Still Colonizing after All These Years
Eberts, Mary, University of New Brunswick Law Journal
This paper began life as two lectures, given in Saskatchewan in 2012 while I was holding the Ariel F. Sallows Chair in Human Rights at the University of Saskatchewan. (1) I had been struck by parallels between the contemporary advocates of giving "Indians" fee simple interests in reserve land, (2) and the "enfranchisement" schemes which originated before Confederation, in which male Indians who had attained a certain level of accomplishment would be given interests in reserve land that would eventually ripen into fee simple title and be severed from the reserve; these men would become eligible to vote, and shed their Indian status altogether. (3) The similarity between the older enfranchisement plan and the contemporary scheme to divide reserves into fee simple parcels, suggested to me that the colonial era was not actually over in Canada. I decided to pursue this idea further when it met with interest from my two Saskatchewan audiences.
These explorations of past and present colonizing within the context of the Indian Act and its predecessors broadened to include far more than just the enfranchisement scheme and the modern-day fee simple proposals. It was necessary to set the inquiry against the overall historical background. The government of Canada pursued a staggeringly ambitious program of separating Indigenous peoples from their traditional territories, and acquiring those lands for the Crown. These lands were then either alienated to third parties for settlement, resource development, nation-building, or other government purposes, or retained as "Crown lands". The land acquisitions were accomplished in part through a program of Treaty-making with Indigenous peoples, particularly in Ontario and the west and north-west, but they also involved de facto acquisition or occupation, without going through the formality of making Treaties. Small tracts of land were "reserved" in various ways for Indigenous peoples (4); whether these lands were reserved under Treaty (5) or not, all of the reserves came to be administered under the federal Indian Act. The Indian Act, in effect, was the repository for the strategies of colonization, and carried them forward to the present day, where their vitality remains unabated. To be clear, I am not contending that we are now living in an era of neocolonialism, or some other post-colonial state, with colonizing machinery that resembles that of the past. Rather, I contend that the process of colonization which began hundreds of years ago is still going on, using the same strategies and many of the same tools developed in past centuries.
I begin this paper with a description of colonization, and in particular, of "internal colonization" which is central to the relations between what is now Canada and the Indigenous peoples who held this land before the arrival of incomers from Europe. I then sketch Canada's historic and continuing efforts to secure possession and control of Indigenous land, whether by way of the historical methods or contemporary processes modelled on them. I link the processes of land acquisition to the Indian Act, and apply the understanding of internal colonization to that statute. In that context, I look at not only in its provisions about reserve lands (affected by both the enfranchisement scheme of yore and modern day proposals for fee simple interests in reserve land), but also the definition of who is an "Indian" under the Act, which has served the colonizer's goal of reducing the Indian population. I argue that Canada is still actively practising internal colonization, trying to complete the job which was begun over a century and a half ago. Despite the occasional contemporary public disavowal of its old practices (6), Canada is still colonizing after all these years. (7)
The Royal Commission on Aboriginal Peoples (RCAP) comments on the variety of methods used by European powers to expand into the rest of the world. …