• Indigenous peoples in Canada

    Indigenous peoples in Canada

    The indigenous peoples of Canada are collectively referred to as “aboriginal peoples”. Canada recognizes three groups of aboriginal peoples: First Nation, Inuit and Métis. Canada’s aboriginal peoples are challenged by the slow implementation of the UN Declaration on the Rights of Indigenous Peoples, child welfare, and violence against indigenous women and girls.

The Indigenous World 2024: Canada

In Canada, the contemporary Indigenous rights and governance framework varies across the country. The Constitution Act of 1982, as well as the Charter of Rights and Freedoms, explicitly recognize Aboriginal and Treaty rights and three groups of Aboriginal Peoples (commonly referred to as Indigenous Peoples): Indians (First Nations), Inuit, and Métis. Each Indigenous people are distinct and diverse: First Nations are governed by the 1876 Indian Act, with over 630 ‘reserves’ and more than 60 languages; Inuit live in Inuit Nunangat (Inuit homelands), spread across four regions and land claim agreements: Nunavik (northern Quebec), Nunatsiavut (northern Labrador), Nunavut and the Inuvialuit Settlement Region (the Northwest Territories); and the Métis, who emerged as a distinct Indigenous people in the historic Northwest but now encompass Manitoba, Saskatchewan and Alberta and extend into parts of Ontario, British Columbia, the Northwest Territories, and the northern United States.

Over half of these populations now reside in urban centres. First Nations, Inuit, and Métis are represented by a number of representative organizations regionally, provincially and nationally, including but not limited to, the Assembly of First Nations, the Inuit Tapiriit Kanatami, and the Métis National Council.

Although the Canadian government originally voted against the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007, it has since changed tone, being one of the first countries around the world to adopt the UNDRIP into federal law. The United Nations Declaration on the Rights of Indigenous Peoples Act was adopted into law in June 2021, acknowledging, in the preamble, that the UNDRIP provides a framework for reconciliation, justice, and peace, and denouncing the doctrines of discovery and terra nullius as “...racist, scientifically false, legally invalid, morally condemnable and socially unjust.” 2023 was an important year for implementation of the UNDRIP, as the federal government released its 2023-2028 Action Plan implementing, and ensuring federal laws are consistent with, the declaration. A similar Act, albeit two years earlier in 2019, was adopted in the province of British Columbia, with an Action Plan being released in 2022. Despite relatively strong rights protections, First Nations, Inuit, and Métis citizens, governments and organizations continue to wrestle with the historical and structural legacy of colonization, systemic discrimination, and forced assimilation, which manifests in numerous ways such as missing and murdered Indigenous women, girls, and boys; unmarked graves from Indian Residential Institutions; and unsafe drinking water.


In 2023, Canada faced: the greatest fire season on record, with over 15 million hectares burned in Quebec, British Columbia, Northwest Territories, Alberta, and Yukon; a growing cost of living crisis; and increasingly hostile federal-provincial relationships. It wasn’t all negative, however, as the first First Nations person, and second Indigenous person overall, Wab Kinew, was elected as provincial premier of Manitoba in Canada, bringing new hope for the state of provincial politics.[1] In an Indigenous context, headlines included the election of a new National Chief at the Assembly of First Nations,[2] the approval of the CAD 23 billion (approx. EUR 15.8 billion) settlement agreement for First Nations children and families who experienced racial discrimination through chronic underfunding of the child welfare,[3] and the visit of the Special Rapporteur on the rights of Indigenous Peoples, José Francisco Calí Tzay, who visited Canada from 1 to 10 March 2023.[4]

The Special Rapporteur produced a report summarizing his observations from this visit, noting the steps taken since his predecessors’ visits in 2004 and 2014. The Special Rapporteur noted numerous outstanding challenges facing Indigenous Peoples, including, for example, residential schools and the discovery of unmarked graves; the Child Welfare System; missing and murdered Indigenous women and girls; over-incarceration and access to justice; and the impact of climate change on Indigenous Peoples. He closed with a series of recommendations to the Canadian government on these challenges, calling on them to

