Settler Colonialism in Canada

The Christian Doctrine of Discovery is a legal doctrine upon which settler colonialism is justified in Canada.[2] The doctrine allowed Christian European explorers to claim non-Christian lands for their monarch based on papal bulls.[3] The doctrine was applied to the Americas when Pope Alexander VI issued Inter caetera (1493), giving Spain title to "discoveries" in the New World.[3] This was in reaction to Pope Nicholas V's Dum diversas (1452) and Roman Pontifex (1455), which sanctioned Portugal's conquests in North Africa, starting the transatlantic slave trade.[3] England and France's subsequent land claims and disputes in the Americas were settled by British triumph in the Seven Years' War and the following Royal Proclamation of 1763.[3] British and French colonial settlement contributes to Canada's origin myth of "two founding races," completely erasing Indigenous peoples.[4]

This fundamental misunderstanding regarding underlying title forms the basis of the "land question" in Canada. In the landmark Tsilhqot'in Nation v. British Columbia decision, the Supreme Court of Canada rejected all Crown arguments for Aboriginal title extinguishment, acknowledging the Doctrine of Discovery is racist.[2] While this calls into question the legitimacy of the Canadian settler colonial state to exist on Indigenous territories, what this Supreme Court decision means on the ground remains to be seen.

Royal Proclamation of 1763

The Royal Proclamation of Canada, is known to be one of the most important treaties in Canada between Europeans and Indigenous peoples. The Royal Proclamation by King George III established the relationship between Indigenous people and the Crown, which recognized Indigenous peoples rights as well as defining the treaty making process which is still used in Canada today.[5] The Royal Proclamation also acknowledged the constitutional right that Indigenous peoples have the right to sovereignty and self government. Within the document, both sides agreed that treaties were the most effective legal way for Indigenous people to release control of their land, however the Royal Proclamation was written by the British with out any Indigenous input which resulted in a monopoly over Indigenous lands by the British Crown.[6] The Proclamation banned colonial setters from claiming the land that was being populated by Indigenous peoples, unless the land had first been bought by the Crown and then sold to the settlers.[7] As time passed colonial settlers and governments were ambitious to establish their own communities and extract resources to send back to Europe, forgoing the guidelines set out in the Proclamation. Colonial settlers did not share the same view as Indigenous peoples on the sacredness of the land, but rather as something that could be easily bought and sold. As the number of colonial settlers increased the use of land for farming and mining increased and Indigenous relations that were established in the Royal Proclamation began to deteriorate.

Assimilation was the goal for the Europeans for indigenous individuals for much of history, this can be seen in the Gradual Civilisation Act. This act was made in 1857 by Canada's fifth Parliament after it had gotten the power from the British Parliament to autonomously create legislation. This act played on the idea of how indigenous individuals were 'savages' that needed to be reformed by the civilised Europeans, thus the act being called the Gradual Civilisation Act. In some ways the Gradual Civilisation Act was an extension of residential schools because it had the same goal but this act was targeted towards adult indigenous men instead of children. This act made it so that Indigenous men if they wanted to could become a part of the European society, if they were to give up many different aspects of their culture. When it came to the European definition of being civilised this entailed being able to speak and write either English or French, and to be as similar to a European man as possible so that there were no discernible differences. There were commissioners that were tasked to make sure that these criteria were filled, and they examined the indigenous individuals to make sure that they were meeting the criteria. The outcome of this was that any individual that was deemed to meet the criteria could become enfranchised. This act was a direct consequence of Settler colonialism as the indigenous individuals were forced to assimilate to the world views and customs of the settlers.[8]

In 1876 The Indian Act was passed by the Canadian government allowed the administration of Indian Status, reserve lands and local Indigenous governance.[9] This Act gave the Canadian Government control over Indigenous identity, political practices, governance, cultural practices and education.[10] One of the underlying motivations in this Act was to enforce a policy of assimilation and Cultural genocide, to prohibit Indigenous peoples from practicing their own cultural, political and spiritual beliefs.[9][11] The Act defined Indian Status and the entitlement and legal conditions that accompanied it, established land management regimes on reserves, managed the sales of natural resources, and defined band council powers and electoral systems.

Gender discrimination within the Act enforced gender bias as another means of extinguishing Indian Status, thereby excluding women from their rights. Under this legislation, an Indian woman who married a non-Indian man would no longer be Indian. She would lose her Status, treaty benefits, health benefits, the right to live on reserve, the right to inherit property, and even the right to be buried with ancestors. However, when an Indian man married a woman without Status, he retained all his rights.

