chapter nine
Conciliation and Moves to Responsibility
Reconciliation sounds nice when discussed in the abstract. But reconciliation, practiced in context, requires that Indigenous peoples reconcile themselves to colonialism. This is hardly a cause for celebration.
– John Borrows, “Canada’s Colonial Constitution” (2017)1
Nation to nation means acknowledging the truth of the nations. … It means funding and supporting models of Indigenous governance most damaged by colonization. Nation to nation to me means ensuring that those warrior societies, women societies, two-spirited societies become an active, elevated, treasured and funded portion of Indigenous governance again.
– Tracey Lindberg, “Reconciliation before Reconciliation” (2017)2
What does the future of conciliation look like, especially if we recognize genocide against Indigenous peoples by the Canadian settler state? It is important to acknowledge that many of the institutions, patterns, and processes that led to genocide in the first place continue to inform government policies towards Indigenous peoples. Settler colonialism is still marked by structural violence and the attrition of Indigenous rights. The term reconciliation is contested, sometimes critiqued, on the basis that there never was an original “golden era” of conciliation between Indigenous peoples and settlers. Reconciliation may be problematic if we see it only as being about relationships between the colonized and the colonizers. This is only one of many types of relationship, and it might be better seen as conciliation, creating positive relationships that have not existed before, relationships whose contours are difficult to trace because they will evolve and change with time. If we are to move to responsibility as settlers, genocide recognition may function as one means (alongside others and especially the return of lands) of better situating and contextualizing the role of the settler state, its multiple institutions, and its civil societies in the lives of Indigenous peoples.
Before exploring options for the future, those of us who are settlers can take a few steps back and understand that Indigenous peoples did not choose to be colonized. Whatever European-style social contract theory animated the creation of Canada, it did not emerge from Indigenous world views, and it sidelined Indigenous consent. Nor did Indigenous peoples choose to have the British and French create the world’s second-largest country at their expense. Indigenous peoples did not ask for the residential school system as it developed, the Indian Act, starvation, the massacre of the buffalo, the outlawing of Indigenous governments and spiritual traditions, forced sterilization, or the creation of the reserve system.
As we contemplate conciliation, those of us who are settlers will need to be open to the full range of potential political, economic, and social changes that may result from Indigenous resurgence. This includes looking at ways to roll back the power of the settler state to ensure that Indigenous rights are fully respected. Those of us who study political systems and how they function will need to better come to terms with how Canadian sovereignty can be unpacked; rendered more porous, more flexible, decentralized, more reflective of Indigenous ways of governance. We also need to be clear that conciliation must never be about coercing anyone into assimilating into the settler state.
Rather, conciliation efforts should support the Indigenous resistance and resurgence occurring across Turtle Island. The NIMMIWG’s Interim Report, drafted primarily by Aimée Craft and Paulette Regan, defines Indigenous resistance as encompassing activities and strategies that function to “promote decolonization, Indigenous ways of life, values, knowledge, and broader political goals.”3 Jeff Corntassel, in turn, defines resurgence as “struggling to reclaim and regenerate one’s relational, place-based existence by challenging the ongoing, destructive forces of colonization.” This can include, but is not limited to, ceremonies and other methods by which Indigenous peoples engage with the natural world, with which we are interdependent.4
In this closing chapter, I consider several dimensions of conciliation and reconciliation. Some aspects may not initially involve building relations between Indigenous peoples and settlers. Reflecting the work of some Indigenous thinkers, reconciliation has sometimes entailed Indigenous peoples reconciling with themselves, their communities, and their territories and with the treaties they have formed over millennia with the land, plants, animals, waters – everything around them. Tracey Lindberg has thoughtfully called this “reconciliation before reconciliation.” This has sometimes included Indigenous peoples reaffirming treaties with other Indigenous peoples on Turtle Island, with other Indigenous nations, or states, and invigorating forms of diplomacy suppressed under the Indian Act. Indigenous people individually have sometimes reconciled with themselves, as part of their healing journeys, and with their families and communities.5 Indigenous peoples have and will continue to articulate what can and should be done. Those of us who are settlers would do best to listen and follow their lead.