... address, as a priority, the deep-set, systemic and structural racism affecting Indigenous Peoples and, without further delay, put into practice the calls issued by the Truth and Reconciliation Commission, the National Inquiry into Missing and Murdered Indigenous Women and Girls and other thematic commissions.[5]

A key part of this call was to “…respect their Nation-to-Nation relationships, treaties and self-government agreements and to ensure their full and equal participation in decisions that affect their rights, title and interests.”[6] These recommendations, at their core, centred the objective of reconciliation (and thus decolonization) on the land, and the reaffirmation of Indigenous Peoples’ rights to self-determination over it.

The National Action Plan

Following two years of working with First Nations, Inuit and Métis from across Canada, the Government of Canada published a National Action Plan (“Action Plan”) to implement the UNDRIP in June 2023.[7] The Action Plan, according to the government, was not intended to be comprehensive, nor restrictive, but rather an evergreen document that will continue to identify new priorities over time. It was divided into five chapters, supported by a series of Guiding Principles: shared priorities; First Nation priorities; Métis priorities; Inuit priorities; and Modern Treaty Partner Priorities. Under each chapter, proposed measures (180 in total) are grouped together into identified themes, preceded by a clarification of Canada’s priority goals.

Overall, the Action Plan works to address departmental injustices, violence, prejudice, systemic racism, and discrimination, as well as to ensure consistency with the UNDRIP. The response to the Action Plan was mixed, as many Indigenous Nations acknowledged the importance of the step but lamented the absence of clear commitments to transformative change.

One priority area, among many others, was a focus on lands, territories and resources. Broadly, this included commitments to ensure that Indigenous Peoples can exercise their inherent rights; to affirm and respect Indigenous jurisdiction over lands and resources, including through processes of harmonization; and to respect the sacred responsibility and responsibilities of Indigenous Peoples to their lands, waters, and resources. A significant commitment under this area was the government’s commitment to the repeal of the Comprehensive Land Claims Policy (CLCP). The current version of the CLCP is highly contested by First Nations because it is premised on the extinguishment of Indigenous rights. In its place, the government committed to issuing a public statement clarifying that extinguishment of Indigenous land rights is no longer a policy objective of the federal government. This statement is significant and could have serious implications for the First Nations who are currently at the negotiation table. In particular, this policy shift could enable First Nations to negotiate the recognition and implementation of their self-determination without having to accept the extinguishment of any existing rights.

Another important commitment of the Action Plan was to work with First Nations to co-develop a re-design of the Additions-to-Reserve (ATR) Policy. Through the ATR Policy, First Nations can submit proposals to add land to their reserves. By adding land to their reserves, First Nations can take control over culturally significant areas, take advantage of economic opportunities, and create space for community needs. This process is being impacted by severe delays and a massive backlog of ATR proposals.

Finally, the Action Plan also acknowledged the role of self-determination in uplifting Indigenous climate leadership, a position that has been advanced by Indigenous Peoples across the country and is the foundation of the AFN’s National Climate Strategy.

A review of consequential cases

In acknowledging the steps taken by the current government, the UN Special Rapporteur also acknowledged that:

... the most significant achievements are often acquired through court decisions or case settlement rather than implementation of governmental policies, and these advances are ultimately the result of Indigenous Peoples’ strong determination and unabated courage to defend their rights.[8]

For those Indigenous Peoples who continue to rely on the courts for recognition of their rights, they must grapple with costly and prolonged processes. In 2023, several court decisions were released that highlight some of the difficulties in establishing recognition of title through the courts.

In May 2023, in The Nuchatlaht v British Columbia, the British Columbia (BC) Supreme Court considered an Aboriginal title claim from the Nuchatlaht First Nation to an area on Nootka Island in British Columbia.[9] The court determined that the First Nation had not demonstrated adequate historical evidence showing that it occupied the claim area to a sufficient degree. In arriving at this decision, the court noted that the existing test for proof of Aboriginal title may not be well suited to Indigenous groups in coastal areas but declined to alter any aspect of the existing test.