In 1951, after World War II, the Act was amended, to lift the various restrictions on Indigenous culture, religion and politics. This included the removing bans on Potlatch and Sun Dance ceremonies. Additionally, these amendments allowed women to vote in band council elections and Elsie Marie Knott was the first woman to be elected Chief in Canada. However, these actions didn't eliminate gender disparity in Status requirements. Instead of having "Indian blood", Status was assigned through the Indian Register, where male lines of descent were still privileged.[9] In 1985, the Act was amended again, through Bill C-31, in order to reflect the newly enacted Canadian Charter on Rights and Freedoms. The amendment allows women who “married out” of Indian Status, to apply for their rights and Status to be restored.[12]

Residential schools was an extensive school system that was set up by the Government of Canada and organized and ran by Churches. Residential schools began operation in Canada in the 1880s and began to close during the end of the 20th century.[13] Residential school's main objectives were to educate indigenous children, by teaching Euro-Canadian and Christian values and ways of living to assimilate Indigenous children into standard Canadian cultures. The values that were taught in residential schools were brought to Canada from the colonial settlers who made up a majority of the Canadian population at this time.

Residential School in Middlechurch, Manitoba

In Canada over 150,000 children attended residential schools throughout the century that they were in operation for. The Indigenous children that attended residential schools were forcibly removed from their homes and families. While at residential schools students were no longer aloud to speak their own language or acknowledge their culture or heritage without the threat of punishment.[14] If rules were broken the students were brutally punished. Residential schools were known for students experiencing physical, sexual, emotional and psychological abuse from the staff of the schools.[13] Residential schools resulted in generations of Indigenous peoples who lost their language and culture. The removal of homes at such a young age also resulted in generations of peoples who did not have the knowledge or skills to have families of their own.

As colonial settlers began to populate Canada, they brought their own Eurocentric views that believed that their civilization was the ultimate goal. Colonial settlers saw Indigenous people as savage pagans that needed to be civilized, with the best means of doing so was through government mandates education. Residential schools did not result in the education of indigenous peoples, as much as it did result in a settler colonial genocide of Canada's Indigenous peoples.[15] The establishment of residential schools is a direct link to colonial settlers and the values that they brought, when they began to populate what we know today as Canada.

Colonialism is defined by its practice of domination which includes the subjugation of one people, the colonizers over another, the colonized. The distinction of settler colonialism is its goal of replacing the people already living there. Through colonization Canada's Indigenous people have been subject to the destruction against their culture and traditions through assimilation and force. It can be argued that Colonialism and its effects are still ongoing when looking at current events.[16]

With the last Residential School closing in 1996[17] it is a recent event for many in the Indigenous community who were either directly or indirectly affected by it. The attendance of those at Residential schools proved to have a significant impact on the health of the indigenous population with long lasting effects including intergenerational trauma. The state of both mental and physical wellbeing of the Indigenous people in Canada are frequently identified to be negatively impacted due to the experience of residential schools. For First Nations as well as metis and Inuit there were direct links to physical outcomes being poorer, with increased rates of disease, effects on emotional and mental health. These effects leading to things such as depression, suicidal behaviors, addiction, and substance misuse.[18]

Residential Schools in Canada fall under the category of a historical trauma event as defined by three distinguishing characteristics:[19]

• The event was widespread among a specific group or population, with many group members being affected;
• The event was perpetrated by outgroup members with purposeful and often destructive intent;
• The event generated high levels of collective distress in the victimized group.

For the Indigenous population in Canada, a significant health determinant is an attendance at a Residential school. This direct effect remains significant even when considering the effects of other factors such as adversities in community, demographic characteristics, and socioeconomic status. Several generations of Indigenous people were subject to residential schools. When examining the effects if an individual had more than one generation in their family who had attended residential school the poorer the psychological health of the next generation.[20]

Forced sterilization is defined as the removal of a person's reproductive organs either through force or coercion is viewed as a human rights violation. The effect of it against Indigenous women has also identified it as violence against women and a form or racial discrimination. Canada has had a history of sterilization which has disproportionately affected Indigenous women in the North. This has lead to proposals on how healthcare can be better tailored to address the discrimination Indigenous women face when receiving healthcare can be targeted.[21]

