by Michael Keefer
Today, it is not merely justice itself, but the idea of justice that is under attack.
The assault on vulnerable, fragile sections of society is so complete, so cruel and so clever that its sheer audacity has eroded our definition of justice. It has forced us to lower our sights, and curtail our expectations. Even among the well-intentioned, the magnificent concept of justice is gradually being substituted with the reduced, far more fragile discourse of “human rights”.
This is an alarming shift. The difference is that notions of equality, or parity, have been pried loose and eased out of the equation.
a. Lowered Expectations? Nuance, Context and Hypocrisy
It may seem counter-intuitive to speak of human rights, in Arundhati Roy's manner, as a fragile and reduced substitute for declining commitments to equality, parity, and justice. Haven't we witnessed rather, since World War II, a burgeoning of human rights discourses that have instantiated a collective thirst for justice in UN institutions like UNESCO and UNICEF (founded in 1945 and 1946), and in instruments of international law, beginning with the Universal Declaration of Human Rights (UDHR, 1948), and culminating in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP, 2007)?
There can be no doubt about this burgeoning, and yet some of the core instruments of international human rights were apparently formulated in response to the re-emergence since the 1960s and 1970s of forms of injustice—torture, the effective enslavement of migrants and refugees, the deployment of death squads—previously thought to be close to elimination.2 A further symptom of an erosion of justice might be the 2010 publication by Stéphane Hessel, who served in the French resistance to Nazi occupation and in the diplomatic work towards the final text of the UDHR, of a manifesto encouraging opposition to the whittling away by political-economic elites of the social, civil and political rights for which his generation had struggled. Indignez-vous! touched a public nerve: within a year over 950,000 copies were sold in France, and several million copies in at least fifteen other languages.3
Despite widespread support in Canada for human rights at home and abroad, discourses of rights and justice may have been enfeebled here by recent failures to fulfil commitments under the Fourth Geneva Convention and other instruments of international law. In Afghanistan the Canadian contingent in NATO's occupation force collaborated with the Afghan police's systematic torture of detainees; though aware of this by 2006, our government feigned ignorance and blocked inquiries into what amounted to war crimes.4 In Haiti, the principle of “responsibility to protect” (which Canada had helped to formulate) was used by the US, Canada and France in 2004 to justify overthrowing a democratically elected government and imposing an occupation under which regime-sponsored rape, murder and disappearances became routine.5 And the Canadian government has supported Israeli violations of international law in the Occupied Palestinian Territories, including Israel's blockade of Gaza, to the extent of raising the possibility that Canada might follow France in subjecting advocates of boycott, divestment, and sanctions to hate-crime prosecutions.6
As these considerations suggest, the subject of Indigenous human rights in Canada must be approached with a critical eye to nuance and context. For as with the gap between Canadian human rights rhetoric and actions in Afghanistan, Haiti, and Israel/Palestine, there have been divergences between promise and performance in government statements and actions relating to the Aboriginal, treaty and human rights of Indigenous people.
In 2007 Canada, together with the US, Australia, and New Zealand, voted against the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). In November 2010, Stephen Harper's Conservative government revised its position, issuing a Statement of Support for UNDRIP—which described it, however, as an “aspirational” and “non-legally binding document that does not reflect customary international law.”
The Statement of Support was itself more self-congratulatory than aspirational in tone. It praised Canada as having been “a strong voice for the protection of human rights” and a party to many UN conventions “which give expression to this commitment,” and it credited Harper's government with a positive shift in Canada's relationship with Indigenous peoples, “exemplified by the Prime Minister's historic apology to former students of Indian Residential Schools, the creation of the Truth and Reconciliation Commission, the apology for relocation of Inuit families to the High Arctic and the honouring of Métis veterans at Juno Beach.”7
However, the Truth and Reconciliation Commission was not a government initiative, but was mandated by a court-approved legal settlement; the other actions were purely rhetorical. The Statement instantiated the government's “exemplary progress” in building a “positive relationship with Aboriginal peoples [...] based on good faith, partnership and mutual respect,” by referring to “concrete and viable actions in [...] education, skills development, economic development, employment, health care, housing and access to safe drinking water.”8 But the Harper government might more accurately be credited with a strongly negative shift in Canada's relationship with Indigenous peoples—beginning in 2006 when, on coming to power, it refused to implement the Kelowna Accord negotiated by the previous Liberal government, which had promised large-scale investment (more than $5 billion over five years) in Indigenous education, housing, health services and economic development.9
Indigenous people's response to Prime Minister Harper's apology for the residential schools in June 2008 was guarded. Kevin McKay, Chair of the Nisga'a Lisims Government, said that its acceptability “is very much a personal decision of residential school survivors,” and that the Nisga'a would assess its sincerity “on the basis of the policies and actions of the government in the days and years to come.”10 For most people, the question of Harper's sincerity was answered by his declaration in September 2009 at the G20 Summit in Pittsburgh that Canada has “no history of colonialism.”11 That ignorant assertion, Derrick O'Keefe wrote, exposed “the pervasive racism-fuelled historical amnesia and denial in Canadian society” and showed what the apology “was really worth.”12
No less damaging to the government's reputation was the fact that in December 2012 the Truth and Reconciliation Commission was obliged to go to court to compel the release of documents relating to the residential schools. The Commission stated that Ottawa had “'erected a myriad of obstacles' to avoid fulfilling its obligations,” and was using claims about privacy and cabinet confidentiality to block the release of documents.13
A reading of the report by UN Special Rapporteur on the Rights of Indigenous Peoples James Anaya, The situation of indigenous peoples in Canada (July 2014), cannot help but cast doubt on the veracity and integrity of the government's 2010 Statement. Anaya credits the Canadian state with several achievements—among them, the “legislation, policy and processes in place to address historical grievances of indigenous peoples with respect to treaty and aboriginal rights. In this regard, Canada is an example to the world.”14 But he found “high levels of distrust among indigenous peoples,” adding that “It is difficult to reconcile Canada's well-developed legal framework and general prosperity with the human rights problems faced by indigenous peoples in Canada, which have reached crisis proportions in many respects.”15
Anaya noted that most Indigenous people in Canada live in deep poverty: “Of the bottom 100 Canadian communities on the Community Well-Being Index, 96 are First Nations and only one First Nation community is in the top 100.” Housing on reserves, in the north especially, is in a state of crisis, and “more than half of the water systems pose a medium or high health risk to their users.” Federal education funding is inadequate, and there are large disparities in outcomes between Indigenous and non-Indigenous students.16
Injuries inflicted by past government policies have not been healed: “The residential school period continues to cast a long shadow of despair on indigenous communities, and many of the dire social and economic problems faced by aboriginal peoples are linked to that experience.” For example, “among the results of the residential school and 'sixties scoop' eras and associated cultural dislocation has been a lack of intergenerational transmission of child-raising skills and high rates of substance abuse. Aboriginal children continue to be taken into the care of child services at a rate eight times higher than non-indigenous Canadians.”17 Moreover, “Given these dire social and economic circumstances, it may not come as a surprise that, although indigenous people comprise around 4 per cent of the Canadian population, they make up 25 per cent of the prison population.” The plight of Indigenous women is especially alarming: they comprise one third of the female prison population in Canada, and “are also disproportionately victims of violent crime. The Native Women's Association of Canada has documented over 660 cases of women and girls across Canada who have gone missing or been murdered in the last 20 years....”18
Anaya's report identified further troubling issues. These include statutory and jurisdictional obstacles to self-governance, a lack of consultation of Indigenous people in matters ranging from education to land use, procedural delays in land claims cases leading to the de facto denial of Indigenous rights, and a large number of “proposed or implemented development projects” that Indigenous representatives said “posed great risks to their communities and about which they felt their concerns had not been adequately heard, or addressed.”19
In what follows, appropriate historical, legislative and political contexts will be provided for the critical issues mentioned in Anaya's report—and as will become apparent, the matters he alluded to are part of a dark history that calls most urgently for actions of redress, restoration, and restitution.20 But before moving on to those considerations, another preliminary matter remains to be discussed.
b. Indigenous Human Rights: Individual, or Communal and Collective?
Human rights have often been construed in individualistic terms—as for example, when Guy Goodwin-Gill of All Soul's College, Oxford remarked, in relation to Article 14 of the UDHR, which treats of refugees, that “the individual was only then beginning to be seen as the beneficiary of human rights in international law.”21 But as Hannah Arendt, herself a refugee from Nazism, observed in The Origins of Totalitarianism, an individualistic conceptualizing of human rights is problematic—for it was not as individuals with particular beliefs and commitments but rather as members of collectivities excluded from the rights of citizenship that persecuted minorities in Europe experienced catastrophic denials of their human rights during the period leading up to and including World War II.22 Arendt noted that during the pre-war years the major guardian of human rights, the French-sponsored Ligue des Droits de l'Homme, “behaved as though the question were still merely the saving of individuals persecuted for their political convictions and activities. This assumption, pointless already in the case of millions of Russian refugees, became simply absurd for Jews and Armenians.”23
Shin Imai has observed that a focus on “individual equality rights” has been rejected internationally by Indigenous peoples because of its connection with assimilationist policies.24 Such a connection has been clearly visible in Canada, where one major assault on Indigenous rights, the first Trudeau government's 1969 White Paper on Indian Policy, which planned to scrap the treaties between First Nations and the Crown and to privatize communal Indigenous land, claimed to be motivated by a concern for human rights. The White Paper stated that the government was proposing to act in support of the “right of Indian people”—as individuals, apparently, rather than peoples or nations—“to full and equal participation in the cultural, social, economic and political life of Canada.”25 Under the leadership of Harold Cardinal, the Indian Association of Alberta declared in response, in a manifesto entitled Citizens Plus which became known as the Red Paper, that the government was in fact proposing a future of dispersal, landlessness, poverty, and cultural extinction.26 And in a book whose title, The Unjust Society, rebuked Pierre Trudeau's 1968 campaign slogan promising a “Just Society,” Cardinal described the White Paper as “a thinly disguised programme of extermination through assimilation.”27
A similarly individualist instrumentalizing of rights discourse was revived by the Conservative government of Stephen Harper in a proposed First Nations Property Ownership Act (FNPOA, 2012)—which again was firmly opposed by Indigenous scholars and communities.28 One such scholar, Michael Fabris, has exposed as fraudulent the claim by supporters of the FNPOA that it would result in “'restoring' pre-colonial property rights regimes.” Rather, in providing “what its proponents describe[d] as a tool 'to unlock the tremendous economic potential of First Nations land,'” this Act would “facilitate the further dispossession of Indigenous people....”29 Moreover, the imposition of fee simple property rights30 on land “within reserve boundaries” that the Canadian government had unilaterally established would negate the fact that contemporary Indigenous analyses and struggles have insistently put those boundaries in question.31 The Act's key to “unlocking” the economic potential of Indigenous land is obvious: once Indigenous people could only hold title to land as private individuals, any notion of communal title to unceded lands that a people had inhabited for centuries or millennia would be meaningless, and Indigenous communities would no longer be able to object to resource-extraction or other development on such lands.
Daniel Fischlin and Martha Nandorfy have argued forcefully in The Community of Rights / The Rights of Community that human rights must be conceived in relation to collectivities, communities, and the civil and natural commons that sustain them. But while proposing “a rethinking of rights via the prism of community, as opposed to the conventional default for thinking about rights via prioritizing the individual,” they are at the same time aware of the difficulty, when collective rights “have virtually no standing or meaning juridically, except in the vaguest and most diluted ways,” of moving toward “a vision of rights that addresses the realities of collective rights not privileging the individual.”32
However, as Peter Kulchyski has observed, collective and communal rights do have standing in Canadian constitutional law. Human rights, “a product of the late 18th century Enlightenment, and of a long history of struggle [....] tend to be used to protect individuals, and tend to be invoked in urban contexts. [....] They reflect a universalizing notion of humanity, and involve equality rights and various freedoms that all humans should enjoy.”33 Aboriginal rights, in contrast,
reflect a version of cultural particularism: Indigenous cultures have become threatened as colonialism left many Indigenous peoples in the position of being a minority in their homelands. We do not all have Aboriginal rights, nor should we. Aboriginal rights stem from the struggles of Indigenous peoples. In a way, they could be seen as a specific form of customary rights, rights that developed over time, through repeated practice of an activity, rather than abstract rights that reflect a notion of how all people are “the same.”34
Kulchyski underlines this distinction with a reminder of the 1969 White Paper's deployment of equality rights in an assault upon Aboriginal and treaty rights. He notes that section 35 of the repatriated Canadian Constitution declares “simply but powerfully that 'existing Aboriginal and treaty rights are hereby recognized and affirmed.'” And he adds that, “coming out of the White Paper struggle, leaders knew that something else was needed to ensure that such a proposal would never again be on the table. Another section of Canada's Constitution, section 25 [...] was put in place in the Charter of Rights and Freedoms. It says that the Charter will not be interpreted in any way that might 'abrogate or derogate,' that is, diminish, Aboriginal rights. By doing so, Canada makes it clear that Aboriginal rights have equal legal force with human rights, that human rights will not be used to override Aboriginal rights.”35
In 1970 the Indian Association of Alberta's Red Paper insisted that “Our treaties are the bases of our rights.”36 It follows thatAboriginal and treaty rights must figure prominently in any discussion of Indigenous human rights in Canada.
2. Genocide in Canadian History
a. Contexts for Understanding Historical Trauma
More than a quarter-century ago Alan Davies wrote, in another context, that social historians have demolished the old myth of Canada as a uniquely tolerant, peaceful, and just society: our “proud complacency” has been destroyed, and “our national self-righteousness has been left in tatters.”37
This is especially evident in Canada's relations to Indigenous peoples, where the work of dissipating what Derrick O'Keefe called “racism-fuelled historical amnesia” involves an ongoing grappling with hard truths.38 The introductory paragraphs of the first volume of the Truth and Reconciliation Commission's final report provide an incisive summary of Canada's treatment of its Indigenous population since before the time of Canadian Confederation:
For over a century, the central goals of Canada's Aboriginal policy were to eliminate Aboriginal governments; ignore Aboriginal rights; terminate the Treaties; and, through a process of assimilation, cause Aboriginal people to cease to exist as distinct legal, social, cultural, religious, and racial entities in Canada. [....]
Physical genocide is the mass killing of the members of a targeted group, and biological genocide is the destruction of the group's reproductive capacity. Cultural genocide is the destruction of those structures and practices that allow the group to continue as a group. States that engage in cultural genocide set out to destroy the political and social institutions of the targeted group. Land is seized, and populations are forcibly transferred and their movement is restricted. Languages are banned. Spiritual leaders are persecuted, spiritual practices are forbidden, and objects of spiritual value are confiscated and destroyed. And [...] families are disrupted to prevent the transmission of cultural values from one generation to the next.
