June is National Indigenous History Month.
It is time to honour the history, heritage and diversity of Indigenous peoples in Canada. Part of this history is understanding the rights of Indigenous people. It is critical that we understand, acknowledge and appreciate the unvarnished account of the relationship between Indigenous people and Canada. Understanding the mistakes of the past, and the journey that still needs to be taken is essential to the foundation of a truly fair and inclusive society.
The following timeline outlines some of the key landmark decisions that have progressed the recognition of Indigenous Rights in Canada. It is not meant to be all inclusive, nor does it suggest that the journey is complete. Rather, it is meant to shed light on the nature of the relationship between Canada and Indigenous peoples.
Commercialization of First Nations Harvest
Commercialization of First Nations harvest created a highly competitive fur trade that led to wars between the First Nations. In 1701, France and the 40 First Nations around the Great Lakes basin entered into the Great Peace treaty to end the violence.
Early commercial and military alliances
Following European contact until 1763, Indigenous groups formed military and commercial (think Hudson Bay Company) alliances with groups from different European countries, including England and France.
The relationship shifts from allies to wards
After 1763 the relationship between the Indigenous peoples and the Crown changed from allies to wards. The changing relationship was driven by the influx of newcomers following the American war of Independence. There was a greater demand for land and the First Nations were no longer seen as allies but rather as obstacles to growth.
Royal Proclamation
In 1763, France ceded territories to Britain in the Treaty of Paris, and King George III of England issued a Royal Proclamation that set out a framework for the British Crown to acquire Indigenous interests in land through treaties. The Proclamation reserved to Indigenous peoples lands that had not been ceded to or purchased by the Crown, recognized that Indigenous interests in lands could only be purchased through agreements with the Crown following a public meeting involving the Indigenous community, and provided that no private person could directly acquire Indigenous interests in land.
Numbered Treaties are enforced without consultation
After 1871, Canada, which had been given administrative control of “Indian Affairs” entered into numbered treaties with different First Nations.
The Indian Act increases Government Authority
Indian Act came into force in 1876. The federal department assumed greater authority over Indians and lands reserved for Indians, managing their lands, monies and resources. What’s more, this Act introduced prohibitions on intoxicants and aimed to enhance the assimilation of Indians by obligating parents to send their children to schools. The wholescale push for assimilation included bans on Indigenous spiritual ceremonies and introducing enfranchisement in order to enjoy the rights of citizenship like voting.
Residential Schools
Residential schools were established as long ago as 1883. More than 150,000 First Nations children attended residential schools between 1883 and 1996.
Supreme Court of Canada ruling
In the Constitution Act, 1867, the federal government was given jurisdiction over “Indians” under section 91(24). In 1939, the Supreme Court of Canada held that this included Inuit (Reference as to whether “Indians” in s. 91(24) of the BNA Act includes Eskimo inhabitants of the Province of Quebec, [1939] SCR 104). However, there remained confusion over whether federal or provincial governments had responsibility to administer programs and services for persons of mixed ancestry. Until the Daniels decision of 2016, discussed below, such persons often had no recourse as both federal and provincial governments denied they had jurisdiction.
Indigenous People support in WW1 and WW2 shifts relationship with Canada
Many Indigenous people fought in both World Wars for Canada and their relationship began to shift. In 1960, First Nations were given the right to vote. Slowly Indian Agents were removed from reserves and First Nations were given greater control over their affairs as the federal government began funding First Nation political organizations thereby enabling them to renegotiate treaties and enforce their rights.
Modern Day Treaties
In the early 1970’s three court decisions had an immeasurable impact on the future of Indigenous rights. In Quebec, the Cree of Eeyou Istchee and the Inuit of Northern Quebec obtained an injunction against the Hydro Quebec project. This lead to the James Bay and Northern Quebec Agreement, the first modern day treaty.
