Indigenous Human Rights and Modern-Day Colonialism in Canada

By: Hannah McMurrough


*image taken from Algonquin Territory website, captioned: Members of the Algonquin community hold a number of wampum belts, some of which memorialize early relations with the French and the English, near Barriere Lake, Quebec, circa 1926. COURTESY OF ALGONQUINS OF BARRIERE LAKE*


The United Nations states that human rights are inherent to all, regardless of race, sex, nationality, ethnicity, language or culture. These rights include the right to life and liberty, freedom from torture and slavery, the right to cultural freedom and education. Colonialism involved the infringement of these rights, as European settlers immigrated to indigenous lands to exert colonial control over indigenous communities, their land and resources. This was achieved through legislation, policies and programs aimed at assimilating the indigenous population and creating structures of dependence. Settler colonists sought to appropriate indigenous territory and establish new political communities through the elimination of indigenous people and their rights to sovereignty over their land.


Many argue that the colonial condition in Canada and the associated colonial powers have diminished alongside the efforts made towards settler decolonisation and the goal of reconciliation. However, these efforts have had little practical effect on progressing towards a post-colonial Canada as they are undermined by persistent colonial structures and hierarchies that remain evident in modern society.


The government has made efforts towards decolonisation and reconciliation through various legislative and policy reforms aimed at recognising inherent indigenous rights and rebuilding the government’s relationship with indigenous people. For example, section 35 of the Constitution Act 1982 states that ‘existing aboriginal and treaty rights are hereby recognised and affirmed’ which enshrines and formally recognises inherent indigenous rights. Furthermore, the governments endorsement of the United Nations Declaration on the Rights of Indigenous People (UNDRIP) demonstrates commitment to a ‘nation to nation’ approach which aims to end the denial of indigenous rights and promote empowerment of indigenous communities. Article 4 of UNDRIP specifically highlights the rights of indigenous people to self-governance and determination allowing for independence and control over their communities and land.


However, while the endorsement of UNDRIP and the recognition of indigenous rights to title of land, self-government and self-determination indicate positive steps towards the elimination of the colonial condition in Canada, these attempts to decolonise and promote reconciliation are in contradiction to the underlying existence and reaffirmation of the Doctrine of Discovery. This doctrine and the principle of terra nullius were used by non-indigenous settlers to assume sovereign control over indigenous lands which they considered to be vacant. These doctrines were interpreted to mean that where European settlers discovered lands unknown to them, they automatically gained sovereignty and property rights, even in cases where the land was already inhabited by indigenous people.


Many argue that the existence of these doctrines has not been adequately addressed by the courts, and in some cases has been reaffirmed and accepted. To accept this colonial doctrine in contemporary Canada not only disrespects the rights and dignity of indigenous people but I argue that it continues to ensure the position of the government as the dominating identity and allows for the exertion of colonial control over indigenous communities. In justifying the Crown’s sovereignty and power through legitimising this doctrine, the Court reinforces the sovereign to subject relationship and gives the dominant, colonial power the ability to decide what rights to recognise. This is contrary to the fact that indigenous rights exist inherently, meaning formal recognition should not be required in order for these rights to be respected.


Modern day colonial control presents itself in other ways too. For example, indigenous communities continue to resist modern forms of land dispossession as seen by the Algonquin people in Ottawa, who’s sacred and traditional lands were threatened by commercial development plans on territory where title was not surrendered. Members of the Algonquin group stated that they were not adequately consulted about the proposed development, yet construction began without consent and the interests and rights of the indigenous peoples were ignored. Another example is the protest against the construction of the site C hydroelectric dam in British Columbia. Construction of this dam would result in the destruction of indigenous historical and cultural sites, as well as their ability to fish safely for at least a generation. Amnesty International states that this project violates indigenous human rights as consultation was not seriously considered and the potential harm inflicted on these communities, as a result of environmental destruction, was overlooked by the government. These examples are a few out of many that represent the current situation in Canada, where indigenous rights to independent control over their territories and government are infringed as a result of land dispossession that continues through the government’s exertion of colonial control.


The colonial condition is also maintained through the lasting effects of the Indian Act 1876. This legislation was implemented as a method of assimilation that was used to deny and extinguish indigenous people, maximise enfranchisement and ensure progression towards the goal of absolute assimilation and thus the elimination of indigenous identity from society. The introduction of various assimilative policies such as residential schools, municipal governments and status qualifications resulted in the complete dependence of indigenous communities on the government as their independent political, economic and social structures were eliminated. In particular, the negative experiences of older generations that attended residential schools, who suffered physical, emotional and sexual abuse, has been linked to the higher rates of physical and mental health problems among younger indigenous generations. While these effects persist, indigenous communities experience disproportionately high levels of unemployment, poverty and physical violence compared to that of privileged non-indigenous communities. This systematic and oppressive social order maintains this dependence on the state and continues to allow the government to exert control over indigenous communities.


If these regimes of settler colonisation continue to exist in contemporary Canada, it cannot be said that colonial control has been relinquished. The presence of this colonial condition in fact perpetuates the colonial relationship between the indigenous communities and the settler states and thus empowers the settler government’s colonial control over indigenous peoples. Until these issues are addressed, the government’s implementation of policies aimed at recognising indigenous title and self-government are futile; these policies result in a ‘dualistic and dependent’ relationship that is not conducive to long term independence and self-sufficiency of indigenous communities. Effective change, and thus progress towards decolonisation and the end of colonial control, involves recognising the entrenched, psychological and generational effects of the government’s colonising actions and focusing on improving and reconnecting indigenous peoples with their history and culture.