In dealing with Aboriginal people, Canada did all these things.39
The introduction to the Commission's report also explains what motivated this policy:
The Canadian government pursued this policy of cultural genocide because it wished to divest itself of its legal and financial obligations to Aboriginal people and gain control over their land and resources. If every Aboriginal person had been “absorbed into the body politic,” there would be no reserves, no Treaties, and no Aboriginal rights.40
During the late nineteenth and early twentieth centuries the goal of a complete assimilation of Canada's Indigenous peoples may have seemed close to being achieved. First Nations forces had played a decisive role in frustrating US invasions of Canada in the War of 1812. But following the Treaty of Ghent which ended hostilities between Britain and the United States in December 1814, First Nations sank into political insignificance in the eyes of Canadian settler colonists, whose numbers by the 1830s and 1840s were increasing exponentially.
Settlement pressures led to the taking and legalized appropriation of Indigenous lands, and colonial authorities in the eastern provinces and in Lower and Upper Canada moved Indigenous people onto reserves, and by the 1830s were adopting policies aimed at their assimilation: a system of treaties ceding land to the colonizers, a system of tutelage that placed Indigenous people under the authority of supervisory Indian agents, and planning for schools aimed at moving Indigenous children into the now-dominant culture and training them for menial or agricultural work.41 Due to factors including the loss of land and traditional food sources, the shrinking of the fur trade, and the impact of epidemic diseases, Indigenous populations declined, so that by the time of Confederation in 1867, the total Indigenous population in all of what is now Canada is estimated to have been around 125,000 people.42
The Indian Act (1876), which redefined Indigenous people as wards of the state, was successively amended in succeeding decades so as to increase assimilationist pressures. In 1920 Duncan Campbell Scott, the Deputy Superintendent General of Indian Affairs, explained the motivation of further amendments to a parliamentary committee: “I want to get rid of the Indian problem. [....] Our objective is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian question, and no Indian Department....”43 In the interim, Scott wanted there to be no question either of land claims, or of litigation over misappropriated rents or unfulfilled treaty commitments. In 1927, Section 141 was added to the Act, making it illegal, without the written permission of the Superintendent General, to receive or solicit money “for the prosecution of any claim which the tribe or band [...] has or is represented to have for the recovery of any claim or money for the benefit of the said tribe or band....”44
There is an important dissonance, in terms of their implications for Aboriginal, treaty, and human rights, between the Indian Act, in its various manifestations, and the Royal Proclamation of 1763. As John Milloy has written,
The principles [the Royal Proclamation] laid down with respect to land and its inherent respect for the 'national' character of First Nations formed the core of British-Indian relations. Certainly, the fundamental characteristics of the contemporary relationship emanate from it: the recognition of Aboriginal rights, the Canadian treaty system and, of course, the persistent court cases geared to clarifying the nature of the 'existing rights' embedded in the repatriated Constitution of 1982—a constitution which specifically recognizes the continuing existence and significance of the Proclamation and its principles.45
And yet, Milloy adds, “the centrality given to the Proclamation in the 1982 Constitution, and its respect for Aboriginal rights, is only a relatively recent feature of Canada's history. For most of that history, from 1869 forward, the Proclamation's principles were alternately ignored, violated or, more often than not, applied with an eye to serving first national and only incidentally Aboriginal best interests.”46
During a period that Shin Imai has described as “a century-long Dark Ages in [Canada's] relations with Indigenous peoples,”47 government policies were shaped less by ethical or legal principles than by racist ideologies of nationalism and imperialism, and by a determination—still very much active—to settle and exploit land and resources under a system of private and corporate property ownership. An 1869 Act for the Gradual Enfranchisement of Indians abolished Indigenous forms of government, substituting elected councils under the control of Indian agents and having only municipal-level responsibilities. The 1876 Indian Act spelled out a planned reduction of Indigenous people to a status of political impotence and cultural and economic deprivation so complete that even the question of who belonged to Indigenous communities was to be determined not by those peoples themselves but by the Department of Indian Affairs.48 These effects have been compounded by sustained underfunding, bureaucratic inertia, and incompetence, with the result, as Dr. Michael Dan has observed, that “All the social determinants of health that are governed by the Indian Act (housing, education, economy, etc.) have been allowed to fail.”49
After touching what appears to have been a low point in 1921, when there were about 114,000 Indigenous people in Canada, Indigenous populations began to recover, despite continuing systemic inequities. By 1951, the total population had more than doubled in size, and the growth rate in populations of First Nations, Métis and Inuit people has since continued to increase.50 By 2006, 1,173,000 Indigenous people made up 3.8 percent of Canada's population; in 2011, 1,401,000 Indigenous people composed 4.3 percent of the total population; and in 2016, there were 1,674,000, accounting for 4.9 per cent of the total. This is an increase of 42.5 percent over a decade—“more than four times the growth rate of the non-Aboriginal population over the same period.”51
The largest increase has been among First Nations people without registered or treaty status under the Indian Act, whose numbers have grown by 75 percent in a decade, so that in 2016 they made up nearly 24 percent of all First Nations people. The total number of First Nations people grew to 977,000, an increase of more than 39 percent from 2006 to 2016. The Métis population, nearly two-thirds of whom live in cities of 30,000 people or more, increased in numbers to 588,000, growing by more than 51 percent over the decade. The Inuit, nearly three-quarters of whom live in the traditional lands of Inuit Nunangat, grew to just over 65,000 by 2016, an increase of 29 percent over the decade.52
Despite this rebound in numbers, there is disturbing evidence of cultural assimilation among Indigenous people. More than seventy Aboriginal languages were reported in the 2016 census, but only about half of these had five hundred or more speakers, and only some 261,000 Indigenous people (15.6 percent of the total) could speak an Aboriginal language. The fact that one-fifth of these people reported learning their language through study rather than as a mother tongue suggests a growing availability of language teaching, but the overall percentage who speak an Aboriginal language has declined from the 21.4 percent reported in 2006.53
Still more disturbing are the conditions in which most Indigenous people live. Fully 29 percent of off-reserve Indigenous people experience food insecurity and related health and psychosocial problems. This percentage is nearly three times higher than for non-Indigenous Canadians54—one sign that in Canadian cities, Indigenous people are among the poorest of the poor. Many on-reserve Indigenous people have no adequate access to clean drinking water. In 2015, there were “162 drinking water advisories in 118 First Nations communities”; Shoal Lake 40 First Nation had been living under a boil-water advisory for eighteen years, and Neskantaga First Nation for twenty years.55 As of December 2017, 67 long-term boil-water advisories in “public water systems managed by the federal government” had been in effect for longer than a year.56
Charlotte Reading and Fred Wien have remarked that “inequitable social determinants of health” produce “burdensome health disparities facing all Aboriginal peoples.”57 A disadvantaged condition caused by “colonization, colonialism, systemic racism and discrimination [....] is currently manifested in high rates of unemployment, scarce economic opportunities, poor housing, low literacy and educational attainment, as well as meagre community resources”; and the poverty of Indigenous people and the resulting psychosocial stress produce anxiety and despair, physical and mental illness, and high levels of suicide “linked to violence, addictions, poor parenting, and lack of social support.”58
As John Milloy observed, Department of Indian Affairs reports have charted over decades, against a background of rapid population growth, “the heritage of colonialism, of federal control and neglect of community development—the continuing deterioration of the social and economic conditions of First Nations, [and] the failure of successive governments to alleviate those conditions....”59 Inequitable social determinants of health and wellbeing are directly linked to other kinds of inequity. Milloy noted, for example, that during the 1970s, which he describes as having been a critical decade in the “near total” social collapse taking place within First Nations communities, “funding for First Nations increased 14% per capita compared to a 128% per capita growth in other federal social programs, and only 10% of overall First Nations funding was assigned to development.”60
These grossly disadvantageous conditions have for many years been traumatic for Indigenous communities. But the concept of historical trauma can also be applied to the effects of government actions that have contributed in a particularly forceful manner to the social and psychosocial problems afflicting contemporary Indigenous peoples. Teresa Evans-Campbell uses the term to refer to effects produced by harmful events, perpetrated by outsiders with purposeful and destructive intent, which have impacted many people among a population and have caused high levels of collective distress. She finds it characteristic of responses to historical trauma that effects of the event or events continue over time to undermine the well-being of contemporary members of the victim group; that the responses of victims and their descendants interact with contemporary sources of stress, echoing and compounding the original distress; and that the harm to well-being associated with historically traumatic events can accumulate over generations.61
To this analysis we can add a further temporal dimension having to do with the double processes of the dissolution of native societies and the imposition of a foreign economic and biocultural order that are characteristic of settler colonialism. Patrick Wolfe reminds us, in relation to these processes, of the obvious fact that “settler colonizers come to stay: invasion is a structure not an event.”62 One might say then that in a colonial context a traumatic event is never a singularity, because traumatic events come, not separately, but as components of a structure. And the structure of a settler-colonial invasion is composed of sequential and clustered traumatic events marked by a common underlying intentionality.
The residential schools have been a major source of historical trauma for generations of Indigenous people in Canada, and of an intergenerational proliferation of stress and trauma for the families of victims—about which many of those victimized by the schools have been able to speak, most eloquently, in public. There is little question that the residential schools and the “Sixties Scoop,” which continued the project of separating Indigenous children from their families and cultures, deserve to be categorized as genocidal.63 But other no less egregiously genocidal acts were carried out by the Canadian government during the period when the residential schools were first being established. The so-called “clearing of the plains” through a policy of deliberate starvation imposed by the government of Sir John A. Macdonald constitutes a deeper layer of historical trauma, one whose re-entry into historical memory now requires, except for the descendants of surviving victims who have had access to it through oral traditions, the mediation of scholarship.
These clustered and sequential traumatic events do indeed form part of a common structure of invasive dissolution and imposition, and reveal a shared genocidal intentionality.
b. Genocide on the Great Plains
James Daschuk writes in his magisterial study Clearing the Plains that during the mid-nineteenth century the Indigenous peoples of the great plains were probably the best-nourished and tallest humans on the planet.64 But following the Dominion of Canada's acquisition of sovereignty in December 1869 over the North-West Territories—immense tracts that according to the British crown, at least, had been 'owned' by the Hudson Bay Company—these people experienced mass starvation, epidemic diseases, and cruelly imposed socio-political transformations.
The principal factor in this disaster was the extermination of the vast bison herds that had been the peoples' principal food source—a process enabled by the technologies of the repeater rifle and the railroad (the American Transcontinental Railroad was completed in May 1869), and accelerated by the US army's policy of starving the Indigenous nations against whom they were waging war,65 and by the discovery in the early 1870s that bison hides, correctly tanned, could be made into machine belts for eastern factories.66
A supplementary cause of privation on the Canadian prairies was the Hudson Bay Company's decision in 1872 to end its traditional provision of credit and aid to the sick and elderly: “Having sold its charter, the company no longer felt responsible for the physical well-being of its suppliers.”67 Ill-prepared to provide a substitute for this rudimentary safety-net, or indeed to take responsibility in any way for the inhabitants of the newly-acquired territories, the Canadian government was likewise determined to minimize costs.