Reconciliation may also involve those of us who are settlers reconciling with ourselves, documenting the crimes perpetrated by the state and by other settlers against Indigenous peoples. This should include critically engaging with the TRC’s ninety-four calls to action and balancing our consumption of mainstream settler–dominated media with Indigenous media and the growing number of publications, blogs, podcasts, and public events on Indigenous issues. It may involve critically interrogating why settlers came to this land in the first place, under what conditions, and what we, our parents, grandparents, or ancestors hoped to achieve.
Conciliation (minus the re) may involve renaming schools, public buildings, roads, parks, rivers, and towns, changing coinage and other aspects of what has become normalized as settler identity. More important might be ensuring that Indigenous leaders and historical figures are prominently commemorated. Conciliation may involve European settlers and settlers of racialized origin coming together to sort out what type of society our side of the treaty relationship should become. Fundamentally, settlers may work to roll back the state over the lives of Indigenous peoples. Following Craft and Regan, we can understand colonialism as “the attempted or actual imposition of policies, laws, mores, economies, cultures or systems, and institutions put in place by settler governments to support and continue the occupation of Indigenous territories, the subjugation of Indigenous Nations, and the resulting internalized and externalized thought patterns that support this occupation and subjugation.” Rolling back involves implementing processes that seek to undo colonialism, and it may be seen as synonymous with the early stages of decolonization, “re-establishing strong contemporary Indigenous Nations and institutions based on traditional values, philosophies, and knowledge systems.”6
Conciliation between Indigenous peoples and settlers may develop from these processes, and we may evolve relations demarcating some ways that we work together and some ways that we respectfully do not – to honour each other’s spaces, places, and sovereignties. This may take generations to achieve, but it is crucial to begin the process now.
Closing Gaps and Conciliation
Closing economic, education, health, and other gaps is an important part of any conciliation process – first, because Indigenous peoples deserve dignity and equality as individuals and as communities. Second, gap-closing may help rebuild the self-determining capacities of Indigenous peoples as nations and political actors so that they can regain what the state sought to dismantle by force, coercion, and genocide. Currently, poverty affects half of First Nations children, while some 130,000 First Nations people need new houses. Our settler state imprisons Indigenous peoples at a rate grotesquely out of proportion to their overall share of the population. Being Indigenous means that you are ten times more likely to be in jail, to have longer sentences, to be in higher-security installations, to be segregated and isolated, and to self-harm. Overall, the life expectancy of Indigenous peoples is considerably lower than that of settlers, as are household incomes, levels of Western education, funding for education, and access to health care. The 2016 census indicates that inadequate housing and other problems on reserves have not improved much, despite a change of government and a myriad of optimistic promises.
Few people would deny that a crisis exists, but “how far” conciliation should go is contested. A June 2016 Environics survey asked settler Canadians what reconciliation meant to them, to which most respondents answered, “closing gaps.” “Equality remains a dominant theme,” Environics concluded, which it broke down into support for “mutual respect and living together in harmony,” with respondents viewing reconciliation as “fair policies” and a “level playing field.” Key priorities included ending discrimination, increasing funding for on-reserve housing and schools, safe drinking water, reviving Indigenous languages, and a mandatory curriculum describing Indigenous culture and history.7 These are important issues that need to be addressed right now.