Indigenous women have reported to having found out that their fallopian tubes had been tied without their consent or were coerced into agreeing to it by doctors who assured them it was reversible.[22] The interference in Indigenous peoples reproductive lives were justified using the ideology of Eugenics. Although The sterilization act in Canada was repealed in 1972 the sterilizations of Indigenous people have continued. While the policies of coercive sterilization on Indigenous women have been recognized as sexist, racist and imperialist the extent to which it has systematically impacted Indigenous women is not an isolated instance of abuse. It can be looked at as a part of a larger context involving the colonization and racism Indigenous people face.[23]

During the 70's the sterilization of Indigenous women was considered a widespread practice was larger than it was originally believed. The allegations that the government was aware of this but did not interfere has been documented in a few studies examining the phenomenon. It is estimated that between 1971 and 1974 that there were approximately 1200 sterilization cases, 550 of those which were conducted at "Indian Hospitals". There is no mention as to how many of these were done by force or coercion but with the consideration that the consent forms for sterilization were not translated into Indigenous languages it is unknown if a full explanation of the procedure was provided.[24]

In 2017, Saskatchewan had a case in which 60 Indigenous women sued the provincial government reporting that they had been forced to agree to sterilization before being allowed to see their newborn babies.[25] Reports are still incoming of other Indigenous women coming forward about forced sterilization leading to a proposed class-action lawsuit[26] headed by Saskatchewan-based Lawyer Alisa Lombard, a partner of Semaganis Worme Lombard.

The effect of forced sterilization has been taken into account by the TRC. Sen. Murray Sinclair, who was instrumental in the creation of the 94 calls to action,[27] listened to the concerns brought forward and stated that the responsibility of further investigation should fall upon the government.[28]

In 2007 the United Nations passed a non-legally binding resolution of The Declaration on the Rights of Indigenous people (UNDRIP).[29] Though originally Canada had voted against this they removed their status as objector in May 2016, nearly a decade after UNDRIP had been passed. In 2019, British Columbia was the first Province to implement UNDRIP into its legislation through its BC Declaration on Rights of Indigenous peoples act.[30]

Missing and Murdered Indigenous Women and Girls (MMIWG) is an ongoing issue that gained awareness through the efforts of the 2015 Truth and Reconciliation Commission of Canada (TRC) when it called for a national inquiry on Missing and Murdered Indigenous Women and Girls in Canada.[31] A 2014 report by the Royal Canadian Mounted Police, suggests that between 1980-2012, 1,017 Indigenous women were victims of homicide with 164 Indigenous women still considered missing.[32] Statistics show that Indigenous women of at least 15 years of age or older are three times more likely than non-Indigenous women to be victims of a violent crime.[33] The homicide rates of Indigenous women between 1997 and 2000 were seven times higher than non-Indigenous women.[34]

Indigenous women were first sexualized and racialized by the European settlers who came to colonize Canada, and these stereotypes have continued to affect Indigenous women today. Canadian author Janice Accose's book Iskwewak--kah' ki yaw ni wahkomakanak draws the connection of how racist and sexist depictions of Indigenous women in popular literature have contributed to violence against Indigenous women which has lead to the issue of MMIWG.[35] Notable to MMIWG is the Highway of Tears, a 725-kilometre stretch of highway 16 in British Columbia, that has been the location of many murders and disappearances beginning in 1970, disproportionately of which have been Indigenous women.[36]

On December 8, 2015, the Liberal government announced a national independent inquiry on missing and murdered Indigenous women.[37] The mandate of the inquiry was to examine and report on the systemic causes behind the violence that Indigenous women and girls experience. This would be done through an investigation of the social, economic, institutional, and cultural factors that contribute to the violence.[38] The final report was released on June 3, 2019 and states that the high level of violence against Indigenous women, girls, and 2SLGBGQQIA people is a result of human and Indigenous rights violations and abuses within Canada.[38] The final report includes testimony from more than 2,380 family members, survivors of violence, experts and knowledge keepers.[38] From these testimonies, the report has produced 231 individual calls for justices including calls to action related to social work, cultural reformation, children and youth, Canadian citizens and industries.[38]