Also in 2023, the Ontario Court of Appeal released a decision in Chippewas of Nawash Unceded First Nation v. Canada.[10] At trial, the judge determined that the Saugeen Ojibway Nation (SON) had failed to prove Aboriginal title to submerged lands in Lake Huron and Georgian Bay. In arriving at this determination, the trial judge reasoned that moving water above submerged land cannot be owned and that SON’s claim to title was inconsistent with the right of public navigation. The court deemed it unnecessary to determine whether the right of public navigation is incompatible with Aboriginal title and remitted the case to the trial judge to determine if title could be established to a more limited area than that which SON had originally claimed.

In both Nuchatlaht and Chippewas of Nawash, the First Nations’ claims to Aboriginal title were remitted to trial to determine whether title could be established in more limited areas. Taken together, these decisions highlight some of the major hurdles facing Indigenous Peoples seeking recognition of their land rights in Canadian courts. In particular, both cases demonstrated uncertainty in judicial approaches to Aboriginal title over marine areas. Moreover, these cases highlight the risk in seeking recognition of broad, territorial recognition of Aboriginal title. Magnifying the scope of this injustice is the growing academic and judicial recognition that Canada’s claim to ownership of lands outside of treaty areas is based on the mere assertion of Crown sovereignty, which is a legal fiction used to justify the theft of Indigenous lands.[11]

While First Nations experienced some setbacks in seeking to establish title over their lands through the courts in 2023, Indigenous land defenders were successful in a number of prominent cases. In July 2023, the Ontario Court of Justice assessed whether Skyler Williams, a Mohawk land defender, had acted against the public interest in his role in occupying a proposed housing development on a disputed tract of land in Caledonia, Ontario.[12] The judge relied in part on Haudenosaunee law to determine that Williams was acting in the best interest of the Haudenosaunee. The judge granted Williams an absolute discharge. Similarly, the BC Supreme Court considered Wet’suwet’en law in its acquittal of Sabina Dennis, a Dakelh land defender charged with criminal contempt for her role in the protest actions against the Coastal Gaslink Pipeline.[13] While these decisions from lower courts do not bind other jurisdictions in Canada, they may represent a growing willingness of courts to recognize and give effect to Indigenous legal orders. As Indigenous Peoples continue to directly assert and enforce their land rights, recognition of Indigenous laws may continue to provide an important legal defence.

Indigenous Peoples affirming rights to lands, waters, ice and air

In the face of clear challenges within colonial courts, as well as clear delays in transformative policy decisions by settler governments at the federal, provincial, and territorial level, Indigenous Peoples took matters into their own hands and directly asserted their rights to the land and water. Skyler Williams, described above, was a key member of the land defenders at 1492 Land Back Lane in Caledonia. The land defenders at Wet’suwet’en continue to fight against the construction of the Coastal Gaslink Pipeline in BC, and were successful in pushing the Royal Canadian Mounted Police (RCMP) to open an investigation into the actions of their Community-Industry Response Group, the face of the RCMP that violently removed land defenders in 2021. These examples, including the Nuluujaat land guardians in Nunavut, focus not only on returning land under Indigenous authority and jurisdiction but also the concept of Land Back. Land Back, as a concept and philosophy, continues to grow in prominence to reassert the role of Indigenous jurisdiction on lands and waters. A concrete form of Land Back that continues to develop is that of Indigenous Protected and Conserved Areas (IPCAs) and Indigenous Guardian programs. IPCAs continue to grow across the country, such as the Simpcw First Nation’s declaration of the Raush River watershed, due to the ongoing support from the federal government, committing more than CAD 1.2 billion to Indigenous-led conservation since 2018. Despite these supports, challenges with IPCAs remain, such as with resource extraction, laws and legislation, financing, relationships and capacity, and jurisdiction and governance.[14]