Yet this is only part of the process – most of the above understandings of reconciliation involve the settler state and its institutions ceding forms of “soft” Indigenous rights, to use Sheryl Lightfoot’s terminology. Such rights are soft because they can act to redeem the state and legitimate its ongoing control over Indigenous peoples. These policies can be fundamentally assimilative, changing the balance of who gets what, but they may not alter the system of distribution or the philosophy and institutional structures behind it. Indeed, soft rights may be an invitation to get settler colonialism right instead of ending it.8
“Hard rights,” exemplified by Indigenous self-determination and the return of lands and waters, are less commensurable with the current structures of the settler state, and they remove settlers’ ability to exercise “compassion” and paternalism. Instead, hard rights focus on the practice of Indigenous rights and the shifting of the power balance. They potentially question the territorial sovereignty of the settler state. This process reflects how the treaties were originally conceived by their Indigenous signatories – not as surrenders of sovereignty and not as the domestication of their national rights, but as agreements made between legitimate governments representing different sovereign peoples.9
Indigenous Lands, Indigenous Law, and Self-Determination
Indigenous-settler conciliation is unlikely to succeed unless the state is able to roll back its illegitimate power over Indigenous peoples. Many Indigenous peoples articulate that this can happen only when Indigenous lands are returned in such a way that First Nations have a sufficient base from which to practise viable self-determination on their own terms. Kanien’kehá:ka Elder Ellen Gabriel observes, “Land dispossession remains a key issue as it disrupts the relationship we have with Mother Earth and all our relations.” She continues, “The pillars of our identity – our languages, customs, health, ceremonies, and traditional forms of governance – are all inter-related and interdependent upon the health of our environment.”10 Indigenous peoples, Audra Simpson concludes, are best understood as “nationals with sovereign authority over their lives and over their membership and living within their own space.”11 As Simpson articulates, Haudenosaunee have long practised the right of refusal, refusing to recognize that the settler state has legitimate control over their lives as nations. They therefore use “every opportunity to remind each other, and especially non-native people, that this is our land, that there are other political orders and possibilities.”12
Leanne Simpson (Michi Saagiig Nishnaabeg) and Glen Coulthard (Yellowknives Dené) have documented how the settler state’s relationships with Indigenous peoples have been structured “primarily through the dispossession of Indigenous bodies from Indigenous lands and by impeding and systemically regulating the generative relationships and practices that create and maintain Indigenous nationhoods, political practices, sovereignties, and solidarities.”13 A key aspect of resurgence is “grounded normativity,” which Coulthard defines as “the modalities of Indigenous land-connected practices and longstanding experiential knowledge that inform and structure our ethical engagements with the world and our relationships with human and nonhuman others over time.” How can we move forward? Coulthard puts it: “Land has been stolen, and significant amounts of it must be returned. Power and authority have been unjustly appropriated, and much of it will have to be reinstated.”14 This builds on earlier work by Kiera Ladner and Sakej Henderson, who first developed the concept.
Almost 90 per cent of Canada’s territory is Crown land, divided between the federal and provincial governments. Overall, reserves comprise a meagre 0.2 per cent of the country’s land mass, and while more government funding for services will help in the short term, ultimately the state must give back land. The late Arthur Manuel (of the Ktunaxa and Secwepemc Nations) articulated a vision of how Indigenous self-determination might look.
These land-bases need to be large enough to protect our languages, cultures, laws and economies. … That fundamental increase must be made to accommodate Aboriginal and treaty rights to land. These larger land-bases will ultimately be part of Canada’s economy. It will provide Indigenous Peoples with the right to make and influence economic development choices because of our increased governance over our larger land base.15
Manuel is writing here about Crown-held territory located adjacent to the reserves, or “treaty lands,” which Indigenous signatories supposedly “surrendered” in written treaties (where they existed), but which were to be available for traditional activities, such as harvesting, fishing, hunting, and ceremonies. Such rights have been reduced by provincial governments, or the “provincial Crown,” which has been delegated power by the federal government to “take up” Indigenous lands for mining, logging, pipelines, and other extractive and industrial activity.16 This was often done without the consent of First Nations, and sometimes with their active resistance. Many of the creative movements for change have emerged from Indigenous protection of the lands and waters, such as Idle No More, the protectors at Standing Rock, and the Secwepemc Women’s Warrior Society, whose Tiny House Warriors movement is blocking the Trans Mountain Pipeline.
