This is the fourth and final installment of Bruce McIvor's essay, "Aboriginal Rights as a Tool of Colonialism." You can read the full essay here.
When I started working in Aboriginal law over 25 years ago, I assumed the liberating potential of section 35. While it might be an empty box, through the hard work, optimism and persistence of my Indigenous clients it would gradually be filled with a wide range of rights, including Aboriginal title, which would support the reemergence of strong, independent Indigenous nations. My work over the last quarter century has been an exercise in unlearning my naivety.
With the support, encouragement and gentle persistence of my clients and Indigenous colleagues, I have shifted my perspective on section 35. I've realized that empty or full, section 35, as envisioned by the Supreme Court, is still a box.
Like a museum exhibit, it is a box that works as a tool of colonialism by defining and limiting the rights of Indigenous people, by essentializing their 'Indigeneity', their otherness, and by including a backdoor through which this diminished box of treasures can be looted by provincial and federal governments. The overall effect has been to turn section 35 into a tool of colonization.
Rather than upsetting the colonization project, section 35 confirms and legitimizes it.
Colonialism's stories are insidious and persistent. They are all around us. Only a few blocks from the Supreme Court stands a piece of public art consisting of an Indigenous man gripping a bow and arrow, eyes fixed on a motionless deer 30 yards away, forever waiting for the frame to advance, waiting for its life to continue or end. The two figures are frozen in time, locked in a prison whose bars are reinforced by the passing glance of every person trudging up the hill towards the parliament buildings.
The systems of possession, dispossession and domination that support Canada's ongoing colonization project are informed and justified by the stories non-Indigenous Canada tells about Indigenous people. Resetting the relationship between colonizers and Indigenous nations cannot begin without honest truth telling about these stories, truth telling about how they not only limit the value of constitutional protection for Indigenous rights, but also support and legitimize Canada's colonization project.
The argument that present day Canadians are not responsible for the genocidal effects of colonization on Indigenous people because that was something perpetrated by earlier generations is based on the falsehood that colonization is a regrettable historical artifact.
Colonization isn't something that occurred in the distant past. Colonization is as much a part of modern Canadian life as Tim Horton's and the frustration of Toronto Maple Leaf fans.
Every non-Indigenous Canadian alive today benefits from the ongoing dispossession of Indigenous people from their lands. Every non-Indigenous Canadian is a colonizer. Every non-Indigenous Canadian is responsible for taking action to address the present and ongoing wrongs of colonization.
Non-Indigenous Canadians must strive to emulate the courage of Indigenous people who fearlessly speak the truth of their ancestors, the truth written on and embedded in the land.
Speaking the truth, always speaking the truth, carries a power and authority that cuts through the colonizers' constructs, their fictions, their classifications and false promises. By fearlessly speaking the truth, always speaking the truth, non-Indigenous people can fulfill their responsibilities to the past, the present and the future.
And when the day comes for their part to end, they can honestly say that from the back rows they added their voices to the chorus of resistance that will never be silenced regardless of how many museums and boxes are built to contain, define and silence Indigenous people, a chorus of resistance that will, one day, throw back the shadows of colonialism.
Bruce McIvor, lawyer and historian, is partner at First Peoples Law LLP. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada. Bruce's ancestors took Métis scrip at Red River in Manitoba. He holds a law degree, a Ph.D. in Aboriginal and environmental history, is a Fulbright Scholar and author of Standoff: Why Reconciliation Fails Indigenous People and How to Fix It. He is a member of the Manitoba Métis Federation.
First Peoples Law LLP is a law firm dedicated to defending and advancing the rights of Indigenous Peoples. We work exclusively with Indigenous Peoples to defend their inherent and constitutionally protected title, rights and Treaty rights, uphold their Indigenous laws and governance and ensure economic prosperity for their current and future generations.
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