The Relationship Between the Indigenous People of Canada and the Law

Myra Mansoor
Aug 23, 2021
5 min read

The tragic discovery of the unmarked graves of over hundreds of indigenous children found at residential schools has once again opened the conversation surrounding the foul treatment of Indigenous people in Canada. Now seems like the perfect opportunity to discuss the complex constitutional history of laws pertaining to them.

History

Over the last few years, the Indigenous people have come to possess the same legal rights as other Canadian citizens (4). The government has amended the constitution to implement laws which protect the interests and wellbeing of Indigenous people. However, it was not always this way. For decades, officials enforced oppressive and tyrannical laws which prevented the Indigenous people from doing something as simple as leaving their reserves.

The Canadians government has always possessed control over the lifestyle of the first nations. To understand their level of authority, one can look at the ‘Gradual Civilization Act’ of 1857(4). The Act aimed to strip the First Nations people of their status to assimilate them into the larger settler population (4). It encouraged ‘voluntary enfranchisement’ in which a First Nations person would give up their status in exchange for land and the right to vote. However, given the lack of people who wanted to voluntarily enfranchise, the government began unilaterally enfranchising people through the ‘Gradual Enfranchisement Act’ of 1869 (4). Even once the Indian Act was passed, the principle of enfranchisement was still in place, where any Indian who received a university degree, became a doctor, lawyer, or clergyman, was automatically revoked of their Indigenous status (4).

Prior to the Indian Act, the Royal Proclamation of 1763 was the only document which set guidelines for how colonial administrators were to treat the First Nations (9). It recognized the existence of Indigenous peoples and set a foundation for establishing treaties with Indigenous people. The Act established control of the Crown over the Indigenous people as it prohibited settlers from taking over Indigenous land unless it was first bought by the Crown. Essentially, it implemented a process by which the government could acquire their lands “legally”. The document was designed by colonists, without the input or consent of First Nations. Despite the existence of the proclamation, Indigenous people were continuously forced to prove their rights to land through various legal disputes.

Relevant Legislations, Voting and Residential Schools

The Indian Act gave the government power over the identity of the Indigenous, their political systems, and their access to education. The legislation made it illegal for First Nations to take part in their religious ceremonies or participate in cultural gatherings. It also prohibited the First Nations to hire lawyers and bring land claims against the government without the government’s consent. Further amendments were brought in, one of which forced children to attend residential schools where they were abused emotionally, physically, and sexually. Estimated 150,000 Indigenous children were removed from their homes and forced to enrol, in which they were forbidden from speaking their native language or practising their culture. Approximately 6,000 children died at the schools, however records are incomplete, and it is expected the numbers are much higher (5).

Numerous legal legislations have been produced to protect the rights of Indigenous people. Prime Minister John Diefenbaker drafted the Canadian Bill of Rights which emphasized equal rights for all Canadians. The bill had previously prevented Indigenous people from being denied the right to vote. Diefenbaker also repealed Section 14(2) of the Canada Elections Act in 1960, which allowed First Nations people to vote without losing their status. The Charter of Rights and Freedom also recognizes three distinct groups of Aboriginal people being: First Nations, Metis and Inuit. As stated by the government of Canada, the Charter also has the ‘anti-discrimination legislation, which exists to protect and advocate for the human rights of Aboriginal people’ (3).

Indigenous people still believe that voting in federal election will not provide them with the sovereignty, jurisdiction or the right for self-determination that they seek. Over the years, the First Nations people have taken it upon themselves to represent their issues and concerns through their own political body. The Inuit and Metis groups have formed co-operatives, and band councils, which consist of an elected group, held in charge of administering federally funded programs on First Nations reserves (8) . Their goals are focused on self-government to enhance and recognize constitutionally the legal rights and powers of bands. The Aboriginal bands and band council have been granted limited powers under the Indian Act (8).