Oral histories of the treaties help clarify that Indigenous nations never surrendered their lands, and they had no conception of absolute ownership in the ways understood by British private property norms and laws. Gaining access and control over traditional lands can be a lengthy and expensive process. Successive federal and provincial governments have impoverished some First Nations by holding up land claims in lengthy court cases. Settlements like that of the Nisga’a in 1998 provided them with 8 per cent of the traditional lands they claimed, but the settlement, like later agreements, featured an “extinguishment clause,” whereby the parties agreed that this was a “full and final settlement in respect of Aboriginal rights, including Aboriginal title.”17 In June 2018, other nations such as the Lheidli T’enneh voted against a settlement that would have provided them with only 4,330 hectares, a tiny fraction of the over 15,000 square kilometres of territory that comprises their traditional lands. This can hardly be considered a viable settlement.
Negotiation processes are expensive for First Nations because they often have to borrow money from the federal government to negotiate their claims, and this can put them into unsustainable debt. This process is expensive for the settler governments too. In fighting the Tsilhqot’in case, which concluded in 2014, the federal government spent $9 million and eventually lost. Every year, on average, INAC spends over $30 million on litigation services, from a low of $26.5 million in 2007–08 to a high of $36.8 million in 2011–12.18
This raises the irony, noted by Ellen Gabriel, that while Justin Trudeau promotes reconciliation in public, “his government has spent more than $700,000 in legal fees fighting a Canadian Human Rights Tribunal order insisting that they stop discriminating against Indigenous children in provision of healthcare.”19 She questions what Indigenous rights mean in the context of widespread settler-government approval for industrial projects on Indigenous territories without Indigenous consent. Indigenous resurgence takes place against the backdrop of some of the most environmentally destructive activities in modern history. Take, for example, the tar sands of northern Alberta, where some 1.2 trillion litres of toxic waste cover over 200 square kilometres. The estimated clean-up costs are over $50 billion and rising, even as Liberal and NDP governments continue to endorse these destructive extraction practices.20
Canadian settler courts were not designed to act as bridges or mediators between European and Indigenous legal and governance systems, and they routinely interpret treaties as they would domestic contracts. What has not been undertaken is a systematized process of obtaining sufficient information to understand how much land, and what land, should be set aside to guarantee Indigenous rights. Any such process would involve negotiation and partnership with Indigenous nations.21 It would also need to reflect the fact that Indigenous populations are some of the fastest growing in Canada and that, thus, the current needs of a community now may be only a fraction of what will be required in the future.
The TRC identified revitalizing Indigenous forms of law as central to any self-determining practices and, hence, any viable form of conciliation. It has promoted the repudiation of the doctrine of discovery and the incorporation of the UNDRIP into domestic law. It has recommended full conciliation of Crown and Indigenous legal orders to create a system in which both are full partners, “including the recognition and integration of Indigenous laws and legal traditions in negotiation and implementation processes involving Treaties, land claims, and other constructive agreements.”22 Indigenous laws and protocols would confirm the resurgence of Indigenous communities as self-determining and may also rectify the power imbalance, thereby creating a more partnership-oriented ethos.
As law professor Val Napoleon (Saulteau First Nation) observes, in most Indigenous nations’ legal systems, authority has tended to be decentralized, “operating through horizontal (from the bottom-up) public legal institutions. In each Indigenous society, citizens organized in various ways were, and are, responsible for the maintenance of their legal order.” She continues that law for Indigenous peoples is something they do, that is practised on a regular basis: “Indigenous peoples apply law to manage all aspects of political, economic, and social life including harvesting fish and game, accessing and distributing resources, managing lands and waters.”23 The challenge for settlers will be not only accepting but also helping to roll back the power of the settler state so that Indigenous peoples have more unencumbered space to exercise self-determination and practise their laws and constitutional orders in ways that work for them.
