Aboriginal Rights as a Tool of Colonialism: Part Three

By Bruce McIvor

You can read Part Two of Aboriginal Rights as a Tool of Colonialism here. 


The Supreme Court's view of Aboriginal rights is not part of the past, it lives in the present, decision after decision. When the Court took the unavoidable step of making a declaration of Aboriginal title, it perpetuated the biases underlying its colonial intellectual tradition. It framed the proof of Aboriginal title in terms of nomads and semi-nomads, of Indigenous Peoples' technological abilities and their land's carrying capacity. 

The effect of reading the Supreme Court's decision triggered memories of my childhood experience at the museum. I paused in reading the decision, pushed back my chair, closed my eyes and found myself working my way along an evolutionary line beginning with nomadic, Indigenous hunters, proceeding to the arrival of a sailing ship from Europe, filled with new technology and introducing Indigenous people to commercial markets and then on to the arrival of the settlers bringing with them civilization, agriculture and education. 

The Court's words made me think of how often at museums and in educational documentaries Indigenous people continue to be depicted along with the wildlife--what is the carrying capacity of an ecosystem for moose, rabbits, partridges (Indigenous people?)--before they are left behind, stuck in the past, while the real story of nation building gets rolling. 

Canadian law's articulation of Aboriginal rights haunts me at unexpected times. I spend too much time reading novels recommended by the Guardian in an insecure attempt to fill huge gaps in my education. A few years ago I read A Bend in the River, V.S. Naipaul's novel of post-colonial Africa. Salim, the narrator, describes the introduction of British postage stamps depicting scenes of his country. One of the stamps was entitled 'Arab Dahow'. Having seen the stamp, he could never look at a dhow the same again. An everyday object he had taken for granted his entire life had been transformed into something distinct and essential to his people, something to be contrasted with the ‘modern’ cargo ships of the colonizers. 

Salim's description of the postage stamp brought to mind the outsider's view of my neighbours, friends and family I encountered after leaving home for university. Reporters, lost beyond the perimeter highway that circles Winnipeg, occasionally pen salvage ethnography pieces describing the primitive, backward people they discover within a two-hour drive of the provincial capital. One such publication was entitled People of the Interlake, filled with images reminiscent of United States depression-era photographers. 



An essay in a Saturday edition of the Globe & Mail described the region in Manitoba where I grew up as the type of place where "there are burnt out cars by the side of the road and family feuds run deep." When I shared the story with family members, they responded with a dismissive, bitter laughter that carried a challenge and a threat for any outsider foolish enough to assume they could encapsulate in words or images what made us distinctive. 

My childhood museum visit came back again when I read Orientalism, Edward Said's courageous examination of how Western societies created and continue to recreate 'the other' as part of historical and modern-day colonialism. Over two weeks I listened to the audiobook before sunrise while sipping my morning coffee, hovering in the netherworld between sleep and consciousness. 

While the book is filled with erudite analysis (most of which was lost on me), two of Said's insights jolted me fully awake. The first is how through the workings of orientalism, Eastern societies are not seen, they are seen through. The second is how orientalism works to facilitate, support and justify the West's infiltration and possession of Eastern societies. 

Through Said's insights my memory of the museum and the Supreme Court's section 35 case law were brought together with the click, click, click precision of an optometrist merging letters during an eye examination. 


Tomorrow, in the fourth and final part of this essay, I explain how decolonization cannot truly begin without truth telling. 



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.

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