Anishinaabe comedian Ryan McMahon is one of Canada’s most perceptive social commentators. Season 5 of McMahon’s Red Man Laughing podcast is devoted to “reconciliation.” In his view, the brand of reconciliation peddled by Canada’s mainstream politicians is a massive failure. For many lawyers, McMahon’s critique likely grates on their ears. For those willing to be nudged out of their comfort zone, McMahon’s criticism rings true.
Reconciliation continues to fail because it rests on a foundation of systemic racism. It is predicated on the denial of Indigenous peoples’ inherent rights and the willingness of the Canadian state to use violence to suppress the exercise of Indigenous rights.
Reconciliation continues to fail because it attempts the impossible — the reconciliation of a right with a lie. The right is the pre-existing interest Indigenous peoples had and continue to have in their land and the right to make decisions about their land before and after the colonizers’ arrival. This includes the right to benefit from their land and decide how their lands should be used or not used.
The lie is that through simply showing up and planting a flag European nations could acquire an interest in Indigenous land and displace Indigenous laws.
Around the world, this racist legal principle is recognized as the “Doctrine of Discovery.” It was developed by the United States Supreme Court in the 1830s. In 1990, as part of its building-block interpretation of section 35 of the constitution, the Supreme Court of Canada welcomed it as a fundamental principle of Canadian law.
While the Doctrine of Discovery was codified as part of Canadian law in the 1990s, its rationale was nothing new for Indigenous peoples — by then it had become all too familiar to them. For decades and generations they had been faced with the denial of their laws, of their title to the land, of the true spirit and intent of treaties, of their very humanity.
Denial is the handmaiden of violence. When grainy images hover on TVs and computer screens of Indigenous peoples assaulted by agents of the Canadian state, the legacy and modern-reality of denial upsets smug complacency. In that discomfort the opportunity for real reconciliation is born.
Confronted with the reality that rote, feel-good land acknowledgements are part of the problem not the solution, Canadians will hopefully start to demand deliverables. What are the courts and mainstream politicians doing to undo hundreds of years of violence and denial? What is being done to ensure that Indigenous laws are respected, that Indigenous peoples benefit from their lands and are actively involved in deciding how their lands are used?
As hard as it might be for Canadians to hear McMahon’s condemnation of reconciliation as it is currently practiced, his criticism is also an invitation. It is an invitation to Canadians to take the first step on what will undoubtedly be a long and difficult road.
The first step is acceptance. Acceptance that Canada is fundamentally a racist state. That it has been built on the denial of Indigenous peoples’ rights and humanity. That this denial is a shameful fact that runs through and binds together Canadian law.
With acceptance comes opportunity.
Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. 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. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. 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.
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