Daschuk observes that “In the Canadian northwest epidemics of introduced contagious diseases swept through the region from the 1730s to the 1870s.” But he insists that while those epidemics “among highly susceptible populations comprised a tragic, unforeseen, but largely organic change,”68 what happened after 1870 must be understood in terms of “the politics of famine,” as a result of shifting colonial relations of production and a “pathological intersection of political, economic, and biological forces.”69
Vaccination provided by the Hudson's Bay Company had since the 1830s diminished the threat of smallpox. But in 1869 American whisky traders moving north from the Missouri River brought a catastrophic new smallpox epidemic with them. The response of Canadian authorities in 1870, Daschuk says, stands in “stark and fatal contrast to the measures taken by the HBC against the outbreak a generation earlier. Government officials did not have a clue about the magnitude of the suffering or, in the short term, how to organize medical assistance over such a vast region.”70
Daschuk remarks that “It was in an atmosphere increasingly marked by privation, resignation and dread that the dominion treaty party met with the First Nations of the northern plains in the late summer of 1876. By then, the Cree along the North Saskatchewan River knew that the bison economy was all but over, and they recognized that conversion to a new economic paradigm based on agriculture would be extremely difficult.” But the dread went both ways: “The Plains Cree still posed a serious military threat to the small number of Europeans who had ventured onto the western prairie. [....] The fear of violence was heightened by the military victory of the Sioux under Sitting Bull at the Battle of the Little Big Horn only two months before negotiations began at Fort Carlton.”71
Indigenous people were aware of the challenges posed by the impending collapse of their traditional systems of trade and sustenance, the imposition of a new agricultural-industrial economic order, and the likelihood that European settlers would bring increased exposure to diseases. Their leaders ensured that the terms of Treaty 6 included reference to their most urgent needs: “extra assistance in their conversion to agriculture, protection from famine and pestilence, and inclusion of the 'medicine chest.'” What they did not anticipate were the government's “miserly interpretation of the terms of the treaty in the years following extirpation of the bison,” and the manner in which government policies ensured their “marginalization from the new agricultural economy on the plains.”72
For most of the decade preceding the final disappearance of the bison herds in 1878, Indigenous peoples in the plains had been experiencing food shortages, privation, and starvation.73 The region-wide famine that followed the near-extinction of the bison was accompanied, due to “the inability of authorities to provide adequate food relief,” by “the widespread emergence of tuberculosis among immune-compromised communities.”74 Daschuk states that “In contrast to smallpox and other infections [...], to a significant degree the TB outbreak was defined by human rather than simply biological parameters. The most significant factor under human control was the failure of the Canadian government to meet its treaty obligations and its decision to use food as a means to control the Indian population to meet its development agenda rather than as a response to a humanitarian crisis.”75
Sir John A. Macdonald's Conservatives returned to power in the autumn of 1878, with Macdonald holding the position of Minister of Indian Affairs as well as that of Prime Minister. Daschuk writes that “Management of the increasingly serious food situation and Indian affairs generally shifted from a position of 'relative ignorance' under [Alexander Mackenzie's] Liberals to one of outright malevolence during the Macdonald regime.”76
Macdonald's most notorious action, “the forced removal of communities from their chosen reserves in the Cypress Hills after the decision to build the Canadian Pacific Railway along the southern prairies,” was carried out in 1882. This ethnic cleansing of some 5,000 already starving people—whose rations were withheld until they capitulated—was intended, Daschuk writes, to open the country “close to the railway for European settlement and to minimize the potential threat of a concentrated Indian population to the planned establishment of an agricultural economy.”77 In fact, many Indigenous people were willing to enter such an economy. But they were set up to fail. According to a statement in the House of Commons in 1886, the farm instructors hired by the government “were universally known to be brutal wretches”; moreover, Indigenous farmers were denied access to machinery they needed to succeed in grain farming.78
Macdonald was responsible for appalling sufferings inflicted on sick and starving people by government agents acting on his orders to reduce expenditures on relief measures as much as possible. “We cannot allow them to die for want of food,” he said. But at the same time, “we are doing all we can, by refusing food until the Indians are on the verge of starvation, to reduce the expense.”79 In 1955 Dr. R. G. Ferguson, an authority on tuberculosis, estimated, on the basis of mortality data from annuity lists, that “the death rate on the Qu'Appelle reserves rose from 40 per 1,000 in 1881 to 127 per 1,000 in 1886, an increase of 87 per 1,000 in only five years.” Daschuk remarks that if these estimates are correct, “a European population would not experience a comparable rate until 1942—among the Jewish population of the Warsaw ghetto.”80
One irony of the situation is that cattle brought north from the US as a relief measure were commonly infected with bovine tuberculosis, which was passed on to the Indigenous people who ate the meat. Other crueler ironies ensued when government agents refused to distribute stockpiled food to starving people. At Battleford, when in 1878 “A stockade was built 'for fear that starving Natives might attack the fort where supplies were held',” Daschuk writes that “labourers were paid with food to build the fortification intended to keep the hungry away from the dominion ration house.”81 At the Sakimay Reserve in the Qu'Appelle Valley, 12,400 pounds of bacon and 5,100 pounds of flour were stored on reserve while people starved: on February 18th, 1884, Chief Sakimay and a band of armed men took some of the food for distribution. On that occasion, and at a similar confrontation in the spring of 1884 between police, local volunteers and over 2,000 Cree at the Poundmaker Reserve at Battleford, “sacks of grain withheld from the hungry were used to fortify the police positions during the standoff.”82
Confrontations of this kind, exacerbated by acts of wanton cruelty and abuses of power on the part of Department of Indian Affairs employees which included widespread sexual predations and (according to an accusation in Parliament) the trafficking of young girls, led in 1885 to open violence. In late March and April, Cree warriors took food and supplies by force in Battleford, Lac la Biche and Green Lake, and on April 2nd, killed ten Europeans at Frog Lake and Battleford. This was followed, after a drumhead trial in Battleford before an openly prejudiced judge and in which no translations were provided to the defendants, by the hanging of eight Indigenous men: the largest mass execution in Canadian history.83 The first of the industrial or residential schools had been opened in Battleford in 1883; it is claimed that all of the students “were taken out to witness the event.”84
c. The Residential Schools and the “Sixties Scoop”
Canada's system of residential schools for Indigenous children remained in operation for over a century. John Milloy has written that this system “represents in bricks and lumber, classroom and curriculum, the intolerance, presumption, and pride that lay at the heart of Victorian Christianity and democracy, that passed itself off as caring social policy and persisted, in the twentieth century, as thoughtless insensitivity.”85 The system did provide an education of sorts—usually rudimentary, ineptly conceived, incompetently taught, and involving a dispiriting emphasis on manual labour—but its primary function was to separate Indigenous children from their families, community, language and culture. Sir John A. Macdonald himself informed Parliament in May 1883 that “Indian children should be withdrawn as much as possible from the parental influence, and the only way to do that would be to put them in central training industrial schools where they will acquire the habits, mode and thought of white men.”86 Indian Commissioner Hayter Reed echoed this view in 1889, saying that “every effort should be directed against anything calculated to keep fresh in the memories of children habits and associations which it is one of the main objects of industrial institutions to obliterate.”87 And in 1914 another senior official, Duncan Campbell Scott, published an essay in which he expressed concern about the “relapse” of students “to the level of reserve life as soon as they came into contact with their parents.”88
Since especially after 1920 enrollment was typically not voluntary but forced, with punishments imposed for “truancy,” the system is vulnerable to the accusation of having been genocidal, in the terms of Article 2(e) of the Convention on Genocide: it was seeking to destroy national, ethnic, or racialized groups by forcibly transferring their children into another group in what Macdonald, together with Department of Indian Affairs (DIA) bureaucrats, hoped would be a permanent manner.89
The manner in which the system worked adds weight to the imputation of genocide. The schools were run by the Roman Catholic, Anglican, Presbyterian, United and Methodist churches by agreement with the DIA, which provided most of the funding, and imposed what an 1892 Order-in-Council called “a forced system of economy” arranged in terms of per capita payments based on student enrollment.90 The system did indeed economize: it “forced the churches to enrol more students and feed them less.”91 The consequences of inadequate funding clinch with haunting clarity the argument of Dean Neu and Richard Therrien, in their book Accounting for Genocide: Canada's Bureaucratic Assault on Aboriginal People, that “Cost-cutting and other numerical 'solutions'—at first sight deceptively free of moral entanglements—come to light, upon close scrutiny, as genocidal government policies.”92 As Robyn Bourgeois wrote of Neu and Therrien's analysis, “it is the mundane and insidious acts of violence that have the most substantial long-term effects on Aboriginal peoples.”93
Predominantly based upon internal DIA documents, John Milloy's account of the schools is devastating. The school buildings were in many cases incompetently designed and poorly constructed; some fell quickly into a scandalous state of disrepair.94 Children lived and slept in overcrowded, unventilated and otherwise unhealthy dormitories and classrooms that fostered the spread of tuberculosis and other epidemic diseases.95 The food on offer was disgracefully inadequate in terms both of quantity and nutritional value, and malnutrition, together with wretchedly inadequate clothing (especially winter clothing), increased children's vulnerability to disease.96 The medical and nursing care provided to children suffering from tuberculosis, influenza, or scabies was often either rudimentary or nonexistent.97 Principals, teachers, and staff were often both incompetent98 and brutal, and the cruelties and humiliations inflicted upon children, including horrifying levels of physical and sexual abuse, augmented the grievous psychological harm caused by the deliberate obliteration of family and community ties.99 As noted above, the schools have had intergenerational effects which resonate destructively with ongoing injustices. While fostering disease, Milloy suggests, the schools were themselves part of a larger disease:
The schools were, with the agents and agencies of economic and political marginalization, part of the contagion of colonization. In their direct attack on language and spirituality, the schools had been a particularly virulent strain of that imperial epidemic sapping the children's bodies and beings. In their lives after residential school, many adult survivors, the families and communities to which they returned, all manifest a tragic range of symptoms emblematic of [...] “the silent tortures” that continued in their communities.100
A final issue raised by the schools is the fact that church and government authorities made very determined attempts—successful for many decades, and continuing on the government's part to the present day—to cover up the abuses and crimes for which they and their predecessors were responsible.101
It is worth focussing on one DIA bureaucrat who for nearly a quarter-century exercised primary responsibility for the residential schools, who was instrumental in early cover-ups of even their worst features, and who was also a central figure in Canadian culture in his own time.
Duncan Campbell Scott joined the Department of Indian Affairs in 1879, at the age of seventeen, rose to the positions of Chief Accountant and Superintendent of Schools, and from 1913 until his retirement in 1932 held the position of Deputy Superintendent (equivalent to Deputy Minister). He was best known, however, as a poet and man of letters. By the first decade of the twentieth century his early collections of poetry had received international attention;102 during the same years, as co-editor from 1903 to 1908 of the 20-volume Makers of Canada series, he helped shape a canonical view of Canadian history and culture.103 Scott received important honours: he was elected a Fellow of the Royal Society of Canada in 1899, and was its President in 1921-22; he received the Royal Society's Lorne Pierce Medal in 1927, and honorary doctorates from the University of Toronto and Queen's University in 1922 and 1939; and in 1934 he was made a Companion of the Order of St. Michael and St. George (CMG). By the mid-twentieth century, he occupied a secondary but firm position in the English-Canadian literary canon, as one of the so-called “Confederation Poets.”104 But when laid alongside his work for the DIA, Scott's cultural production would seem to validate Walter Benjamin's dictum that “There is no document of civilization which is not at the same time a document of barbarism.”105
In October 1903 Dr. Peter Bryce, a public health specialist and secretary of the Ontario Provincial Board of Health,106 expressed concerns to the DIA about tuberculosis in reserves and schools, and proposed improvements to the DIA's medical services. On Scott's advice—“When the peculiar conditions are taken into consideration, the Department is doing as well as can be expected for the Indians, and to do anything further would entail a very heavy expenditure, which, at present, I am not able to recommend”107—no action was taken.
In 1904 Bryce was appointed Chief Medical Officer of the Indian Department, and in 1907 was instructed by the Minister to make a special inspection of thirty-five residential schools in the prairie provinces. In January of that year a lawyer reviewing Anglican mission work had informed the Minister of the “appalling number of deaths among the younger children,” adding that “doing nothing to obviate the preventable causes of death, brings the Department within unpleasant nearness to the charge of manslaughter.”108 Bryce's report substantiated this view: he found the schools to be underfunded and riddled with disease. After fifteen years of operation, “24 per cent of all the pupils which had been in the schools were known to be dead,” and fully three-quarters of the pupils who had attended one school “were dead at the end of the 16 years since the school opened.”109 In November 1907 news of this report leaked out to the press: the Ottawa Evening Citizen ran a front-page story under the headline “Schools Aid White Plague – Startling Death Rolls Revealed Among Indians – Absolute Inattention to Bare Necessities of Health,” and an article in Saturday Night magazine declared that “Indian boys and girls are dying like flies. [....] Even war seldom shows as large a percentage of fatalities as does the education system we have imposed on our Indian wards.”110
The recommendations in Bryce's 1907 report were suppressed by the DIA, and his attempts in subsequent annual reports to improve the “unsatisfactory health of the pupils” and prompt the “greater action” urged by local medical officers were blocked—owing, Bryce later wrote, “to the active opposition of Mr. D. C. Scott.”111 In 1909 Scott, by then Superintendent of Education, described Bryce's recommendations as “scientific,” but “quite inapplicable to the system under which these schools are conducted.” Scott made some minor reforms, which he assured his superiors would “remove the imputation that the Department is careless of the interests of these children.”112 But he believed no further changes were necessary: he wrote in 1910 to Major D. MacKay, the Indian Agent General in BC: “It is readily acknowledged that Indian children lose their natural resistance to illness by habituating so closely in the residential schools, and that they die at a much higher rate than in their villages. But this alone does not justify a change in the policy of this Department, which is geared towards a final solution of our Indian problem.”113 Thomas King is right to see in these words a slippage between assimilation and extermination.114
Four years later, in an essay on “Indian Affairs, 1867-1912,” Scott offered a no less chilling assessment of problems encountered “in the early days of school administration in the territories”:
The well-known predisposition of Indians to tuberculosis resulted in a very large percentage of deaths among the pupils. They were housed in buildings not carefully designed for school purposes, and those buildings became infected and dangerous to the inmates. It is quite within the mark to say that fifty per cent of the children who passed through these schools did not live to benefit from the education which they had received therein.115
This horrifying estimate of the death rate, though projected into the past, was scarcely a matter of ancient history, since by 1914 the earliest of the schools had been in operation for just over thirty years.116 And although Scott's later comment makes a racially inherited predisposition (a notion advanced by many doctors at the time) the primary cause of deaths, his comments also show an awareness of institutional factors identified by Bryce,117 as well as a heartless lack of concern over the suffering and deaths of very large numbers of children.
In June 1914 Scott, by then Deputy Superintendent, effectively dismissed Bryce by refusing him further access to departmental documents.118 In 1922 Bryce, following his retirement from the civil service, wrote with passionate anger about the decline of native populations,119 the DIA's underspending on tuberculosis,120 the government's refusal to live up to its treaties with First Nations people,121 and the DIA's failure even to collect adequate statistics, due to “the dominating influence, stimulated by the reactionary Deputy Minister, which prevents even the simplest effective efforts to deal with the health problems of the Indians along modern scientific lines.”122
Having read the stream of critical reports, despairing letters from teachers, and protests from parents that crossed Scott's desk, Milloy writes that “The whole system was tugging at Scott's sleeve, was crying out for funding for critical improvements and per capitas that would provide adequate meals and clothes.”123 But when faced with clear evidence of administrative collapse and criminal physical abuse, his response (while sometimes reproving subordinates or church-appointed administrators) was either to take no action or to discredit people who had brought complaints.124 He was particularly aggressive with Indigenous activists who attempted to organize opposition to DIA policies. In the case of Frederick Ogilvie Loft, a Mohawk WW I veteran and founder in 1919 of the League of Indians—Scott did not just smear him, as Milloy notes; he attempted in 1920 to deprive Loft of his Indian status, and in 1927 he proposed prosecuting him under the new Section 141 of the Indian Act, which made it illegal to solicit funds from Indians or Indian bands except with the DIA's written permission.125
It is hard not to feel, on returning to Scott's poetry or fiction, revulsion from a figure whose voice is so monstrously bifurcated between the cold and manipulative tone126 of his 'official' writing and the lyricism of his imaginative work. Scott seems himself to have recognized that his failure as a poet to develop beyond the promise manifested in his early books was rooted in the other side of his employment. In 1929 he wrote to Elise Aylen, who became his second wife in 1931: “I know now that I have never fought against anything nor worked for anything but just accepted & drifted from point to point—I have dimly felt that if I worked & protested & resisted I should be wrecked—So maybe you will understand why with some gifts I have done so little.”127
Indigenous people might reply that this highly honoured representative of a social order whose discourses and practices shaped his poetry no less than his bureaucratic mentality managed—whatever else he failed at—to inflict a lot of harm upon them.
* * *
The influences Scott accepted without resistance continued to do harm after his retirement. In February 1940, a Dr. J. D. Galbraith wrote to British Columbia's provincial secretary from the largely Nuxalk community of Bella Coola, urging action to address “the utter lack of measures” for treatment or prevention of TB, and noting that “the Canadian Indian is the only person in Canada who is excluded entirely from the nation-wide organization to cope with the disease of tuberculosis.”128 According to the Canadian Public Health Association, malnutrition and “the confinement of First Nations people on crowded reserves” were encouraging a continuing spread of tuberculosis: “Death rates in the 1930s and 1940s were in excess of 700 deaths per 100,000 persons, among the highest ever reported in a human population. Tragically, TB death rates among children in residential schools were even worse—as high as 8,000 deaths per 100,000 children.”129
During the years following WW II, scandalous deficiencies in residential school buildings continued to be reported. In 1953, the basement of one school was found by an inspector to be flooded with raw sewage, creating conditions under which “no human being should be asked to live”; a similarly collapsing septic system at another school had caused a “serious outbreak of typhoid fever among the staff and the pupils” in 1947.130 Other schools at much the same time were found to be fire traps, and there were widespread problems “with design, hygiene, heating, and ventilation.”131 A school which had been condemned in reports in 1908 and 1920 as a sinkhole of infection was found by local nurses in 1956 to be in an equally filthy condition: some fifty-seven students had to be taken to hospital with “numerous skin lesions,” and “thirty-two were admitted for treatment.”132 On the plus side, however, the postwar arrival of antibiotics, an effective vaccine, and X-ray clinics produced a significant decline in tuberculosis deaths.