Relationships, Responsibilities, and Conciliation
Part of any conciliation process, especially after genocide and its continuing effects, is understanding the central importance of treaties, and not only those between Indigenous peoples and the Crown. In a powerful analysis, Heidi Kiiwetinepinesiik Stark (Turtle Mountain Ojibwe) articulates how treaties involved bringing the newcomers into an already existing web of relationships with all creation, those “pre-existing relationships and responsibilities across Anishinaabe aki (the Earth) that were impacted by these agreements.” As she explains,
We spoke not only for the land, but also for the newcomers to this land. We vouched for these newcomers. In doing so we became responsible for Americans and Canadians, and how they would relate to aki. We brought them into our long-standing relationships with aki and thus took on responsibility for how they would relate to all of creation.24
In consonance with this view, Coulthard is clear that the Indigenous relationship to land is not exclusionary. It is rather “a relationship based on the obligations we have to other people and the other-than-human relations that constitute the land itself.”25 Reconciliation for Indigenous peoples, viewed through this lens, might be seen as a reconnection to land, spirit, and other connections that the settler state has sought to sever. Many other issues regarding reconciliation flow from a return of land. But important in any Indigenous-settler conciliation process is the guarantee that if we cannot live together well, Indigenous peoples have the option of living well apart from the settler state on large, viable territories where they can exercise their right to self-determine their own futures. Otherwise, Indigenous peoples will always be dependent on settler goodwill, which varies considerably with the ideological seasons, from forms of polite paternalism to overt racism. Both are sometimes evident in the same government.
Indigenous Peoples and Settler Democracy
Historically, enfranchisement was more a punishment, a means of disempowering Indigenous leaders, than it was a privilege, and low Indigenous voter turnouts in elections stem, in part, from a desire to remain loyal to the treaties, which affirm the right to self-government. In 1960, John Diefenbaker’s Progressive Conservative government unilaterally decided that Indigenous peoples could now be citizens and retain their Indian status. This decision was not exactly generous, as it perpetuated the fiction that Indigenous peoples had consented to both Canadian citizenship and Canada’s sovereignty. It was made by the settler state at the same time that it was seeking to prevent Indigenous peoples from claiming rights at the UN level.26 In the run-up to the patriation of the Constitution in 1982, the National Indian Brotherhood lobbied British MPs to block Pierre Trudeau’s constitutional proposals. Legal action took place during this time, leading to the British Court of Appeal decision that, in 1931 (under the Statute of Westminster), the Crown had been effectively “split.” Thereafter, the Dominion of Canada had assumed the role of the Crown in all matters taking place on Canadian territory, with the British Crown washing its hands of any responsibility.27
With a recent history of Indigenous federal cabinet ministers; MPs across the political spectrum; and Wab Kinew as leader of the NDP in Manitoba, it looked for a time as if Canada might be slowly changing. Indigenous peoples were achieving better representation within settler institutions. While this was a positive development, some have highlighted the potential for “internal exclusion,” whereby Indigenous peoples find that their politics, laws, and histories are not taken seriously on their own terms, but are evaluated and judged through a settler lens. Conflicting norms and world views can create major difficulties for Indigenous peoples trying to navigate settler bureaucracies and political systems.28 Conflicting norms and values were in evidence when former Minister of Justice and Attorney General Jody Wilson-Raybould resigned from the Liberal cabinet over prime ministerial pressure to back off on criminally prosecuting the multinational company SNC-Lavalin. In February 2019 during testimony to the parliamentary justice committee, she articulated that as a Kwakwaka’wakw leader and woman: “I come from a long line of matriarchs and I am a truth teller in accordance with the laws and traditions of our Big House.”29 In a sense, her ethics were incompatible with the way the Trudeau cabinet governed. Jane Philpott also resigned from cabinet soon after for similar reasons.
As we have seen, pro-Indigenous promises and rhetoric may be popular during election campaigns, but they are easily scaled back once a government secures power. The Trudeau Liberals present a rather mixed bag of promises and delivery. They promised to implement UNDRIP, yet took considerable time before they supported Romeo Saganash’s Bill C-262, designed to incorporate the declaration into federal legislation. While promising to promote environmental concerns, the government’s purchase of the Trans Mountain Pipeline from Kinder Morgan and its crackdown on land protectors looked hypocritical. It appeared equally hypocritical to promise electoral reform that might have resulted in better representation for Indigenous peoples in Parliament, then marshal weak excuses to abandon the process.