Calder v. British Columbia
In Calder v. British Columbia, [1973] SCR 313, the Supreme Court of Canada acknowledged that Indigenous title was a legal right derived from Indigenous peoples’ historic occupation of territory.
The Constitution Act
In 1982, section 35(1) of the Constitution Act, 1982 recognized and affirmed existing Indigenous and treaty rights. Therefore, such rights can no longer be extinguished through legislation, but only by voluntary surrender to the Crown, unless there is a constitutional amendment. Also in 1982, section 25 of the Canadian Charter of Rights and Freedoms provided that the guarantee of certain rights in the Charter must not be interpreted to abrogate or derogate from any Indigenous or treaty rights or other rights or freedoms that pertain to Indigenous peoples.
Guerin v. R
In Guerin v. R, [1984] 2 SCR 335, the Supreme Court of Canada held that Indigenous title is a legal right to occupy and possess lands but that the ultimate title rests with the Crown. The Court wrote that a surrender of Indigenous title to the Crown gives rise to a fiduciary obligation, meaning that the Crown has a duty of utmost loyalty to deal with surrendered land in the best interests of the Indigenous peoples.
R. v. Van der Peet
In R. v. Van der Peet, [1996] 2 SCR 507, the Supreme Court of Canada held that, in order to be an Indigenous right, an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the group claiming the right. The Court also held that Indigenous title, which is the exclusive right to occupy and use land, is a sub-category of Indigenous rights.
Haida Nation v. British Columbia
In Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511, the Supreme Court of Canada held that the Crown is obliged under section 35(1) of the Constitution to consult with Indigenous people and, if necessary, accommodate their concerns before a final judicial determination has been made as to the existence and scope of an Indigenous right.
Manitoba Metis Federation Inc. v. Canada
In Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 SCR 623, the Supreme Court of Canada held that Canada failed to implement the Manitoba Act, 1870, in a manner consistent with the honour of the Crown by giving Metis children allotments of land.
Tsilhqot’in Nation v. British Columbia
In Tsilhqot’in Nation v. British Columbia, [2014] 2 SCR 257, the Supreme Court of Canada granted a declaration of Indigenous title to the Tsilhqot’in Nation on the basis that it had used the land regularly and exclusively. The Court held that Indigenous title is inherently collective and exists not only for the benefit of the present generation, but also for that of all future generations. This restricts the transferability of land and the uses to which land can be put.The Truth and Reconciliation Commission of Canada was a truth and reconciliation commission active in Canada from 2008 to 2015, organized by the parties of the Indian Residential Schools Settlement Agreement.
Truth and Reconciliation Commission of Canada
The Commission was officially established on June 1, 2008 and was active until 2015. Its purpose was the documenting the history and lasting impacts of the Canadian residential school system on Indigenous students and their families.
Daniels v. Canada
Daniels v Canada (Indian Affairs and Northern Development) 2016 SCC 12 is a case of the Supreme Court of Canada, ruling that Métis and non-status Indians are "Indians" for the purpose of s 91 of the Constitution Act, 1867.
National Inquiry into Missing and Murdered Indigenous Women and Girls
Published in 2019, the National Inquiry’s Final Report revealed that persistent and deliberate human and Indigenous rights violations and abuses are the root cause behind Canada’s staggering rates of violence against Indigenous women, girls and 2SLGBTQQIA people. The two volume report calls for transformative legal and social changes to resolve the crisis that has devastated Indigenous communities across the country.
Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam)
In Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2020 SCC 4, the Supreme Court of Canada held that the special nature of Indigenous title as a collective right that benefits future generations means that it is different from civil law and common law conceptions of property and must be understood with reference to Indigenous perspectives.
By highlighting the gaps in basic rights as well as the progress to remedy the situation we can appreciate the magnitude of the challenges that lead to our current environment and the work to be done.
Before European Contact
Canada was inhabited by Indigenous groups from North to South and East to West. These groups had their own traditions, culture, laws and governance structures. Trade existed between the different groups as did conflict and competition for resources and land.