A consensus emerged in government circles in the postwar years that the residential schools ought to be shut down, and the children integrated into provincial day-school systems or into day schools run by the DIA. But that process was delayed, in part because during the 1950s, through the action of Children's Aid societies and provincial child welfare agencies, rapidly growing numbers of Indigenous children were being taken from their families on grounds of neglect and placed in the schools. The root problem was poverty: but rather than remediate it, government agencies preferred to break up Indigenous families. According to the Truth and Reconciliation Commission's final report, “The reality is that residential schools had been used as child-welfare facilities from the outset of the system.”133 This was a role they were completely unfitted to fulfil: during the 1960s, “a period of unprecedented economic growth and prosperity in the country, the children who attended residential schools continued to be poorly housed, poorly fed, poorly clothed, and poorly educated. Separated from their parents, they were emotionally neglected, subject to harsh discipline, and, due to poor staff recruitment and supervision, at risk of sexual abuse.”134
By 1966, when there were 9,778 children enrolled in residential schools, “a confidential report estimated that throughout the system seventy-five percent of the children were 'from homes which by reasons of overcrowding and parental neglect or indifference [were] considered unfit for school children.'”135 By the latter part of that decade, however, the DIA was closing residential schools and, in partnership with Children's Aid societies and child welfare agencies, sending the children either into provincially run foster homes, or, when parents were deemed fit, back into their own families.
There is thus a direct continuity between the residential schools and what, in a book he published in 1983 on the cruelly racialized imbalance of Canada's child welfare system, Patrick Johnston called the “Sixties Scoop.”136 He used the term as the heading for a chapter in which he presented statistics, first brought to public attention three years previously in a study by H. Philip Hepworth,137 which revealed a scandalous racial bias in children's aid programs: across Canada, many times more Indigenous children than non-Indigenous children were being taken into care, and most of them were being placed with non-Indigenous foster families. The old project of assimilation was still in full swing.
In 1967 Saskatchewan's Child Welfare agency launched an explicitly trans-racial adoption program called AIM, the Adopt Indian Métis Program, that was jointly funded by the province and the Canadian government, and sought to place Indigenous children who had been made wards of the province with middle-class white families.138 This program, and the parallel actions taken by child welfare agencies in other provinces across Canada, had appalling results. The sufferings of four siblings from Regina who were adopted by a farming family into a life of brutal abuse and hard labour, from which they escaped into drug addiction, prostitution, and crime139—or of an Alberta Métis boy who was taken from his family at the age of three, and after fourteen years in 28 different foster homes hanged himself140—may have been extreme. But the uprooting of tens of thousands of children had grievous effects both on them and on their families.
Canada's racialized child-welfare system continues to have a disproportionate impact on Indigenous families: in 2011, Statistics Canada's National Household Survey found that 3.6 percent of Indigenous children aged fourteen, compared with only 0.3 percent of non-Indigenous children, were foster children, and nearly half (48.1 percent) of all children in foster care in Canada were Indigenous.141 The percentage of Indigenous children “scooped” by child welfare agencies is thus twelve times higher than the percentage of non-Indigenous children.
The residential schools and the “Sixties Scoop”—which is not over, but ongoing142—continue to generate front-page news. In 2013, historian Ian Mosby unveiled the ugly facts of nutritional deprivation experiments conducted by government scientists on some 1,000 children in six residential schools in BC, Alberta, Ontario and Nova Scotia between 1947 and 1952. In one school, the experiments included feeding children half the recommended amount of milk for two years, and withholding essential vitamins and dental services (because caries and gingivitis are “important factors in assessing nutritional status”).143 Together with subsequent research indicating that experimental drugs were tested on Indigenous children, this evidence has become the basis of a class-action lawsuit against the Canadian government.144
The residential school system has been the subject of extended court actions, which led to the formation of the Truth and Reconciliation Commission, and the government's commitment to a compensation process involving “common experience” payments to all former students alive as of May 2005, and additional compensation for victims (as established by an independent assessment process) of sexual and physical assaults and other wrongful acts. Almost 80,000 people have received common experience payments totalling $1.6 billion, and further compensation totalling $3.1 billion has been paid to nearly 32,000 of that number (with another 6,000 claims still under assessment).145 Other issues relating to the residential schools are still the subject of legal actions. In one case, survivors of the notorious St. Anne's school, where teachers disciplined students with a home-made electric chair,146 have taken court action—so far unsuccessful—because their claims for compensation had been rejected due to the use by government lawyers of false documentation, while at the same time the government was withholding other documents that would have supported their claims.147
A long-negotiated financial settlement has been arranged for victims of the “Sixties Scoop,” who are to receive a maximum of $50,000 each (probably much less, depending on their numbers) out of a fund totalling $750 million; another $50 million will pay for an Indigenous healing foundation, and a further $75 million will go to legal fees.148 The payments are intended as “restitution to Indigenous children who lost their cultural identities after being removed from their families and placed with non-Indigenous foster and adoptive families in Canada, the US, and Europe.”149 But since Métis and non-status Indigenous victims are excluded from the settlement, there may be further legal action.150
Senator Murray Sinclair, Mizanay Gheezhik, who chaired the Truth and Reconciliation Commission, has summed up what is at stake in all these matters:
Our children are the ongoing prize in the cultural war that Canada declared against us over 150 years ago. Canada may believe that the war is over, but until the automatic weapons it created as part of that war have been taken from their hands or altered in fundamental ways, or disabled totally, the war continues of its own momentum.
The child welfare system, the youth justice system and the educational system all function from the inherent fundamental belief that we as parents in our own communities do not have the right to birth, raise, educate, discipline and protect our children from Canada's inherent racism.151
Sinclair's metaphors of war are not inappropriate: it has been calculated that the odds of dying were higher for children in residential schools than for Canadians serving in World War II.152
Canada has a dismal historical record of contempt for Aboriginal rights, treaty rights, and Indigenous human rights in general; and the conditions in which Indigenous people in this country continue to live imply that that contempt has not significantly abated. It is worth asking, then, what the prospects may be for positive change. I will touch first on some forces and structures that tend to obstruct positive developments, and will then consider emergent tendencies that give hope for the future.
One negative factor is political instability. A Westminster-style first-past-the-post electoral system in which five political parties are contending for power, four of them parties of the centre-left, and three possessing substantial bases of support, is liable to produce results at variance with most voters' wishes—and (thanks to the splitting of the centre-left vote) favouring the party of the right. Thus Harper's Conservatives won the elections of 2006, 2008, and 2011 and governed for a decade without ever securing as much as 40 percent of the votes cast.153 Justin Trudeau's Liberals, who formed a majority government in 2015 with 39.5 percent of the vote, promised (but have yet to provide) substantive changes on Indigenous issues. But the present configuration of political parties could result in future policy reversals in the style of Stephen Harper's cynical abandonment of the Kelowna Accords in 2006.154
A second factor, shared with most countries worldwide, is the corporatist orientation of the major parties,155 which means that when corporate development or resource extraction interests and the rights of Indigenous people come into conflict, there is no doubt which side a Conservative or Liberal government—or for that matter a New Democratic Party government—will favour. The very high level of corporate ownership concentration in the Canadian media156 may likewise lead to a tendency to favour corporate interests in the reporting of Indigenous issues.
A third and perhaps related factor is a tendency on the part of provincial as well as federal governments to act in defiance of superior court judgments in favour of Aboriginal and treaty rights, and to wrongly apply state power in situations where Canadian law actually supports the stands taken by Indigenous people. In an interview on CBC Radio in early November 2013, Bill Gallagher, a specialist in natural resources law, expressed frustration with failures to apply what superior courts have determined to be the law of Canada. In New Brunswick, he observed, “There are seven high-level court cases that have been sitting on shelves through previous governments. These are appellate level decisions, Supreme Court of Canada level decisions, that are declaratory: the natives have won on a very profound point of law, [and] the parties that have lost, governments and interveners and industry, have been given a series of admonitions”157—which they have then proceeded to ignore.
These remarks had a precise context. Throughout the summer and fall of 2013, the Mi'kmaq First Nation of Elsipogtog, in eastern New Brunswick, had been opposing shale gas exploration by hydraulic fracking on unceded Mi'kmaq territory. Confrontations between the RCMP and the Mi'kmaq (supported by non-Indigenous people from both Acadian French and English-speaking communities) culminated with the blockade of a major cache of gas exploration equipment near the town of Rexton. After three full weeks, during which Elsipogtog Chief Arren Sock made an important declaration of Mi'kmaq rights over “unoccupied Crown lands,” a very large and heavily armed RCMP force assaulted the blockade encampment on October 17 and made mass arrests.158 Speaking another several weeks later, Gallagher was declaring that a commonly reiterated Canadian view of the conflict—to the effect that the Mi'kmaq violated property rights and the law, while the RCMP restored peace and good order—was diametrically wrong.
The RCMP's actions on October 17 were justified by a provincial court injunction that had been obtained by the Texas-based company whose equipment had been blockaded. But as the police were aware, that injunction was scheduled for a legal challenge on the 18th—and was in fact rescinded by the court four days later, for it had been issued in ignorance or defiance of a higher court's authoritative judgment.
In July 2008, the Ontario Court of Appeal had weighed the interests of a mining company against an assertion of Aboriginal rights by Ardoch Algonquin First Nation, which had blocked exploration work—and, like the Elsipogtog Mi'kmaq in 2013, defied an injunction to desist. After surveying two decades of Supreme Court of Canada jurisprudence, the Court of Appeal determined, as a legal commentator has noted, that
“injunctions sought by private parties to protect their interests should only be granted where every effort has been made by the court to encourage consultation, negotiation, accommodation and reconciliation....” The Court of Appeal cautioned in particular that if the injunction is intended to create a “protest free zone” for contentious private activity that impacts upon an asserted aboriginal right, the court must be extremely careful to ensure that the duty to consult with the First Nation has been fully and faithfully discharged....159
That duty, prescribed by the Supreme Court's 2004 decision in Haida Nation v. British Columbia,160 had not been discharged in the case of the New Brunswick blockade—a fact acknowledged by a subsequently appointed New Brunswick Commission on Hydraulic Fracturing when in its final report it gave prominence to a submission stating that “The duty to consult has become a meaningless process” because consultation meetings involve one-way communication, “manipulation of the process,” and a “lack of regard for collective rights.”161
If the injunction that justified a massive police assault and mass arrests contravened Canadian law, what about the underlying issue of property rights? Did the provincial government have a right to sell licenses for fracking exploration rights in a million hectares of New Brunswick—including Crown land, privately owned farmland and forests, and Indigenous reserves—to Southwestern Energy (SWN) of Houston? Were the Elsipogtog Mi'kmaq trespassing in setting up their blockade? Michael McClurg, another specialist in natural resources law, wrote in October 2013 that “the rule of law in this case would arguably dictate that the protesters [had] every right to be on their traditional land and that in fact, others, including the Crown and resource extraction companies, [were] trespassers.”162
An article in the Toronto Star by Métis writer Chelsea Vowel explained that there are two relevant judgments of the Supreme Court of Canada. The first of these, the Supreme Court's Delgamuukw decision, determined that Aboriginal title to most of British Columbia had never been extinguished—meaning that other parts of the country where no treaties giving up land ownership were signed had likewise never been acquired by the Crown. The second, the 1999 Marshall decision, confirmed that the Mi'kmaq and Maliseet Peace and Friendship Treaties of 1760-1761 did not involve any surrender of land or resources. As Vowel wrote, “This cannot be emphasized strongly enough: the Mi'kmaq never gave up legal right to their land or resources. Canada does not own the land that the people of Elsipogtog are defending. This is not conspiracy theory, or indigenous interpretation. This is Canadian law, interpreted by the Supreme Court of Canada, applying Canadian constitutional principles.”163
Michael McClurg expressed hope that people in government can learn—from the Report of the Royal Commission on Aboriginal Peoples,164 for example, or the Ipperwash Inquiry Report165—how to behave in “conflicts over resources, including appropriate police responses.” But their reactions to the Elsipogtog confrontation give one, he said, “a strong sense of history repeating itself.”166
In discussing the stand taken by the Mi'kmaq of Elsipogtog, we have moved imperceptibly into the category of emergent tendencies that might induce one to hope, despite the orientation of state power, for substantial improvements in the rights held and exercised by Indigenous people in Canada.
This is just one of a series of many recent struggles in which Indigenous people, faced with entrenched injustice and intransigent government agencies, have gone beyond victimhood and exercised political agency by engaging in diverse, often inventive forms of political action.167 Some of these episodes—such as the Oka crisis (1990), and the Ipperwash (1995) and Caledonia (2006) stand-offs—have involved the reclamation of misappropriated reserve land. Others—such as the Gustafsen Lake stand-off (1995)—have been prompted by assertions of Aboriginal and ceremonial rights on land appropriated by settlers.