At yet another level, the Liberal government initiated a dizzying array of bills, what some have described as the busiest Indigenous legislative agenda in a century. Recently, the government established some sixty confidential “rights and recognition tables” – detailed consultations and negotiations with over three hundred First Nations communities across the country as well as policy meetings with Indigenous academics and organizations. While the Indian Act may be on the way out sometime after the 2019 federal election, it is not clear that its replacement(s) will offer the hard rights for which activists and leaders have been fighting for decades. There seems to be little discussion of expanding reserves to include the larger treaty lands discussed earlier in this chapter. Nor is there much discussion of recognizing Indigenous political authority to block unwanted pipelines, forestry, tar sands, or other forms of industrial development on traditional lands. Much of the focus seems to be on the delivery of federally funded services by First Nations governments, which may not have much of a say in the design and implementation of the policies themselves. While the end result may be Indigenous governments with more power than they currently have, and better funding, they may only gain powers similar to municipalities, especially if the provinces do not relinquish any of their legislative control.30
In 2017, the government released ten principles on its relationship with Indigenous peoples. They make clear that the treaties and nation-to-nation relationships are to be considered domestic relationships with no international dimensions. For example, Principle 4 states that Indigenous self-government is to be conceived as “part of Canada’s evolving system of cooperative federalism and distinct orders of government.” Decision-making and governance are to be focused on “our shared home.” The other “orders of government” with which First Nations are to develop relations are all within the hard container of state sovereignty.31
There are certainly many unanswered questions about Liberal policies at the time of writing: What sort of political power will First Nations government gain through this process? Is the federal government willing to negotiate scaling back some provincial powers over Indigenous issues and granting more land, resources, and decision-making to First Nations governments? Will Indigenous land bases expand, together with control over resources and development, if reserves amalgamate with one another or reconstitute to form larger entities? Will First Nations be able to determine who is and who is not a member? These and many other issues remain to be negotiated (or taken off the table, as the case may be).32 While the Liberals have been criticized for their policies, it is unlikely that the Conservatives would promote a more progressive agenda.
The Return of Complex Sovereignties
Some Indigenous nations are in the process of articulating how their own self-determining capacities can be achieved. This will put some pressure on the settler state. Any viable process of conciliation that fundamentally alters the current power dynamic may result in more complex, overlapping, shared forms of sovereignty, and this may result in what Audra Simpson has described as “sovereignty within multiple sovereignties.”33 Change will mean moving well beyond the Indian Act–based system of over six hundred bands with elected chiefs. But it may also involve changes in provincial territorial organizations. Arthur Manuel was particularly critical of some Indigenous leaders for relying too heavily on settler governments for their power and funding and thus not being fully accountable to the people they are supposed to be serving.34
As mentioned in the introduction to this book, RCAP identified between sixty and eighty Indigenous nations that might viably exercise political rights to self-determination if smaller reserves and bands were strategically amalgamated. The logistics of these arrangements would not be for settlers to determine, and RCAP recommended that each band hold a referendum to determine what its members wished to do. Questions of status, group membership, and belonging may also flow from a renewed sense of Indigenous nationhood. At the time of writing, the Liberal government is discussing devolving some federal services to the reserve level, “scaling up” some Indigenous governments, and making other changes. Aspects of these processes are open to public scrutiny; other aspects are lacking in transparency. Negotiations, however, do not seem to include increasing the amount of land for these larger national units, and while some First Nations may wish to amalgamate their reserves with others, others may choose a different path.
