Today we have a special guest post from Sarah York-Betram! She posted a version of this piece on her Instagram late last week, and was kind enough to transform it into a blog post.
A scholar from Treaty Six Territory, Sarah York-Bertram is a Canadian historian and PhD candidate at York University specializing in the socio-legal histories of the Canadian Prairies in the nineteenth and twentieth centuries.
In 2013, the Mikisew Cree First Nation challenged the Harper Government’s 2012 omnibus legislation on the grounds that the legislation could impact the First Nation’s constitutionally protected rights to hunt, trap, and fish in Treaty 8 territory. They argued that, as per their longstanding treaty rights, the Crown had a duty to consult them when contemplating actions or decisions that may affect their rights as Indigenous people and their treaty rights. The omnibus legislation made significant changes to the Fisheries Act, Species at Risk act, and the Navigable Waters act, reducing government oversight of lands and waters. Opposition to the omnibus legislation and the Harper government’s approach to relations with the Indigenous peoples sparked the Idle No More movement in 2012.
Initially, the federal court of Canada sided with Mikisew, ruling that the federal government should have consulted with First Nations before passing the omnibus legislation. However, the Federal Court of Appeal later ruled that the federal court did not have jurisdiction to hear the case and could only hear challenges to existing legislation, not legislation that was being developed. The Supreme Court ruled Thursday October 11, 2018 in a 7-2 decision that the Crown’s duty to consult only applies to executive actions taken by cabinet and regulators, not policymaking processes such as the making of legislation.
This ruling continues a paternalistic approach to law and governance that is not in the spirit of the nation-to-nation relationship the Liberals and Prime Minister Justin Trudeau promised Indigenous peoples. What’s more, it disregards Canada’s commitment to Truth and Reconciliation. This was an opportunity for Canada to move from lip service to concrete change, turning toward reconciliation, and making good on the agreements it has made with Indigenous peoples – agreements that allow non-Indigenous people to share the land with Indigenous peoples who are the hosts and caretakers of these lands. Instead, the federal government argued that Mikisew’s challenge would “threaten parliamentary supremacy” revealing its unwillingness to keep its promise of nation-to-nation relationships and reconciliation.
The Canadian justice system and its laws were built to disregard nation-to-nation relationships with Indigenous peoples. Through the Indian Act, Canada projected a monolithic view of Indigenous peoples that ignored their social, cultural, and linguistic diversity. It was through Canadian law and the Indian Act that diverse groups of Indigenous peoples were fashioned into “Indians.”[1] Scholars who study Canadian legal history note the significance of the Resistance trials of 1885 in defining Canada’s relationship with Indigenous peoples.
Through treaty, the Crown and Indigenous leadership agreed to a mutually beneficial nation-to-nation relationship on the Plains. It was and continues to be foundational to non-Indigenous people’s access to the lands. The Crown quickly failed to meet its obligations and withheld treaty-guaranteed rations in order to starve Indigenous people into submission (the long-term health effects of this starvation have impacted generations), limited their mobility, impeded their full participation in the economy, banned many of their cultural practices, and attempted to violently assimilate Indigenous people into British/Canadian culture. And Canadian law was a tool to enforce these violent and inequitable policies – though such practices and approaches violated the agreements made with Indigenous peoples. Canada’s approach led to years of discontent, suffering, and death for Indigenous peoples, all of which culminated into the violent uprisings of 1885.[2]
Following the uprising, the largest mass hanging in Canadian history occurred November 27, 1885 after a trial in which those charged were not given the benefit of a defence nor particularly effective translation. The hangings of eight warriors occurred one week following Louis Riel’s hanging. Children forced into Indian residential schools were made to watch the hangings of the warriors they had idolized. John A. Macdonald wanted the hangings to be a soul-crushing spectacle for Indigenous witnesses. He said that the “executions ought to convince the Red Man that the White Man governs.”
But even as Canada committed these acts in violation of treaty, many have questioned how it is that Canada could assert its legal authority in this way. Justice Rosalie Silberman Abella, who was one of the two Justices who dissented with the October 11, 2018 decision, wrote that the Crown ought to have a duty to consult Indigenous peoples when making laws that might adversely affect them since the honour of the Crown “governs the relationship between the government of Canada and Indigenous people.”
In 1929 Robert Jefferson who lived among the Indigenous communities of Battleford wondered how charges of treason and rebellion could be made against the First Nations and the Métis on the plains. “They are not subjects of the Crown, but allies, and a treaty was made with them as such.” He noted that treaties were abrogated by Canada without ever determining that Canadians were in rebellion of Indigenous authority. “There must be some way out of this difficulty, but that way will always remain to me one of the mysteries of the law,” wrote Jefferson.[3
Now here we are in 2018. The Canadian government has chosen once again to continue a paternalistic model of relating with Indigenous peoples and nations, asserting “parliamentary supremacy,” and Canada’s highest court has proven it will not be a vehicle for deeply necessary change. We know the harm the current system has caused; it is time for Canadians to listen to Indigenous peoples, honour the treaties, and turn toward concrete methods to build reconciliation on the foundations of truth that have been painstakingly and generously laid out by Indigenous peoples and through the Truth and Reconciliation Commission and Report.
Notes:
[1]Mary Ellen Turpel, “Patriarchy and Paternalism: The Legacy of the Canadian State for First Nations Women” (1993) 6 C.J.W.L., p. 178.
[2]The 1885 resistance uprisings occurred as a result of multiple justified grievances Indigenous peoples had with the colonial government, such as the widespread sexual harassment and abuse of Indigenous women by farm instructors, Indian Agents, police, and other European men, the withholding of food rations, forced migration from ancestral lands the Canadian government wished to set aside for European settlers, and the government’s failure to acknowledge and protect the rights and lands of the Métis.
[3]Robert Jefferson, Fifty Years on the Saskatchewan: Being a history of the Cree Indian domestic life and the difficulties which led to serious agitation and conflict of 1885 in the Battleford Locality, Vol 1, No. 5, (Battleford, SK: Canadian North-West Historical Society, 1929), 156.
Special thanks again to Sarah for writing this blog post! If this blog post moves you to do something, I would also highly recommend checking out our co-authored blog post, An Introduction to Learning and Teaching about Settler Colonialism. We hope you enjoyed this week’s blog post! If you did, please consider sharing it on the social media platform of your choice! And don’t forget to check back on Friday for Stephanie’s monthly look at upcoming publications. See you then!
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