Violence against the land and water is violence against Indigenous women and children

There is a deep connection between violence against the land and water, and violence against Indigenous women.[15] The crisis facing Missing and Murdered Indigenous Women and Girls (MMIWG) continued in 2023. Early in the year, a Roundtable of Indigenous leaders and representatives and federal and provincial/territorial ministers took place. The roundtable was the first national dialogue on MMIWG and 2SLGBTQI+ people, with a focus on how to improve cross jurisdictional collaboration, discuss areas of success, and implement the calls for justice.[16] Several months later, a Federal Pathway Annual Progress Report was released.[17] The work is not all positive, however, as an analysis from the Canadian Broadcasting Corporation (CBC) showed that only two out of the 231 calls for justice have been completed and more than half have not even been started.[18] A perfect example of this is the search for the remains of two First Nations women in a Winnipeg-era landfill, which generated significant controversy when a former Premier used racist campaign messages to justify not spending money on the search.[19]

In 2023, Indigenous Peoples continued to reckon with the existence, and growing number, of unmarked grave sites on the grounds of former Residential Schools. An independent Special Interlocutor, Kimberley Murray, was named in June 2022 and produced her Interim Report, Sacred Responsibility: Searching for the Missing Children and Unmarked Burials, in June 2023 in anticipation of a final report in June 2024. The interim report described her findings from four national gatherings in Edmonton, Winnipeg, Vancouver, and Toronto.[20] During this time, another five First Nations from across the country, Star Blanket Cree Nations, Wauzhushk Onigum Nation, Tseshaht First Nations, Saddle Lake Cree Nation, and the Shíshálh Nation, found anomalies consistent with possible unmarked burials.

Path forward

The Government of Canada’s legal obligation to implement the UNDRIP has generated cautious optimism in relation to Indigenous land rights in 2024 and beyond. The over 180 commitments through the Action Plan, including the withdrawal of the CLCP, provide Canada with the opportunity to transform the relationship between Indigenous Peoples and the Crown. The shift away from an extinguishment of rights approach creates a unique opportunity, with a chance to work with Indigenous Peoples to develop fair, open, and transparent mechanisms to negotiate the recognition of Indigenous land rights. Additionally, Canada’s commitment to re-designing the ATR Policy could hasten the return of lands to First Nations in the form of expanded reserves. With adequate resources and political willpower, these commitments could have significant, positive impacts on Indigenous land rights in Canada.

While these reforms are ongoing, Indigenous Peoples will continue to assert their land rights through the courts, direct action, and in the establishment of unique land management arrangements, such as IPCAs. These efforts may need to be amplified as Indigenous Peoples ready themselves for the potential return of a conservative government.

 

 

Graeme Reed is an Anishinaabe from the Great Lakes (Wiikwemkoong Unceded Territory) with mixed ancestry from England, Scotland, and Germany. He works at the Assembly of First Nations leading their involvement in federal and international climate policy, including as North American Indigenous representative of the Facilitative Working Group of the UNFCCC’s Local Communities and Indigenous Peoples’ Platform, and former co-Chair of the International Indigenous Peoples’ Forum on Climate Change. He holds a PhD from the University of Guelph.

Jesse Donovan is a Red River Métis. He works at the Assembly of First Nations as the Associate Director of the Lands Sector. His work focuses on the restitution of lands, territories and resources to First Nations. He holds a law degree from the University of Saskatchewan.