The Burnt Church fishing dispute (1999-2000) involved a struggle by Mi'kmaq fishers to exercise their Aboriginal right to traditional food sources. The blockade of the Goose Bay airfield by Innu women (1988-90) responded to years of disruption of hunting activity in the Innu territory of Nitassinan by low-level overflights by NATO military aircraft rehearsing for World War III. Many other blockades since the late 1980s—at Barrière Lake, Québec, Temagami, Ontario, in the land of the Lubicon Cree in Alberta, and all through British Columbia—have been undertaken in defence against clear-cutting of forests and to assert Aboriginal title. The community of Grassy Narrows, Ontario has struggled for decades to get action in response to devastating mercury poisoning caused by a pulp and paper operation.168
There have been numerous instances in which, like the Elsipogtog First Nation, Indigenous peoples have resisted and continue to resist hydrocarbon and pipeline developments that threaten their elementary rights to land and water.169 Other forms of energy development have likewise prompted resistance in defence of the land and of Indigenous peoples' health. The dogged and persistent resistance to the Muskrat Falls dam in Labrador (2016-18) is well-known; less widely recognized is the fact that eleven other hydro-electric projects in northern Canada are projected to produce even higher levels of methylmercury poisoning than is expected downstream of Muskrat Falls.170
Of a quite different nature is the struggle in the village of Attawapiskat, where children for many years suffered in incompetently constructed school buildings polluted with diesel fuel and mold: beginning in 2007, the children themselves took a leading role in a remarkable and memorable agitation for the treaty right—and the basic human right—of a school building in which education could occur.171
A related form of political action, aimed at ending the gross disparities between health and social services funding provided for families by the Indigenous Affairs Department, and the funding provided to non-Indigenous families by provincial governments, has been led by Cindy Blackstock and the First Nations Child and Family Caring Society of Canada. After nearly nine years of struggle, marked by repeated attempts on the part of Aboriginal Affairs and Justice Canada to spy on and “retaliate” against Blackstock,172 the Canadian Human Rights Tribunal found in January 2016 that the Department's “discriminatory policies [...] have led to chronic underfunding and are damaging the lives of thousands of First Nations children.” It ordered the government to comply with “Jordan's principle,” according to which Indigenous children “should have the same access to services as other Canadians without delays caused by jurisdictional disputes....”173 But a year later, Blackstock had to return to the Tribunal: the Trudeau government was ready to spend half a billion dollars celebrating “Canada 150,” but not to devote similar resources to making up the shortfall in Indigenous welfare services.174
A more ambiguously positive tendency—the movement in Supreme Court jurisprudence toward an adequate recognition of Indigenous rights—has already been alluded to. Landmark decisions tending in this direction include, in addition to the Delgaamukh (1997), Marshall (1999) and Haida (2004) decisions already mentioned, the “game-changing” Calder (1973) decision in which “the Court found that Aboriginal title to land continues to exist unless validly extinguished by the Crown,” the decision in Mikisew Cree (2005) “applying the Crown's duty to consult to situations in which treaty rights might be affected; the 2010 Beckman decision extending the duty to consult to govern modern as well as historic treaties; the 2013 Manitoba Métis decision expanding on what the honour of the Crown requires; and the 2014 Tsilhqot'in Nation decision finding that the Tsilhqot'in Nation has Aboriginal title to areas which it had regularly used for hunting and fishing.”175 Lower courts have been moving in the same direction: in 2013 Bill Gallagher remarked on the fact that First Nations and Indigenous organizations had been consistent winners in upwards of 180 recent court cases.176
There has also been a surge in the capacity of Indigenous self-representation in Canada. I am thinking not just of nationally celebrated visual artists (among them Pitseolak Ashoona, Norval Morriseau, Bill Reid, Daphne Odjig, Kent Monkman), or writers (Tomson Highway, Lee Maracle, Thomas King, Daniel David Moses, Yvette Nolan), or filmmakers (Alanis Obomsawin, Zacharias Kunuk)—and not just of the hosts of talented younger artists who have arisen in their wake. A different, though in many ways complementary order of self-representation is apparent within the Canadian academy, where influential work in many disciplines is being published by Indigenous scholars.
Self-representation is a relational transaction within which many kinds of recognition or misrecognition can occur. When the other party is non-Indigenous, and accepts in good faith the risks involved in any such meeting of mind and spirit, an expansion of understanding may occur. What, for example, is a treaty? A once-and-we're-done piece of contract law? Michael Coyle shows, through an analysis of texts that preserve the processes involved in actual treaty-making throughout Canadian history, that the “central imperative of treaty-making in Canada” has been, rather, “to establish a new structure of relationships between the parties that would endure indefinitely.” There is evidence that treaty-making involved “conscious efforts on the part of Indigenous negotiators to educate their counterparts and introduce them to Indigenous ways of thinking about relationships and mutual responsibilities [....] that included caring, loyalty, and respect.”177
But government resistance to absorbing any such understanding has been monumental and ongoing. For as the investigative work of Andrew Crosby and Jeffrey Monaghan has revealed, a “security state” mentality is deeply embedded in the Canadian state. Analyzing many different instances, they show how through “a sprawling array of national security and policing agencies, industry and corporate partners, and public bureaucracies that are increasingly integrated through surveillance, intelligence databanks and institutional partnerships,” the security state “delegitimizes and suppresses Indigenous movements that challenge settler colonialism”—often at the expense of “staggering affront[s] to activities protected by the Canadian Charter of Rights and Freedoms....”178
Some Indigenous scholars, notably Taiaiake Alfred, have responded to the misrecognitions and destructive interpellations ensuing from incessant repetition of the colonizer's demands for submission and cooperation by calling for a resurgence of creative contention.179 The Idle No More movement that began in late 2012 was just such a resurgence. Initiated and led by Indigenous women, the movement took its name from the title of a November 2012 Saskatoon teach-in held in response to new legislation that violated Aboriginal and treaty rights; it set out to educate and revitalize Indigenous people so they could join in demanding the withdrawal of treaty-violating legislation, demanding the provision of fair and adequate funding to Indigenous communities, demanding a fully empowered national inquiry into the evidently systemic but under-investigated and unsolved rapes and murders of Indigenous women in western Canada, and demanding as well the establishment of nation-to-nation processes to address issues relating to the implementation of treaties and the sharing of land and resources.180 As Glen Coulthard has remarked, “What had begun in the fall of 2012 as an education campaign designed to inform Canadians about a particularly repugnant and undemocratic piece of legislation had erupted by mid-January 2013 into a full-blown defense of Indigenous land and sovereignty.”181
What is needed on the non-Indigenous side is another kind of decolonizing—an “unsettling,” as Paulette Regan suggests, of “the settler within.”182 That process can be assisted by the kind of radical “indigenizing” of Canadian educational systems that Len Findlay called for nearly two decades ago.183 This decolonizing and indigenizing implies a deeply unsettling process of collective self-examination. For as the philosopher Slavoj Zizek has proposed, in relation to the pattern in western Canada in which “a group of white men abduct, rape and kill a woman, and then deposit the mutilated body just within the reservation territory, thereby putting it legally under the jurisdiction of the tribal police, who are totally unprepared to deal with such cases”:
[T]hese acts of criminal violence are not spontaneous outbursts of raw brutal energy that breaks the chains of civilized customs, but something learned, externally imposed, ritualized: part of the collective symbolic substance of a community. What is repressed for the 'innocent' public gaze is not the cruel brutality of the act, but precisely its 'cultural', ritualistic character of a symbolic custom.184
Let us remember, in contrast, Taiaiake Alfred's proposal that the “regimes of conscience and justice” developed countless generations ago by Indigenous societies can become, in a post-imperial age, “the indigenous contribution to the reconstruction of a just and harmonious world.”185Whether, or to what degree, Canada is capable of moving in this direction and becoming the “fair country” imagined by John Ralston Saul186 remains an open question.
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1 Arundhati Roy, “What We Call Peace is Little Better Than Capitulation To a Corporate Coup,” excerpt from the 2004 Sydney Peace Prize Lecture, Sydney Morning Herald (3 November 2004), reproduced online at Common Dreams(3 November 2004), https://www.commondreams.org/views/2004/11/03/what-we-call-peace-little-better-capitulation-corporate-coup.
2 These human rights instruments would include the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT, 1984); the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW, 1990); and the International Convention for the Protection of All Persons from Enforced Disappearance (CPED, 2006).
3 Stéphane Hessel, Indignez-vous! (Montpellier: Indigène éditions, 2010). The information about its sales are from Revue des Sciences Humaines, numéro 305 (janvier/mars 2012): 24, as cited by “Indignez-vous!” Wikipédia, https://fr.wikipedia.org/wiki/Indignez-vous_! (Accessed 6 April 2018.) The Wikipédiaarticle says there were translations into 34 other languages, but cites just fifteen of them.
4 See Omar Sabry, Torture of Afghan Detainees: Canada's Alleged Complicity and the Need for a Public Inquiry (Ottawa: Canadian Centre for Policy Alternatives/Rideau Institute on International Affairs, September 2015), http://www.rideauinstitute.ca/wp-content/uploads/2015/09/Afghan-Detainees-002.pdf; and Michael Keefer, “Prime Minister Stephen Harper and Canadian War Crimes in Afghanistan,”Centre for Research on Globalization (24 April 2011), http://www.globalresearch.ca/index.php?context=va&aid=24473; also available at http://www.michaelkeefer.com/blog/2015/9/15/prime-minister-stephen-harper-and-canadian-war-crimes-in-afghanistan.
5 See Yves Engler and Anthony Fenton, Canada in Haiti: Waging War on the Poor Majority(Vancouver: Red Publishing, and Black Point, N.S., and Winnipeg: Fernwood Publishing, 2005); Jeb Sprague,Paramilitarism and the Assault on Democracy in Haiti (New York: Monthly Review Press, 2012), pp. 201-73; and Michael Keefer, “Dignity of the Haitian Women (and Canada's Shame),” in Anna Pia De Luca, ed., Investigating Canadian Identities: 10th Anniversary Contributions(Udine: FORUM, Editrice Universitaria Udinese, 2010), pp. 111-25.
6 See Abigail B. Bakan and Tasmeen Abu-Laban, “Israeli Apartheid, Canada, and Freedom of Expression,” and Edward C. Corrigan, “Israel and Apartheid: A Framework for Legal Analysis,” in Ghada Adeel, ed., Apartheid in Palestine: Hard Laws and Harder Experiences (Edmonton: University of Alberta Press, 2016), pp. 163-80, 213-46; and Michael Keefer, “Criminalizzazione della critica d'Israele in Canada,” trans. Oscar Mina, Eurasia: Rivista di Studi Geopolitici (17 maggio 2014), https://www.eurasia-rivista.com/criminalizzazione-della-critica-disraele-in-canada/; English text available at http://www.michaelkeefer.com/blog/2015/9/18/criminalizing-criticism-of-israel-a-hate-propaganda-trojan-horse-in-bill-c-13.
7 “Canada's Statement of Support on the United Nations Declaration on the Rights of Indigenous Peoples,” Indigenous and Northern Affairs Canada (12 November 2010, updated 30 July 2012), https://www.aadnc-aandc.gc.ca/eng/1309374239861/1309374546142.
9 See “First Ministers and National Aboriginal Leaders: Strengthening Relationships and Closing the Gap,” Kelowna, British Columbia (24-25 November 2005), http://www.health.gov.sk.ca/aboriginal-first-ministers-meeting; and “F[irst] M[inisters'] M[eeting] – Government of Canada invests in immediate action,” Prime Minister's News Release, Kelowna British Columbia (25 November 2005), http://epe.lac-bac.gc.ca/100/205/301/prime_minister-ef/paul_martin/06-01-14/www.pm.gc.ca/eng/news.asp@id=661.
10 Quoted by Erin Hanson, “The Residential School System,” Indigenousfoundations.arts.ubc.ca, http://indigenousfoundations.arts.ubc.ca/the_residential_school_system/. For another Indigenous response, see Lynda Gray, “Why silence greeted Stephen Harper's residential-school apology,” The Georgia Straight (12 June 2008), https://www.straight.com/article-150021/unyas-lynda-gray-responds-prime-ministers-apology.
11 See David Ljunggren, “Every G20 nation wants to be Canada, insists PM,” Reuters (25 September 2009), https://www.reuters.com/article/columns-us-g20-canada-advantages/every-g20-nation-wants-to-be-canada-insists-pm-idUSTRE58P05Z20090926.
12 Derrick O'Keefe, “Harper in denial at G20: Canada has 'no history of colonialism',” Rabble.ca (28 September 2009), http://rabble.ca/blogs/bloggers/derrick/2009/09/harper-denial-g20-canada-has-no-history-colonialism.
13 Gloria Galloway, “Ottawa taken to court over release of residential schools documents,” The Globe and Mail (3 December 2012, updated 26 March 2017), https://www.theglobeandmail.com/news/politics/ottawa-taken-to-court-over-release-of-residential-schools-documents/article5904543/.
14 James Anaya, Report of the Special Rapporteur on the rights of indigenous peoples: The situation of indigenous peoples in Canada, United Nations General Assembly, Human Rights Council, Twenty-seventh session (4 July 2014), http://unsr.jamesanaya.org/docs/countries/2014-report-canada-a-hrc-27-52-add-2-en.pdf, p. 15.
15 Ibid., pp. 1, 6.
16 Ibid., pp. 7-9.
17 The residential schools and the “Sixties Scoop” are discussed in the second part of this chapter. As will be seen below, Anaya's figure for the comparative rate at which Aboriginal or Indigenous children are being taken into care may err on the side of optimism.
18 Ibid., pp. 5, 10-11.
19 Ibid., pp. 11-19.
20 The exclusion of “reconciliation” from this sentence is deliberate. South Africa entered a formal process of reconciliation over the crimes of apartheid only after the apartheid regime had been ended. Given that the systems of governmentality and equity-market capitalism that have dispossessed and inflicted grievous harm upon Indigenous people remain in force and continue to cause harm, talk of reconciliation in Canada risks being tainted with hypocrisy.
21 Guy S. Goodwin-Will, “Introductory Note, Convention relating to the Status of Refugees,” Audiovisual Library of International Law, http://legal.un.org/avl/ha/prsr/prsr.html.
22 Hannah Arendt, The Origins of Totalitarianism (2nd ed., 1958; rpt. Cleveland and New York: Meridian Books, 1963), pp. 269-302.
23 Ibid., p. 281 n. 27.
24 Shin Imai, “Consult, Consent, and Veto: International Norms and Canadian Treaties,” in John Borrows and Michael Coyle, eds., The Right Relationship: Reimagining the Implementation of Historical Treaties(Toronto: University of Toronto Press, 2017), pp. 375-76.
25 Quoted from “White Paper, Red Paper,” ch. 8 of Stolen Lives: The Indigenous Peoples of Canada and the Indian Residential Schools, https://www.facinghistory.org/stolen-lives-indigenous-peoples-canada-and-indian-residential-schools/chapter-8/white-paper-red-paper.
26 Citizens Plus (Indian Chiefs of Alberta, 1970); online rpt. in Aboriginal Policy Studies 1.2 (2011): 188-281, https://journals.library.ualberta.ca/aps/index.php/aps/article/view/11690/8926, p. 189.
27 Harold Cardinal, The Unjust Society: The Tragedy of Canada's Indians(Vancouver: Douglas & McIntyre, 1969), p. 1.
28 See Âpihtawikosisân [Chelsey Vowel], “White paper, what paper?” âpihtawikosisan (22 August 2012), http://apihtawikosisan.com/2012/08/white-paper-what-paper/; Pam Palmater, “Flanagan National Petroleum Ownership Act: Stop Big Oil Land Grab,” Indigenous Nationhood (7 August 2012), http://indigenousnationhood.blogspot.ca/2012/08/flanagan-national-petroleum-ownership.html; and Michael P. C. Fabris, Beyond the New Dawes Act: A Critique of the First Nations Property Ownership Act (University of British Columbia MA Thesis, August 2016), https://open.library.ubc.ca/cIRcle/collections/ubctheses/24/items/1.0308596.
