes and vowed to do better moving forward. This Declaration is known as the “Truth and Reconciliation Commission of Canada.” The “Final Report and Recommendations” was established as part of the Indian Residential Schools Settlement Agreement. In order to assimilate Indigenous children into Canadian society, the residential school system took Indigenous children away from their families and communities. This system’s long-term effects have been severe, leaving many survivors with intergenerational trauma and ongoing issues. The report looked into the legacy of residential schools and made recommendations for reconciliation. It included a thorough description of what truly happened to the Indigenous children and how they were physically and sexually assaulted in government boarding schools. Aside from that, the TRC hosted seven national events across Canada to educate the Canadian public, create awareness about the history and legacy of the residential schools, and provide avenues to share/honor the experiences of victims and their families. The TRC also created a historical record of the residential school system and gave millions of people access to the record. Thereafter, the commission issued 94 “calls to action,” urging the federal, provincial, territorial, and Indigenous governments to collaborate in order to change policies and programs in an effort to undo the damage inflicted by residential schools and advance the process of reconciliation.
In line with the recommendations of the TRC, the government announced that Canada would collaborate with leaders of First Nations, the Métis Nation, Inuit, provinces and territories, parties to the Indian Residential School Settlement Agreement, and other
Policy Recommendations:
Since colonization, the Canadian government and the British Crown have created laws and legal frameworks regarding the use of Indigenous lands. The right to preserve and make use of lands and rivers for customary means of subsistence, knowledge, and culture is acknowledged in varying degrees by different policies and legal frameworks. However, most of these policies have faced major backlash and were ultimately unsuccessful. To address the ongoing issues with Indigenous rights in Canada, the government should consider implementing the recommendations provided by The Truth and Reconciliation Commission and/or the Royal Commission on Aboriginal Peoples Report. The implementation of these reports can bring several important benefits for the government and society at large. For instance, the TRC highlighted the background of the residential school system and it drew attention to the persistent breaches of Indigenous rights in Canada. Relatively, this can help ensure that those responsible for previous wrongs are held accountable, restore the dignity of victims, and advance efforts to stop such injustices from happening in the future. Subsequently, this will indicate a readiness to rectify past wrongs and foster inclusion, which will increase trust between the government and Indigenous people. This, in turn, will help fulfill the interests of the government, victims, and any other stakeholder involved. Moreover, it is important for the Canadian government to keep funding programs for residential school survivors and their families’ mental health and drug treatment. The government should also collaborate with Indigenous tribes to create initiatives that support healing and peace. This includes encouraging cultural revitalization initiatives and ensuring Indigenous peoples have access to services tailored to their cultural norms. This is because the general well-being of Indigenous peoples is crucial to the inclusive growth of Canada. In doing so, the gaps in socio-economic outcomes between Indigenous and non-Indigenous people will be narrowed down, and this will lead to the overall growth of the nation.
Further, the continued breaches of Indigenous rights in Canada, especially the effects of the residential school system, were emphasized by the Truth and Reconciliation Report. It addresses the Legacy of Residential Schools and challenges the government to take action toward reducing the social and economic marginalization faced by Indigenous peoples. This includes improving their access to education, health care, social services, and so on. In this regard, the suggestions made in these studies offer a path for overcoming these problems and progressing toward real reconciliation. This will help the government, Indigenous communities, and their supporters (which includes non-Indigenous peoples) to come to a benefit-sharing agreement that includes reconciliation and reparations for past actions. With the RCAP, if the recommendations provided are put into practice, there will be sustenance for present and future generations. By creating a space for meaningful consultation and participation of Indigenous peoples, RCAPs can contribute to building stronger and more collaborative relationships between Indigenous communities and the government, leading to improved policy outcomes and more effective governance. Additionally, from the disputes and conflicts between Indigenous peoples and the Canadian government, it is evident that land is a key component of sustainable economic development. On this note, improving the framework for Indigenous peoples to secure land through appropriate policies will help create unity and coherence between all levels of government. This, in turn, will strengthen provincial engagements and help coordinate investments.
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