Mass incarceration is an ongoing issue between Indigenous people and Canada's legal system. R v Gladue case is a prime example of the mass incarceration problem in Canada. This case, along with the R v Ipeelee pushed the courts towards discovering solutions to the problem. The main goals were to reduce the number of Indigenous people incarcerated, alter the justice system for future cases and hold systemic issues accountable. With the courts efforts to find solutions to achieve these goals, statistics show that the numbers still continue to drastically rise. The legal system is just as "predictable and fixed as the colonial structures that produced them."[39] as Efrat Arbel states in his essay. The issue of mass incarceration is a direct example of settler colonialism. It provides examples of how Indigenous communities are still under colonial rule from the Canadian government. Mass incarceration can often be downplayed by legal actors when they use the term "over-representation". This term contributes to the racialization of the legal system. Mass incarceration of Indigenous people comes from a variety of problems that Indigenous people face daily such as, poverty, substance abuse, lack of education and lack of employment opportunities. These problems that Indigenous people face now are direct results from settler colonialism. Statistics show people in 2017, the Indigenous population only made up 5% of the total population yet, made up 26.4% of the population in federal prisons. Between 2007 and 2016, Indigenous populations in federal prisons raised by 36%. For Indigenous women in the years 2007-2008 and 2016–2017, their population in federal prisons raised 60%. At an even more alarming rate, Indigenous women's rates increased by 109% in the years 2001-2002 and 2011–2012. Indigenous women are according to Brenda L.Gunn indigenous women are over represented in the justice system, and they also subject to high levels of abuse and violence.[40] Indigenous people often report more cases of being subjects of use of force, less likely to apply for parole and more likely to return to prison if they are granted parole. Studies show that Indigenous offenders are more often seen as high-risk and more likely to be replaced in maximum security prisons. Indigenous individuals are also less likely to receive bail and less likely to be released on parole this also means that they do not receive the same resources as parolees, which could lessen the probability of re-offending.[41] Due to their mass numbers in prisons, Indigenous people are also placed in solitary confinement more often. Statistic show there was a total of 424 offenders in solitary confinement in 2017. 151 (36.5%) of these offenders were Indigenous people. Between the years 2005–2015, the numbers increased by 31% compared to a 1.9% growth of non-Indigenous offenders. These numbers represent federal prisons, where as provincial levels and remand centres reflect the same patterns. These consequences that Indigenous people often face when dealing with Canada's legal system can be seen as inevitable consequences from settler colonialism.

As legal documents treaties outline the rights of the Indigenous groups that they apply to. Events such as the Mi'kmaq fisheries being under attack demonstrate that these rights are still contested. Regarding this event it had already been established that the Halifax treaty outlines that the right to fish is protected for the Mi'kmaq. The right was further established during the case of R v Marshall and its two resulting decisions by the Supreme Court of Canada. The first decision came that the treaties covered the right to fish and sell without regulation being imposed. After backlash from non-Indigenous people however, the second decision elaborated that regulation could be enforced in certain circumstances. Due to the language of this ruling being open to interpretation it can be considered that this is a conflict that has been brewing since the signing of the treaty.[44]

In October 2020, Mi'Kmaq fishermen were attacked in Halifax. The Globe and Mail reported that a mob of 200 people were throwing lobsters and destroyed a van that belonged to the Mi'Kmaq fishermen in a lobster storage pound. This forced the indigenous fishermen to retreat inside where thereafter the mob threw rocks at the building. In response to this situation many looked to the failures of RCMP and their inability to stop the violence. While many called for the resignation of the Chief and other members of the RCMP, Justin Trudeau said that he wanted to work with the RCMP to better their response in situations like these.[45]

Other Indigenous groups in Canada have spoken out against the racism that the Mi'kmaq are experiencing as echos of their own experiences.[46] This is referring to British Columbia in 1992 with the drafting of new fisheries sale agreements which sparked a racist reaction from the commercial fishermen. These new agreements were due to the Sparrow Decision which outlined that rights such as fishing were protected under the Constitution of Canada.

In January 2017, 34-year-old Barbara Kenter, an Indigenous woman, was struck by a trailer hitch resulting in her death five months after the incident. Brayden Bushby, aged 21, who has admitted to throwing the trailer hitch is currently on trial which began on November 2, 2020. Bushby was originally charged with second-degree murder but that was changed to manslaughter and aggravated assault. Outrage from the change in charges has sparked onto twitter under the hashtag of #justiceforbarbarakentner. Many view these events as an ongoing failure of the justice system towards Indigenous people after events such as the Shooting of Colten Boushie.[47]