29 Fabris, pp. ii, 71-2.
30 “Fee simple” refers to the fullest possible form of ownership of real property (land, houses, etc.) in common law countries. (Other more conditional forms of ownership include condominium ownership, leasehold and life estate.)
31 Ibid., p. 39.
32 Daniel Fischlin and Martha Nandorfy, The Community of Rights: The Rights of Community(New Delhi: Oxford University Press, 2012), pp. 11, 63.
33 Peter Kulchyski, Aboriginal Rights Are Not Human Rights (Winnipeg: ARP Books, 2013), p. 20. (In quoting from Kulchyski's work, I have supplied capital letters and italics, which he eschews.)
34 Ibid., pp. 20-21.
35. Ibid., p. 22.
36. Citizens Plus, p. 194.
37. Alan Davies, ed., Antisemitism in Canada: History and Interpretation (Waterloo: Wilfrid Laurier University Press, 1992), “Introduction,” p. 6. It is, for example, an embarrassing fact that during the years leading up to World War II, Canada admitted, on a per capita basis, about one-fifth as many Jewish refugees from Nazism as did Britain, the US, and Australia (which were themselves far from generous in that respect).
38. The question of how terms like “genocide,” “colonial genocide,” or “cultural genocide” ought to be applied to the hard truths of Canada's settler-colonial past and the hard complexities of structures and forces intersecting in our settler-colonial present is vigorously debated. For a helpful survey of positions and analyses, see Andrew Woolford and Jeff Benvenuto, “Canada and Colonial Genocide,” Journal of Genocide Research 17.4 (2015), Special Issue on Canada and Colonial Genocide, 373-90. See also, for a sustained analysis of definitional issues, evidence, systemic intentionality, and the applicability to Canada of the UN Convention on Genocide, Tamara Starblanket, Suffer the Little Children: Genocide, Indigenous Nations and the Canadian State (Atlanta: Clarity Press, 2018). As my comments on the policy of “clearing the plains” and on the residential schools may suggest, I would prefer to describe both simply as genocide, without qualifying adjectives.
39 Truth and Reconciliation Commission of Canada, Canada's Residential Schools. The History, Part 1: Origins to 1939. The Final Report of the Truth and Reconciliation Commission of Canada, Volume 1 (Montréal and Kingston: McGill-Queen's University Press, 2015), p. 3.
40 Ibid., p. 4.
41 See John F. Leslie, “The Indian Act: An Historical Perspective,”Canadian Parliamentary Review 25.2 (2002), http://www.revparl.ca/english/issue.asp?art=255¶m=83.
42 This figure is given by John Douglas Belshaw, Canadian History: Post-Confederation (BC Open Textbook Project, 2016), 11.3: “Natives by the Numbers,” https://opentextbc.ca/postconfederation/chapter/11-3-natives-by-the-numbers/#return-footnote-2958-5. A census estimate of 1871 gives a figure of 102,000: see “TABLE of the Aboriginal Population of Canada [...] the whole referring to the year 1871,” Introduction to Censuses of Canada, 1665 to 1871,Statistics Canada, http://www.statcan.gc.ca/pub/98-187-x/2000001/4198819-eng.pdf. The best available evidence suggests that the pre-contact population of Canada was around 2,250,000: see Russell Thornton, American Indian Holocaust and Survival: A Population History Since 1492(Norman: University of Oklahoma Press, 1987), pp. 30-32. This would imply a population decline by the beginning of the twentieth century of more than 90 percent. (An early factor in that decline appears to have been the movement of epidemic diseases from areas of coastal contact with Europeans along Indigenous trade-routes into the interior, causing large declines in populations that did not directly encounter Europeans until much later.)
43 Duncan Campbell Scott, Deputy Superintendent General of Indian Affairs, “Testimony before the Special Committee of the House of Commons examining the Indian Act amendments of 1920.” Library and Archives Canada, Record Group 10, vol. 6810, file 470-2-3, volume 7, pp. 55 (L-3) and 63 (N-3). Quoted by Jennifer Pettit, in Belshaw, Canadian History: Post-Confederation, 11.7, “From Agricultural Training to Residential School”; also quoted in “Duncan Campbell Scott,” The Canadian Encyclopedia, http://www.thecanadianencyclopedia.ca/en/article/duncan-campbell-scott/. For a useful introduction to issues raised by the Indian Act, see Erin Hanson, “The Indian Act,”Indigenousfoundations.arts.ubc.ca, http://indigenousfoundations.arts.ubc.ca/the_indian_act/.
44 Quoted by Chief Joe Mathias and Gary R. Yabsley, “Conspiracy of Legislation: The Suppression of Indian Rights in Canada,” BC Studies no. 89 (Spring 1991): 35-36. Indigenous people thus could not retain legal counsel in support of their claims; nor could they legally raise money within their communities for internal organization.
45 John Milloy, “Indian Act Colonialism: A Century of Dishonour, 1869-1969,” Research Paper, National Centre for First Nations Governance/Centre National pour la Gouvernance des Premières Nations (May 2008), http://fngovernance.org/ncfng_research/milloy.pdf, pp. 1-2. There are also important continuities between the Royal Proclamation and the Indian Act—residing most importantly in the fact that the Proclamation envisages a vigorous ongoing project of European settlement.
46 Ibid., p. 2. Central to the Proclamation, as Milloy observes, “was the recognition of Indian land tenure within an over-arching Crown sovereignty; the recognition, in fact, of an Aboriginal right to land, that would be, thereafter, alienable only to the Crown by purchase.”
47 Shin Imai, “Consult, Consent, and Veto,” p. 372.
48 For detailed analysis, see Milloy, “Indian Act Colonialism,” pp. 4-11. A central aspect of this control was the determination, which remained in force until 1985, that women who married non-Indigenous men lost Indian status, as did their children.
49 Michael Dan, “The impact of colonization on the health of Indigenous people in Canada,” https://www.med.mun.ca/getattachment/ca784440-194d-4972-b070-e336f6db224c/Impact-of-colonization-on-the-health-of-Indigenous-people-in-Canada-(for-Memorial-U).pdf.aspx.
50 Belshaw, “Natives by the Numbers.” Belshaw remarks that demographers' estimates of population growth are complicated by changes to the legal definition of Indian status and by Métis self-identification. For discussion of these matters, see Chelsea Vowel, Indigenous Writes: A Guide to First Nations, Métis & Inuit Issues in Canada (Winnipeg: HighWater Press, 2016), pp.25-66.
51 See“Aboriginal Peoples in Canada: First Nations People, Métis and Inuit.” National Household Survey, Statistics Canada (2011), http://www12.statcan.gc.ca/nhs-enm/2011/as-sa/99-011-x/99-011-x2011001-eng.cfm; “Aboriginal peoples in Canada: Key results from the 2016 Census,” The Daily (25 October 2017), Statistics Canada, http://www.statcan.gc.ca/daily-quotidien/171025/dq171025a-eng.htm. (I have rounded off numbers to the nearest thousand.)
52 “Aboriginal peoples in Canada.” (Population figures are rounded off to the nearest thousand, and percentage increases to the nearest whole number.) Inuit Nunangat consists, from east to west, of Nunatsiavut (northern Labrador), Nunavik (northern Québec), Nunavut, and the Inuvialuit region in the northwest.
53 Jorge Barrera, “Indigenous population growing rapidly, languages surging,” CBC News (25 October 2017), http://www.cbc.ca/news/indigenous/indigenous-census-rapid-growth-1.4370727. (The last two words of this article's title—supplied, no doubt, by a CBC editor—are misleading.)
54 Noreen Willow, Paul Veugelers, Kim Raine, and Stefan Kuhle, “Associations between household food insecurity and health outcomes in the Aboriginal population (excluding reserves),” Health Reports 22.2 (2011), http://www.statcan.gc.ca/pub/82-003-x/2011002/article/11435-eng.htm; and Reading and Wien, Health Inequalities, p. 17. An earlier study found that 24 percent of off-reserve Indigenous people experienced food insecurity to the point of compromised diet: see Janet Che and Jiajian Chen, “Food insecurity in Canadian households,” Health Reports 12.4 (2001), http://www.statcan.gc.ca/pub/82-003-x/2000004/article/5796-eng.pdf.
55 “Federal party leaders urged to end drinking water crisis in First Nation communities once and for all,” Media Release, The Council of Canadians (13 October 2015), https://canadians.org/media/federal-party-leaders-urged-end-drinking-water-crisis-first-nation-communities-once-and-all.
56 Rachel Aiello, “Can PM Trudeau keep drinkable water promise to First Nations?” CTV News (28 December 2017), https://www.ctvnews.ca/politics/can-pm-trudeau-keep-drinkable-water-promise-to-first-nations-1.3736954.
57 Charlotte Reading, PhD, and Fred Wien, PhD, Health Inequalities and Social Determinants of Aboriginal Peoples' Health (Prince George, BC: National Collaborating Centre for Aboriginal Health, 2013), https://www.ccnsa-nccah.ca/docs/determinants/RPT-HealthInequalities-Reading-Wien-EN.pdf, p. 25.
58 Ibid., p. 13.
59 Thus, for example, the proportion of Indigenous people receiving social assistance grew from 36 percent in 1964 to 70 percent at the end of the 1970s; in 1980, “less than 50 percent of Indian houses were properly serviced compared to a national level of 90 percent”; and the Department attributed high levels of infant deaths “to respiratory ailments and infectious or parasitic diseases, reflecting poor housing, lack of sewage disposal and potable water, as well as poorer access to medical facilities.” Milloy, “Indian Act Colonialism,” p. 12.
60 Ibid., p. 13.
61 Teresa Evans-Campbell, “Historical trauma in American Indian/Native Alaska communities: A multilevel framework for exploring impacts on individuals, families, and communities,” Journal of Interpersonal Violence 23.3 (2008): 316-38. Amy Bombay, Kimberly Matheson and Hymie Anisman, in “The Intergenerational effects of Indian Residential Schools: Implications for the concept of historical trauma,”Transcultural Psychiatry 51.3 (2014): 320-38, have analyzed this latter pattern, with particular reference to the Canadian residential schools, in terms of “intergenerational stress proliferation,” in which parental stress caused by traumatic experiences gives rise to secondary causes of stress related to social disadvantages and altered parenting behaviours.
62 Patrick Wolfe, “Settler Colonialism and the Elimination of the Native,” Journal of Genocide Research 8.4 (December 2006): 388.
63 The Convention on the Prevention and Punishment of the Crime of Genocide defines as genocide five distinct acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”; the fifth such act is “Forcibly transferring children of the group to another group” (Article II [e]).
64 James Daschuk, Clearing the Plains: Disease, Politics of Starvation, and the Loss of Aboriginal Life (Regina: University of Regina Press, 2013), p. 100.
65 Gilbert King, “Where the Buffalo No Longer Roamed,” Smithsonian.com (17 July 2012), https://www.smithsonianmag.com/history/where-the-buffalo-no-longer-roamed-3067904/. US commanding officer General Philip Sheridan is quoted as saying that the 'sport' hunters who were wiping out the herds “are destroying the Indians' commissary. And [...] an army losing its base of supplies is placed at a great disadvantage.”
66 According to Andrew C. Isenberg, The Destruction of the Bison: An Environmental History, 1750-1920 (Cambridge: Cambridge University Press, 2000), pp. 130-31, an ensuing “spasm of industrial expansion was the primary cause of the bison's near extinction”; quoted by Daschuk, Clearing the Plains, pp. 227-28, n. 14.
67 Daschuk, Clearing the Plains, p. 93.
68 Daschuk, pp. xii, xv.
69 Ibid., pp. xix, xx.
70 Ibid., pp. 81, 88-89.
71 Ibid., p. 97.
72 Ibid., p. 98. The “medicine chest” is a reference to the medical supplies, including anti-smallpox vaccine, that were commonly held at Hudson Bay Company posts; in promising it, the government was committing itself to supplying the best available protections against pestilence and disease.
73 During the winter of 1873-74, for example, “Crees at the Victoria mission near the present Alberta-Saskatchewan border were reduced to eating 'their horses, dogs, buffalo robes and in some cases their snow shoes and moccasins and then died'” (ibid., p. 101).
74 Ibid., pp. 99-100.
75 Ibid., p. xix.
76 Ibid., p. 108.
77 Ibid., p. 123.
78 Ibid., pp. 151, 150. Daschuk gives an example provided bya missionary in Assissippi, who wrote in 1884 that people there were close to starvation, despite having threshed 2,000 bushels of grain, because farmers had to travel a hundred miles to Prince Albert to have their grain milled, “leaving nothing behind for their families but unground wheat.”
79 Maureen Lux, Medicine That Walks: Disease, Medicine, and Canadian Plains Native People, 1880-1940 (Toronto: University of Toronto Press, 2001), pp. 69-70; quoted by Daschuk, Clearing the Plains, p. 235, n. 209.
80 Daschuk, p. 177. See R. G. Ferguson, Studies in Tuberculosis (Toronto: University of Toronto Press, 1955), pp. 4-8.
81 Ibid., p. 108.
82 Ibid., p. 147.
83 Ibid., pp. 152-53. The attacks by Cree warriors were undoubtedly stimulated by early news of the Northwest Rebellion led by Louis Riel, but there does not appear to have been direct coordination.
84 “Battleford Hangings,” Saskatchewan Indian, vol. 3 n. 7 (July 1972): 5, http://www.sicc.sk.ca/archive/saskindian/a72jul05.htm.
85 John S. Milloy, A National Crime: The Canadian Government and the Residential School System, 1879 to 1986 (1999; 2nd ed., Winnipeg: University of Manitoba Press, 2017), p. xlii. Scott Trevithick provided a useful survey of early scholarship on the system in “Native Residential Schooling in Canada: A Review of Literature,” Canadian Journal of Native Studies 18.1 (1998): 49-86; in the following year, Milloy's book provided a much more complete analysis of the system than had previously been available.
86 Canada, Parliamentary Debates, House of Commons, 9 May 1883, 14: 1107-08 (MacDonald); quoted by Tamara Starblanket, “'Kill the Indian in the child': genocide in international law,” in Irene Watson, ed., Indigenous Peoples as Subjects of International Law (New York and Abingdon: Routledge, 2018), p. 179.