Certainly, Indigenous peoples maintained their own sovereign governments for thousands of years, and many considered treaties to be international rather than domestic agreements. Nations engaged in complex trade and military alliances, and they maintained diplomatic protocols and practices over millennia that involved exchanging gifts, holding ceremonies, making treaties, and creating records of diplomatic relationships, many of which are with us still.35 Contrary to these ancient governance systems, the Westphalian state system is relatively new: it came fully into existence only in the mid-twentieth century; many countries were not formally decolonized until the 1960s, and settler states are still not decolonized. The notion of what states are and how they derive their legitimacy has changed dramatically over the centuries. If we accept, as does Thomas Biersteker, that “concepts of state, sovereignty, and territory are each socially constructed,” we create further space for bringing about change.36
That change may consist of a return to complex forms of sovereignty, types of Indigenous sovereignty that may move within and outside and between the borders of the Canadian state. If we see the state as a container for multiple forms of sovereignty, that container does not have to be rigid and closed off from other forms. Layers of settler government do not have to exercise forms of absolute control over the territory within that container. Conciliation may involve balancing different political orders, with Indigenous nations exercising the right to use Indigenous passports, such as those used by Haudenosaunee and Haida Gwaii citizens. In time, Indigenous nations may choose to hold dual citizenship with Canada, or hold First Nations citizenship only, perhaps affirmed by Canada through a renewed interpretation of treaties and other international agreements. Indigenous peoples may sign treaties with other Indigenous nations on Turtle Island, outside it, straddling it, or with other countries or entities. An example is the 2014 Buffalo Treaty, which recognizes rights for the buffalo as a wild and free-ranging animal and as a brother, and it pledges to “provide a safe space and environment across our historic homelands, on both sides of the United States and the Canadian border.”37
Another example is the multinational protest at Standing Rock, which brought together Indigenous peoples from many nations and settlers to fight for Indigenous land against the Dakota Access Pipeline. Protests took place at the Sacred Stone Camp and around the United States, including a national day of action, with peaceful protests in a number of American cities. Indigenous peoples are also practising their right to self-determination in other ways, sometimes at the bargaining table. A more complex understanding of sovereignty might facilitate enhanced international standing for Indigenous nations, enabling them to individually or collectively avail themselves of international legal instruments through the UN system or other fora. As a result, Indigenous nations could represent themselves, either collectively or individually, in new or reformed international bodies and seek action against states (including their own) that have or are continuing to violate their rights and interests.
Genocide Recognition
Much of this book concerns genocide, and one of my goals is to articulate a case for recognizing that genocide occurred (at least) in the Indian residential schools through (at least) the violation of Article 2(e) of the UN Genocide Convention. This is with the obvious caveats that any crimes occurring before 1948 would not, in a strictly legal sense, be interpreted as genocide by a court of law, and that Article 2(e) does not currently form part of Canada’s narrow definition of genocide. Nevertheless, legislatures are not bound by such considerations, and half the recognized genocides in this country ended well before the UNGC was in force.
Genocide recognition should be a focus of settler attention, and we should seek this recognition through an act of Parliament; through bills passed by provincial and territorial assemblies, city councils, and municipalities; and through resolutions adopted by teachers’ unions, and bar, medical, and other professional associations. These can help remind Canadians that genocide was formative to the creation, expansion, and continued maintenance of our country. Genocide recognition may help those of us who are settlers ensure that the settler state abides by principles of the treaties, the UNDRIP, and international law.
Such recognition should also translate into putting the full definition of genocide into the Criminal Code, something that is almost five decades overdue. Given that the Liberal government has acknowledged that cultural genocide was committed in the IRS system, it would make logical sense (in the spirit of “never again”) to also amend the Criminal Code to prohibit cultural genocide. The term could be defined using the 1947 UNGC draft or based on the UNDRIP, given that Bill C-262 has been passed in the House of Commons. The 1994 draft of the UNDRIP (Article 7) outlined prohibitions against cultural genocide, but it did not specifically define the term. The term itself was removed from the declaration, but the crimes outlined in Article 8(2) are very similar to those in the 1994 draft and could constitute the basis for a definition and prohibition of cultural genocide in Canadian criminal law. They are:
(a) Any action which has the aim or effect of depriving [Indigenous peoples] of their integrity as distinct peoples, or of their cultural values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;
(c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.