 

This article is part of the 38th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is of an Indigenous man harvesting quinoa in Sunimarka, Peru. This photo was taken by Pablo Lasansky, and is the cover of The Indigenous World 2024 where this article is featured. Find The Indigenous World 2024 in full here

 

Notes and references

[1] Hoye, Bryce. “Solid NDP win cements Kinew as 1st First Nations premier in Manitoba history.” CBC News, 4 October 2023. Accessed 12 January 2024. https://www.cbc.ca/news/canada/manitoba/2023-manitoba-election-results-1.6985468

[2] Forester, Brett. “Cindy Woodhouse wins election for Assembly of First Nations national chief.” CBC News, 8 December 2023. Accessed on 12 January 2024. https://www.cbc.ca/news/indigenous/afn-national-chief-winner-1.7051907

[3] Major, Darren & Stefanovich Olivia. “Judge approves historic $23B First Nations child welfare compensation agreement.” CBC News, 26 October 2023. Accessed on 12 January 2024. https://www.cbc.ca/news/politics/judge-approves-23-billion-first-nations-child-welfare-agreement-1.7006351

[4] Calí Tzay, José Francisco. “Visit to Canada Report of the Special Rapporteur on the rights of Indigenous Peoples,

José Francisco Calí Tzay.” United Nations, 2023. Accessed 12 January 2024. https://documents-dds-ny.un.org/doc/UNDOC/GEN/G23/139/12/PDF/G2313912.pdf?OpenElement

[5] Ibid, p. 17

[6] Ibid

[7] “The Action Plan.” United Nations Declaration on the Rights of Indigenous Peoples Act - Action Plan 2023-2028, Department of Justice, 2023. Accessed 12 January 2024. https://www.justice.gc.ca/eng/declaration/ap-pa/index.html..

[8] Calí Tzay, p. 17

[9]The Nuchatlaht v. British Columbia, 2023 BCSC 804 [Nuchatlaht].

[10] Chippewas of Nawash Unceded First Nation v. Canada (Attorney General), 2023 ONCA 565 [Chippewas of Nawash].

[11] Thomas and Saik’uz First Nation v. Rio Tinto Alcan Inc., 2022 BCSC 15 at para 198.

[12] Williams, Kierstin. “Haudenosaunee law used for ruling on Land Back Lane defender.” APTN News, 12 July 2023. Accessed 12 January 2024. https://www.aptnnews.ca/featured/judge-relies-on-haudenosaunee-law-in-court-decision-for-1492-land-back-lane-defender/.

[13] McKay, Jackie. “Woman arrested during Wet'suwet'en pipeline blockade found not guilty.” CBC, 29 November 2023. Accessed 12 January 2024.https://www.cbc.ca/news/indigenous/wet-suwet-en-coastal-gaslink-court-1.7044494.

[14] For more, refer to Townsend, J., & Roth, R. Indigenous and Decolonial Futures: Indigenous Protected and Conserved Areas as Potential Pathways of Reconciliation. Frontiers in Human Dynamics, 5, 1286970.

[15] For more information, see the work of the Women’s Earth Alliance and Native Youth Sexual Health Network (2016) found here: http://landbodydefense.org/uploads/files/VLVBReportToolkit2016.pdf?

[16] For more about the National Roundtable, see here: Report of the Roundtable on Missing and Murdered Indigenous Women, Girls and 2SLGBTQI+ People (rcaanc-cirnac.gc.ca)

[17] Government of Canada. “2022-23 Federal Pathway Annual Progress Report.” https://www.rcaanc-cirnac.gc.ca/eng/1685130575787/1685130639029

[18] For more about CBC’s analysis, see here: A report card on the MMIWG inquiry's calls for justice (cbc.ca)

[19] Petz, Sarah. “Chiefs, families push for search for remains at Winnipeg landfill that could take years, cost up to $184M.” CBC News, 12 May 2023. Accessed 12 January 2024. https://www.cbc.ca/news/canada/manitoba/landfill-feasibility-study-results-manitoba-1.6840411.

[20] “Sacred Responsibility: Searching for the Missing Children and Unmarked Burials.” Office of the Independent Special Interlocutor, June 2023. Accessed 12 January 2024. https://osi-bis.ca/wp-content/uploads/2023/07/Interim-Report_ENG_WEB_July11.pdf

Tags: Land rights, Women, Climate, Indigenous Peoples Human Rights Defenders, Conservation

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