87 Quoted by Brian Titley, A Narrow Vision: Duncan Campbell Scott and the Administration of Indian Affairs in Canada (Vancouver: University of British Columbia Press, 1986), p. 78. Titley adds that Reed believed school graduates “should not be permitted to return to their reserves. He hoped instead that they would be hired out to the white settlers who were entering the territories in increasing numbers.”
88 Duncan Campbell Scott, “Indian Affairs, 1867-1912,” Duncan Campbell Scott: Addresses, Essays, and Reviews, ed. Leslie Ritchie (2 vols., University of Western Ontario: Canadian Poetry Press, 2000), vol. 1, pp. 205-06. Scott hoped to counter “the dangerous period of renewed contact with the reserve” by means of a “simplified” and “practical” curriculum, and a parting grant “of cattle or horses, implements, tools and building material” to male pupils, and of “domestic articles” to former female pupils chosen for them in “arranged” marriages. (Such grants were made to a very small proportion of ex-pupils and cost the DIA, on average, just over $100 each.)
89 A recognition of that vulnerability is implicit in an anomaly noted by David Macdonald and Graham Hudson in Section 318 of Canada's Criminal Code, which defines the punishment for advocating or promoting genocide. Subsection 2 of Section 318, while derived from Article 2 of the UN Convention on Genocide, omits its clauses (b), (d), and (e). When Parliament ratified the Convention in 1952, it excluded those clauses from the necessary additions to the Criminal Code on the grounds that matters such as the forcible removal of children are not relevant to Canada. The bad faith of this move is transparent. When in 2000 Parliament passed the Crimes Against Humanity and War Crimes Act, it made the 1998 Rome Statute of the International Criminal Court (which includes the Convention on Genocide's full definition of genocide) a part of Canadian statutory law. But Parliament explicitly excluded the possibility of retroactive prosecutions for genocidal crimes committed in Canada prior to 1998. See MacDonald and Hudson, “The Genocide Question and Indian Residential Schools in Canada,” Canadian Journal of Political Science/Revue Canadienne de Science Politique 45.2 (June 2012): 434-48.
90 Milloy, A National Crime, pp. 62-63.
91 Maureen K. Lux, “Bryce, Peter Henderson,” Dictionary of Canadian Biography, vol. 16 (University ofToronto/Université Laval, 2003-), http://www.biographi.ca/en/bio/bryce_peter_henderson_16E.html.
92 Dean Neu and Richard Therrien, Accounting for Genocide: Canada's Bureaucratic Assault on Aboriginal People (Black Point, N.S.: Fernwood Publishing, 2003), p. 7.
93 Robyn Bourgeois, Review of Dean Neu and Richard Therrien, Accounting for Genocide: Canada's Bureaucratic Assault on Aboriginal People, H-Genocide, H-Net Reviews (August 2007), http://www.h-net.org/reviews/showrev.php?id=13531. A 1968 report on the residential school system declared, in a passage focussing on the early post-WW II years, that neither the churches nor the DIA “appeared to have had any real understanding of the needs of the children [....] The method of financing these institutions by per-capita grants was an iniquitous system which made no provision for the establishment and maintenance of standards, even in such basic elements as staffing and clothing” (quoted by Milloy, A National Crime, p. 269).
94 Milloy, A National Crime, pp. 78-84, 259-63. Milloy mentions an inspection of twenty-one schools in Saskatchewan and Alberta carried out in 1908 by F. H. Paget: “Paget's report revealed that the schools ran the gamut from good to deplorable. The majority—fifteen out of the twenty-one—were in the latter category” (p. 82).
95 Ibid., pp. 83-93, 96-101, 261-62.
96. Ibid., pp. 109-24, 262-68.
97 Ibid., pp. 96-101, 105-06.
98 Ibid., pp. 130-31, 135-36, 176-80.
99 Ibid., pp. 129, 135-36, 138-49, 279-88.
100 Ibid., p. 295. The words “the silent tortures” are quoted from a statement sent in September 1992 by Grand Chief Edward John to then-Minister of Justice Kim Campbell.
101 Ibid., pp. 138-54, 288-90. See also, on this subject, Roland Chrisjohn and Sherri Young, The Circle Game: Shadow and Substance in the Residential School Experience in Canada (Penticton, BC: Theyfus Books, 1997). Continuing efforts by government authorities to withhold documents are mentioned below.
102 Scott produced eight collections of poetry, some of which were published in the US and reviewed in periodicals in Britain and the US. In an anthology published c. 1919 in The Kings Treasuries of Literature—Later Modern Poetry, ed. Guy N. Pocock (New York, London and Toronto: E. P. Dutton and J. M. Dent, n.d.)—the page facing the title page carries a handsome etched portrait of “D. Campbell Scott” with a background of tall conifers and jagged mountains.
103 In addition to co-editing the Makers of Canada series, Scott wrote a biography of John Graves Simcoe for the series. He published two other books of non-fiction and several collections of short fiction, and also wrote three plays and a posthumously published novel.
104 The term, coined by Malcolm Ross in the introduction to Poets of the Confederation (Toronto: McClelland and Stewart, 1960), refers to poets—Sir Charles G. D. Roberts, Archibald Lampman, Bliss Carman, and Scott—born around the time of Confederation and regarded as the first English-Canadian poets who could stand comparison with contemporaries in Britain and the US.
105 Walter Benjamin, “Theses on the Philosophy of History,” VII, Illuminations, ed. Hannah Arendt, trans. Harry Zohn (1970; rpt. London: Fontana Books, 1973), p. 258.
106 Bryce had been President of the American Public Health Association in 1900; in 1904 he was elected Vice-President of the American International Congress on Tuberculosis.
107 Titley, A Narrow Vision, p. 83.
108 Quoted by Milloy, A National Crime, p. 77.
109 Peter H. Bryce, The Story of a National Crime: An Appeal for Justice to the Indians of Canada (Ottawa: James Hope & Sons, 1922), p. 4. See also M. Sproule-Jones, “Crusading for the Forgotten: Dr. Peter Bryce, Public Health, and Prairie Native Residential Schools,” Canadian Bulletin of Medical History 13.2 (1996): 199-224.
110 Milloy, A National Crime, p. 91.
111 Bryce, The Story of a National Crime, pp. 4-5. In 1907 Bryce had recommended reforms to both medical and pedagogical provisions for the schools; he proposed as well “That boarding schools [...] be established near the home reserves of the pupils,” and “That the government undertake the complete maintenance and control of the schools, since it had promised by treaty to insure such” (p. 4). In this and other reports he also urged increased spending and improvements in medical services.
112 Quoted by Maureen K. Lux, “Bryce, Peter Henderson,” Dictionary of Canadian Biography. Cannily citing the work of Dr. William Osler, Scott implemented “improved medical inspections upon enrolment, an increased per capita grant, and contracts with each school binding it to higher standards of sanitation and diet.” The increased funding was still insufficient, and the contracts (given Scott's very lax oversight) were largely meaningless.
113 Duncan Campbell Scott, Letter to D. MacKay: DCS to BC Indian Agent Gen. Major D. MacKay, 12 April 2010, Department of Indian Affairs Archives, RG 10 series; quoted by Wayne K. Spear, “Indian residential schools were 'really detrimental to the development of the human being',” Wayne K. Spear (10 March 2010), https://waynekspear.com/2010/03/10/indian-residential-schools-2/.
114 Thomas King writes, in The Inconvenient Indian: A Curious Account of Native People in North America (2012; rpt. Toronto: Anchor Canada, 2013), p. 114: “Final solution. An unfortunate choice of words. Of course, no one is suggesting that Adolf Hitler was quoting Scott when Hitler talked about the final solution of the 'Jewish problem' in 1942. That would be tactless and unseemly. And just so we're perfectly clear, Scott was advocating assimilation, not extermination. Sometimes people get the two mixed up.” Indeed: Scott appears to accept the deaths of children in his schools as a short-cut to his goal of a Canada with no unassimilated Indians, and thus no “Indian problem.”
115 Duncan Campbell Scott, “Indian Affairs, 1867-1912,” pp. 204-05. Scott would have known from Bryce's 1909 report that the tuberculosis epidemic continued to be devastating. That report revealed, as Titley writes, that “Of all the students who attended the Sarcee Boarding School between 1894 and 1908, 28 per cent had died, mostly from tuberculosis” (Titley, A Narrow Vision, p. 84).
117 What Scott calls close “habituating” in “infected and dangerous” buildings implies an awareness of Bryce's 1907 finding that (in Titley's words) “With only two or three exceptions, the windows in the dormitories were kept sealed during the seven colder months to save on heating costs. As a result, the air became progressively more foul, especially when infected students were present”(Titley, p. 84).
118 Bryce, The Story of a National Crime, pp. 7-8.
119 Bryce calculated that the Indian population, given its high birth rate, should have been expected to grow by 20,000 from 1904 to 1917—instead of which, due to a high death rate, it declined by 1,639 (p. 9).
120 Bryce noted that in 1912 “the death rate in many of the bands [whose data he examined] was as high as forty per thousand,” while the DIA's total expenditure on health amounted to “little more than $2 per capita (pp. 6-7).
121 Ibid., pp. 12, 14.
122 Ibid., pp. 12-13. Bryce blamed Scott in particular for interrupting the collection of statistical data: “[D]ue to the direct reactionary influence of the former Accountant and present Deputy Minister no means exists, such as is looked upon as elementary in any Health Department today, by which the public or the Indians themselves can learn anything definite as to the actual vital conditions amongst these wards of the nation” (p. 10).
123 Milloy, A National Crime, p. 133.
124 Ibid., pp. 138-40, 144-51.
125 See Milloy, A National Crime, pp. 149-50; and Peter Kulchyski, “'A Considerable Unrest': F. O. Loft and the League of Indians.” Native Studies Review 4.1-2 (1988): 95-117.
126 Bryce documented Scott's maneuver to prevent critical discussion of the residential schools at the annual meeting of the National Tuberculosis Association in 1910 by misleadingly promising DIA action along the lines Bryce had recommended (The Story of a National Crime, pp. 5-6); and Milloy quotes from a 1921 letter to Superintendent General Sir James Lougheed in which Scott smeared Frederick Loft (A National Crime, pp. 149-50). Scott's machinations also included blocking attempts in the early 1920s by the Grand River Haudenosaunee to appeal to the League of Nations against Canadian aggressions. See Grace Li Xiu Woo, “Canada's Forgotten Founders: The Modern Significance of the Haudenosaunee (Iroquois) Application for Membership in the League of Nations,” LGD: Law, Social Justice & Global Development 2003 (1), sections 5-8, https://warwick.ac.uk/fac/soc/law/elj/lgd/2003_1/woo.
127 Quoted by Stan Dragland, Floating Voice: Duncan Campbell Scott and the Literature of Treaty 9 (Concord, ON: Anansi, 1994), p. 74.
128 Christopher Rutty and Sue C. Sullivan, This is Public Health: A Canadian History (Canadian Public Health Association), https://www.cpha.ca/sites/default/files/assets/history/book/history-book-print_all_e.pdf, ch. 5, 5.7.
129 “TB and Aboriginal people,” History of Public Health, Canadian Public Health Association/Association Canadienne de Santé Publique, https://www.cpha.ca/tb-and-aboriginal-people. A comparison with the countries now most afflicted by tuberculosis can show how scandalous these figures are. In Mozambique, the Democratic Republic of Congo, and Angola (countries recently or currently afflicted by proxy and civil wars), the death rates from tuberculosis are, respectively, 75, 67, and 64 per 100,000 population. See “Tuberculosis death rate in high-burden countries worldwide in 2016,” Statista: The Statistics Portal, https://www.statista.com/statistics/509760/rate-of-tuberculosis-mortality-in-high-burden-countries/.
130 Milloy, A National Crime, pp. 259-60; Truth and Reconciliation Commission of Canada, Canada's Residential Schools. The History, Part 2: 1939 to 2000. The Final Report of the Truth and Reconciliation Commission of Canada, Volume 1 (Montréal and Kingston: McGill-Queen's University Press, 2015), p. 208.
131 Milloy, A National Crime, pp. 260-61.
132 Ibid., p. 261.
133 Truth and Reconciliation Commission of Canada, Canada's Residential Schools. The History, Part 2: 1939 to 2000, pp. 147-48.
134 Ibid., p. 11.
135 Milloy, A National Crime, p. 214.
136 Patrick Johnston, Native Children and the Child Welfare System (Toronto: Canadian Council on Social Development and James Lorimer & Co., 1983).
137 H. PhilipHepworth, Foster Care and Adoption in Canada (Ottawa: Canadian Council on Social Development, 1980).
138 Finding Cleo team, “Saskatchewan's Adopt Indian Métis program,” CBC News (21 March 2018), http://www.cbc.ca/radio/findingcleo/saskatchewan-s-adopt-indian-métis-program-1.4555441.
139 Mark Melnychuk, “'They were treated like animals': How a Regina family was torn apart by the Sixties Scoop,” Regina Leader-Post (18 October 2017), http://leaderpost.com/news/local-news/they-were-treated-like-animals-how-a-regina-family-was-torn-apart-by-the-sixties-scoop.
140 Alanis Obomsawin's 1986 documentary film Richard Cardinal: Cry from a Diary of a Métis Child is based upon his diary and on interviews with his brother and the two boys' foster parents.
141 “Aboriginal Peoples in Canada: First Nations People, Métis and Inuit,” National Household Survey, Statistics Canada (2011), http://www12.statcan.gc.ca/nhs-enm/2011/as-sa/99-011-x/99-011-x2011001-eng.cfm.
142 Some analysts are now writing of a “Millennial Scoop”: see Chelsea Vowel [Âpihtawikosisân], “Our Stolen Generations,” Indigenous Writes, pp. 181-90.
143 Ian Mosby, “Administering Colonial Science: Nutrition Research and Human Biomedical Experimentation in Aboriginal Communities and Residential Schools, 1942-1952,” Histoire sociale/Social History 46, no. 91 (May 2013): 615-42. The experiments began in 1942, using as subjects some 300 people in Norway House, Manitoba, who researchers estimated were surviving on less than 1,500 calories per day. These experiments, as with the ones on residential school students, were conducted without the subjects' knowledge or informed consent, and involved withholding food and essential nutrients from people who were already malnourished.
144 Ashifa Kassam, “Canada sued over years of alleged experimentation on indigenous people,” The Guardian (11 May 2018), https://www.theguardian.com/world/2018/may/11/canada-indigenous-people-medical-experiments-lawsuit.
145 Maura Forrest, “A decade after payments began, residential school survivors still await payments,” National Post (2 August 2017), http://nationalpost.com/news/politics/a-decade-after-payouts-began-residential-school-survivors-still-await-settlements.