The revision of the Criminal Code to ensure that the crimes of the past cannot be (under settler law) revisited on Indigenous peoples will send a positive signal; it will also offer a departure from the Harper government’s strange approach to the IRS system: apologizing for government excesses in 2008, while keeping the Indian Act provisions that allowed it to happen on the books until 2014. Genocide recognition may not bring substantive changes to how First Nations govern themselves, but it can help lay the basis for a settler society that better understands why such changes to the status quo are necessary. Recognition may also help settlers understand why Crown-Indigenous relations have the power imbalance they do now, and it will help disabuse us of the notion that the Canadian government has always sought to promote the best interests of Indigenous peoples in their policymaking.
Tuck and Yang, in a notable intervention, have called for an “ethic of incommensurability,” in which models of decolonization are “not accountable to settlers, or settler futurity,” but to “Indigenous sovereignty and futurity.” They are clear: “The answers will not emerge from friendly understanding, and indeed require a dangerous understanding of uncommonality that un-coalesces coalition politics – moves that may feel very unfriendly.”38 Unfriendliness may reflect the extreme mismatch in political power between levels of Canadian government and Indigenous nations, and it also reflects the long-term legacies of genocide. Genocide in its many forms has been a useful expedient for settler governments to deprive Indigenous peoples of their lands, identities, practices, and lives. Canada’s world-class standard of living (for settlers) still relies on the exploitation of Indigenous lands and bodies. Giving back land, resources, and political power will invariably be a central component of any successful conciliation strategy.
The Settlers’ Right of Refusal
Those of us who are settlers and who are dissatisfied with the current state of government policies and institutions can practise refusal – refusing to condone our government’s ongoing colonial activities. We can, as Barker and Lowman have argued, “disrupt settler colonial spaces.” This can include such examples as failing “to uphold settler colonial relationships, to fail to properly inhabit and embody settler colonial structures, systems, and stories, and by necessity find ways to build relationships differently.” The authors call for settlers to work with Indigenous peoples to come up with creative ways to roll back the state and strengthen Indigenous self-determining capacities, to “work to create a broad base, to build communities that undertake these efforts together.”39 If the settler state is made up of practices, we can practise sovereignty differently. For some, this may involve personal sacrifice, as it did for Anglican priest Emilie Smith and for Steve Heinrichs, director of Indigenous-settler relations for the Mennonite Church. Both of these settler-activists stood with Indigenous peoples in protesting the expansion of the Kinder Morgan Pipeline. They were arrested in April 2018 on charges of “contempt” and sentenced to imprisonment in British Columbia.
An important change we can make now as settlers is to work to repatriate land to First Nations. Several settlers in 2017 undertook this process, starting with British Columbia rancher Kenneth Linde, who donated three hundred acres of land to the Esk’etemc First Nation. Peterborough-based teacher Janice Keil started the process of repatriating one hundred acres of family-owned land to the Alderville First Nation in Ontario. Both donors have described these efforts as acts of reconciliation. The provincial and federal governments can work to streamline this process (known as the Addition to Reserve policy) as it can take well over a decade for a reserve to expand its territorial base, and it involves negotiation with municipal and provincial authorities. Further, Indigenous peoples have only usufructuary rights to reserve lands (that is, they have the right to enjoy the use of them without owning them), all of which is considered to be “held” by the Crown, even new lands purchased by First Nations in treaty settlements.
The contours of Indigenous self-determination and the exercise of hard rights will be different for each Indigenous nation, and nations are invariably going to change and evolve as they seek to overcome centuries of colonization and genocide. There will be no one universal solution and no one way of establishing certainty about what conciliation and/or reconciliation will look like. Conciliation will be part of long-term relationship building and not a terminus. This is something few of us will see in our lifetimes at a national level, but we need to promote positive change now so that our children and grandchildren will hopefully see the benefits instead of the harms of our actions today.