Overrepresentation in Prisons and the Future

One of the main things which illustrates the inequality faced by Indigenous people in the law, is the overrepresentation of them in federal prisons. Indigenous people make up only 5% of the Canadian population, yet they account for more than 30% of federal inmate population (6). In provinces Manitoba, Saskatchewan and Alberta, Indigenous people make up about 54% of the prison population (6). In addition, indigenous women account for 42% of women in federal custody (6). They are also much more likely to be placed in maximum security institutions and more likely to be placed in solitary confinement (6). The proportion of Indigenous prisoners has been steadily increasing. Since April 2010, the indigenous population in prisons has grown up 44%, whereas the non-Indigenous incarcerated population has declined over the same period by almost 13% (7).

In 2015, Prime Minister Justin Trudeau pledged to mend the broken relationship between Indigenous people across the country recognizing that “the rights of First Nations in Canada are not an inconvenience but rather a sacred obligation” (7). However, the number of inmates has steadily increased under Trudeau’s rule. Correctional Investigator Ivan Zinger, called the trend ‘disturbing’, stating the immediate need for action. He said, “no government of any stripe has managed to reverse the trend of indigenous over-representation in Canadian jails and prison” adding that “the indigenization of Canada’s prison population is nothing short of a national travesty”(6). Jordan Crosby, the director of Parliamentary Affairs for the Ministry said ‘‘we know there’s much work to do’ adding on that ‘overrepresentation of indigenous people in correctional institutions is an unacceptable situation that we are working very hard to address’ (1).

After decades of calling for reform, all royal commissions, national inquiries, court interventions and political promises have failed to bring about positive change for Indigenous people. As proposed by Zinger, the Correctional Services in Canada and the government must be held accountable in the overrepresentation of Indigenous people in prisons and continue to acknowledge the trauma they have endured. More attention needs to be given to matters related to their protection and overall wellbeing even by society. People should continue to use their online platforms, including social media, to educate themselves and raise awareness about the difficulties faced by Indigenous people. All Canadians should try to donate to Canadian charities supporting Indigenous communities and practice compassion as Indigenous communities mourn and share their stories.

Endnotes

Chantelle Bellrichard, “Over-representation of Indigenous people in federal prisons reaches ‘disturbing’ historic high.” CBC News, January 21, 2020. https://www.cbc.ca/news/indigenous/indigenous-overrepresentation-prison-oci-statement-1.5434712
Hilary Beaumont, “Will Canada face criminal charges for residential school abuses?” July 8, 2021. https://www.aljazeera.com/news/2021/7/8/will-canada-face-charges-residential-school-abuses
“Indigenous Peoples and human rights.” Government of Canada. https://www.canada.ca/en/canadian-heritage/services/rights-indigenous-peoples.html
John F. Leslie, “Indigenous Suffrage.” The Canadian Encyclopedia, April 7, 2016. https://www.thecanadianencyclopedia.ca/en/article/indigenous-suffrage
J.R. Miller, “Residential Schools in Canada.” The Canadian Encyclopedia, October 10, 2012. https://www.thecanadianencyclopedia.ca/en/article/residential-schools
Leyland Cecco, “‘National travesty’: report shows one third of Canada’s prisoners are Indigenous.” The Guardian, January 22, 2020. https://www.theguardian.com/world/2020/jan/22/one-third-canada-prisoners-indigenous-report
Leyland Cecco, “Canada indigenous leaders divided over Trudeau’s pledge to put them first.” The Guardian, February 18, 2018. https://www.theguardian.com/world/2018/feb/18/canada-indigenous-first-nations-justin-trudeau-pledge-reaction
William B. Henderson, “Indigenous Peoples in Canadian Law.” The Canadian Encyclopedia, February 6, 2012. https://www.thecanadianencyclopedia.ca/en/article/aboriginal-people-law
Zach Parrott, “The Indian Act.” The Canadian Encyclopedia, February 7, 2006. https://www.thecanadianencyclopedia.ca/en/article/indian-act