146 Jorge Barrera, “The horrors of St. Anne's,” CBC News (29 March 2018), https://newsinteractives.cbc.ca/longform/st-anne-residential-school-opp-documents.
147 Colin Perkel, Canadian Press, “Fight over secret residential school documents back in court,” Global News (12 March 2018), https://globalnews.ca/news/4077544/st-annes-residential-school-documents-court/; Perkel, Canadian Press, “Residential school victims lose document fight; Appeal court sides with Ottawa,” National Post (10 May 2018), http://nationalpost.com/pmn/news-pmn/canada-news-pmn/residential-school-victims-lose-document-fight-appeal-court-sides-with-ottawa.
148 Canadian Press, “Federal judge approves multi-million dollar Sixties Scoop settlement,” Toronto Star (11 May 2018), https://www.thestar.com/news/canada/2018/05/11/federal-judge-approves-multimillion-dollar-60s-scoop-settlement.html; Jason Warick, “'Justice was not served': Sixties Scoop survivors unhappy after approval of $875M settlement,” CBC News (11 May 2018), http://www.cbc.ca/news/canada/saskatoon/it-s-a-sham-survivors-blast-federal-court-hearing-into-875m-sixties-scoop-settlement-1.4658197.
149 “Chief Marcia Brown Martel joins Minister of Crown-Indigenous elations to announce a pan-Canadian resolution for children of the Sixties Scoop,” Ontario Sixties Scoop Steering Committee (6 October 2017), https://www.newswire.ca/news-releases/sixties-scoop-survivors-decade-long-journey-for-justice-culminates-in-historic-pan-canadian-agreement-649748633.html.
150 Leonard Monkman, “Sixties Scoop compensation excludes Métis, non-status Indigenous Peoples,” CBC News (6 October 2017), http://www.cbc.ca/news/indigenous/sixties-scoop-settlement-excluded-1.4344355.
151 “Sen. Murray Sinclair: Our children do not set out in life to fail,” Maclean's Magazine (11 January 2018), http://www.macleans.ca/opinion/sen-murray-sinclair-our-children-do-not-set-out-in-life-to-fail/. Sinclair's Ojibwe name means “One who Speaks of Pictures in the Sky.”
152 Daniel Schwartz, “Truth and Reconciliation Commission: By the Numbers,” CBC News (2 June 2015), http://www.cbc.ca/news/aboriginal/truth-and-reconciliation-commission-by-the-numbers-1.3096185. It appears that 1 in 26 of Canadians who served in that war died, and 1 in 25 residential school pupils. (The calculation involves dividing the approximately 150,000 children who were taken into the residential schools by the conservatively estimated 6,000 who died there.) This may seem a fulfilment of the November 1907 remark quoted above from Saturday Night. Other more sensational comparisons might be made—for example, between the death rate estimate for residential-school pupils tossed off by Duncan Campbell Scott (50 percent) and the percentage of soldiers of the Newfoundland Regiment killed at Beaumont Hamel on July 1, 1916, the first day of the Battle of the Somme (41.6 percent). The fact that any comparison can be made between soldiers killed in battle and children in the hands of an educational institution is itself an obscenity.
153 Important studies of the Harper years include Michael Harris, Party of One: Stephen Harper and Canada's Radical Makeover (Toronto: Viking, 2014); Brooke Jeffrey, Dismantling Canada: Stephen Harper's New Conservative Agenda (Montreal and Kingston: McGill-Queen's University Press, 2015); and Mark Bourrie, Kill the Messengers: Stephen Harper's Assault on Your Right to Know (Toronto: HarperCollins, 2015).
154 See Jeffrey, Dismantling Canada, pp. 297-302 (and for other examples of the application of Harper's “open federalism” agenda, pp. 275-97). For further details on the Kelowna Accords policy reversal, see Harris, Party of One, pp. 299-300, 309, 319-20.
155 Harris, pp. 358-60, notes a salient example of this.
156 “Private media ownership in Canada in 2015,” Canada Media Guild, http://www.cmg.ca/en/wp-content/uploads/2015/09/PrivateMediaOwnership2015.pdf.
157 Bill Gallagher, “Sharing Resources,” Interview on CBC Radio One New Brunswick (6 November 2013), http://www.cbc.ca/shift/2013/11/06/sharing-resources/.
158 See Miles Howe, Debriefing Elsipogtog: The Anatomy of a Struggle (Halifax and Winnipeg: Fernwood Publishing, 2015), pp. 133-34, for the full text of Chief Sock's declaration. Howe's book offers a finely textured combination of historical contextualizing, lucid analysis, and front-line reporting.
159 Annie Leeks, of Blake, Cassells & Graydon, “Canada: Frontenac Ventures Corporation v. Ardoch Algonquin First Nation [...],” Bulletin on Aboriginal Issues July 2008); reproduced online at Mondaq, http://www.mondaq.com/canada/x/63390/Public+Sector+Government/Frontenac+Ventures+Corporation+v+Ardoch+Algonquin+First+Nation+Platinex+Inc+v+Kitchenuhmaykoosib+Inn...
160 Howe (pp. 68-70) quotes the key passage in this decision, and comments on the very limited advantages (and significant disadvantages) that the “duty to consult” in a manner consistent with the “honour of the Crown” has brought to Indigenous people struggling to assert their rights against the interests of resource extraction corporations.
161 New Brunswick Commission on Hydraulic Fracturing – Volume I: The Findings (NB Commission on Hydraulic Fracturing, February 2016), p. 11, http://www2.gnb.ca/content/dam/gnb/Departments/en/pdf/Publications/NBCHF-Vol1-Eng-Feb2016.pdf.
162 Michael McClurg, “Do we need the 'rule of law' in New Brunswick to deal with native protesters?” Olthuis Kleer Townshend-LLP (23 October 2013), http://www.oktlaw.com/blog/do-we-need-the-rule-of-law-in-new-brunswick-to-deal-with-native-protesters/. [dead link]
163 Chelsea Vowel [Âpihtawikosisân], “The often-ignored facts about Elsipogtog,” Toronto Star (14 November 2013), http://www.thestar.com/opinion/commentary/2013/11/14the_oftenignored_facts_about_elsipogtog.html. See also “Resources on Elsipogtog,” Âpihtawikosisân: Law, language, life: A Plains Cree speaking woman in Montreal (23 October 2013), http://apihtawikosisan.com/author/apihtawikosisan/. Understandings of what precisely Aboriginal title to land implies have been evolving in Canadian jurisprudence. But unlike the system of Crown land, in which the government asserts ownership over land, has unconstrained control over development, and retains rents, mining royalties, and stumpage fees for itself, Aboriginal title entails (at the very least) full consultation with title-holders, and their right to a share of benefits ensuing from any development.
164 Report of the Royal Commission on Aboriginal Peoples, René Dussault, Georges Erasmus et al. (5 vols., November 1996), available online at Christian Aboriginal Infrastructure Developments, http://caid.ca/RepRoyCommAborigPple.html.
165 Report of the Ipperwash Inquiry, The Hon. Sidney B. Linden, Commissioner (4 vols., May 2007), available online at https://www.attorneygeneral.jus.gov.on.ca/inquiries/ipperwash/report/vol_1/index.html.
166 McClurg, “Do we need the 'rule of law'...?”
167 See Yale D. Belanger and P. Whitney Lackenbauer, eds., Blockades or Breakthroughs? Aboriginal Peoples Confront the Canadian State (Montreal and Kingston: McGill-Queen's University Press, 2015).
168 See Jody Porter and Ed Ou, “Children of the poisoned river,” CBC News (12 September 2017), http://www.cbc.ca/news2/interactives/children-of-the-poisoned-river-mercury-poisoning-grassy-narrows-first-nation/; and David Bruser and Jayme Poisson, “Ontario knew about Grassy Narrows mercury site for decades, but kept it secret,” Toronto Star (11 November 2017), https://www.thestar.com/news/canada/2017/11/11/ontario-knew-about-mercury-site-near-grassy-narrows-for-decades-but-kept-it-secret.html.
169 See Tzeporah Berman, “Canada's most shameful environmental secret must not remain hidden,” The Guardian (14 November 2017), https://www.theguardian.com/commentisfree/2017/nov/14/canadas-shameful-environmental-secret-tar-sands-tailings-ponds; and Amanda Lickers, “Kahsatstenhsera: Indigenous Resistance to Tar Sands Pipelines,” subMedia.tv, available at Vimeo (2015), https://vimeo.com/114154344.
170 See Elsie Sunderland and Trevor Bell, “Letter: The precautionary principle, methylmercury and Muskrat Falls,” St. John's Telegram (17 August 2016, updated 30 September 2016), http://www.thetelegram.com/opinion/letter-to-the-editor/letter-the-precautionary-principle-methylmercury-and-muskrat-falls-136819/; and Marilyn Boone, “Not just Muskrat Falls: Harvard study identifies higher health risk in 11 other hydro projects,” CBC News (9 November 2016), http://www.cbc.ca/news/canada/newfoundland-labrador/harvard-research-hydroelectric-projects-methylmercury-1.2879212.
171 See Charlie Angus, Children of the Broken Treaty: Canada's Lost Promise and One Girl's Dream (Regina: University of Regina Press, 2015). Attawapiskat also became the focal point of controversies over the inadequacy of federal funding for indigenous communities which were characterized by shameful misrepresentations on the part of the Canadian government and corporate media. See Samantha Helen Spady, Attawapiskat: The Politics of Emergency (University of Toronto MA thesis, 2013).
172 Jorge Barrera, “Aboriginal Affairs, Justice Canada gathered personal information on First Nations child advocate: privacy watchdog,” APTN National News (28 May 2013), http://aptnnews.ca/2013/05/28/aboriginal-affairs-justice-canada-gathered-personal-information-on-first-nations-child-advocate-privacy-watchdog/; Barrera, “Aboriginal Affairs 'retaliated' against First Nations child advocate over human rights complaint: Tribunal,”APTN National News (6 June 2015), http://aptnnews.ca/2015/06/06/aboriginal-affairs-retaliated-first-nations-child-advocate-human-rights-complaint-tribunal/.
173 Gloria Galloway, “Ottawa to overhaul provisions on First Nations reserves,” The Globe and Mail (Tuesday, Jan. 26, 2016, updated 27 January 2016), http://www.theglobeandmail.com/news/politics/indigenous-children-on-reserves-face-discrimination-from-ottawa-tribunal-rules/article28392603/. Government documents revealed an underfunding for welfare on reserves, as compared with provincial rates, of 22 to 34 percent.
174 Vicky Mochama, “Canada will party while indigenous kids are denied services,” Metro News Toronto (8 January 2017), http://www.metronews.ca/views/metro-views/2017/01/08/canada-will-party-while-indigenous-kids-are-denied-services.html. On continuing inequities in the provision of medical services, see Gary Geddes, Medicine Unbridled: A Journey Through the Minefields of Indigenous Health Care (Victoria, Vancouver, Calgary: Heritage House Publishing, 2017).
175 Julie Jai, “Bargains Made in Bad Times: How Principles from Modern Treaties Can Reinvigorate Historic Treaties,” in Borrows and Coyle., eds., The Right Relationship, p. 116.
176 Bill Gallagher, “Will the Canadian Native Legal Winning Streak Hit 200?” Bill Gallagher/Strategist/Lawyer/Author (4 August 2013), http://billgallagher.ca/2013/will-the-canadian-native-winning-streak-hit-200/.
177 Michael Coyle, “As Long as the Sun Shines: Recognizing That Treaties Were Intended to Last,” in Borrows and Coyle., eds, The Right Relationship, pp. 49-51. See also Michael Asch, On Being Here to Stay (Toronto: University of Toronto Press, 2017).
178 Andrew Crosby and Jeffrey Monaghan, Policing Indigenous Movements: Dissent and the Security State (Halifax and Winnipeg: Fernwood Publishing, 2018), pp. 3, 4, 2.
179 Taiaiake Alfred, Wasáse: Indigenous Pathways of Action and Freedom (Peterborough: Broadview Press, 2005).
180 See Pam Palmater, “Urgent Situation Report in Humanitarian Crisis in Canada,” and “What Is the Idle No More Movement ... Really?” in Indigenous Nationhood: Empowering Grassroots Citizens (Halifax and Winnipeg: Fernwood Publishing, 2015), pp. 64-72, 76-83.
181 Glen Sean Coulthard, Red Skin White Masks: Rejecting the Colonial Politics of Recognition (Minneapolis: University of Minnesota Press, 2014), p. 161.
182 Paulette Regan, Unsettling the Settler Within: Indian Residential Schools, Truth Tellings, and Reconciliation in Canada (Vancouver: University of British Columbia Press, 2011).
183 Len Findlay, “Always Indigenize! The Radical Humanities in the Postcolonial Canadian University,” Ariel 31.1-2 (January-April 2000): 307-26.
184 Slavoj Zizek, Against the Double Blackmail: Refugees, Terror and Other Troubles with the Neighbours (2016; rpt. London: Penguin, 2017), pp. 30-31. Zizek cites Wally T. Oppal, Commissioner, British Columbia, Forsaken: The Report of the Missing Women Commission of Inquiry(19 November 2012), http://www.missingwomeninquiry.ca/wp-content/uploads/2010/10/Forsaken-ES-web-RGB.pdf. Zizek's interpretation is reinforced by reference to the 2015 murder-trial acquittal, in Alberta, of a white man who had inflicted an 11-centimetre wound in the vagina of an Indigenous sex worker. The perpetrator's computer had a search history of torture-pornography, and the victim was incapacitated by alcohol, but the court accepted the defence's claim of an accidental injury inflicted during consensual sex. The judge created a Canadian precedent by allowing a preserved body part—the victim's vagina—to be viewed in court as evidence (behind a curtain, but with screened images shown to the jury). Zizek asks: “Does such a display not rely on the long tradition of treating indigenous people's bodies as specimens? Could we even imagine the opposite case, an upper-class white woman's torso displayed when the accused is a black or indigenous man?” (Zizek, pp. 33-34). Zizek's source is Kathryn Blaze Carlson, “Verdict in death of indigenous sex worker sparks rallies, calls for appeal,” The Globe and Mail (26 March 2015, updated 12 May 2018), http://www.theglobeandmail.com/news/national/verdict-in-death-of-indigenous-sex-worker-sparks-rallies-calls-for-appeal/article23651385/.
185 Taiaiake Alfred, Peace, Power, Righteousness: An Indigenous Manifesto (Don Mills: Oxford University Press, 1999), p. 6.
186 John Ralston Saul, A Fair Country: Telling Truths About Canada (2008; rpt. Toronto: Penguin Canada, 2009).