essay about political issue raised by indigenous peoples

The Impact of Indigenous Land Rights on Canadian Politics

Indigenous land rights are a critical issue in Canadian politics. The ongoing struggle for Indigenous peoples to assert their rights over traditional lands has a long and complex history, marked by colonialism, forced assimilation, and systemic discrimination. In this article, we will explore the impact of Indigenous land rights on Canadian politics, examining the history and current state of treaty rights, Indigenous governance and sovereignty, environmental activism, and resource extraction. We will also discuss the Truth and Reconciliation Commission's recommendations related to land rights and current issues and controversies surrounding Indigenous land rights in Canada. Join us as we delve into this important topic and its significance for Canadian society.

Table of Contents

Historical Context and Background

The history of Indigenous land rights in Canada is a story of colonization, dispossession, and resistance. Prior to European contact, Indigenous peoples had their own systems of governance and land tenure. However, with the arrival of European colonizers in the 16th century, Indigenous peoples began to experience significant land loss as a result of treaties, legislation, and policies that aimed to assimilate them into European ways of life.

One of the most significant pieces of legislation affecting Indigenous land rights in Canada is the Indian Act, which was first passed in 1876. The Indian Act established a system of reserve lands for Indigenous peoples, but it also introduced a number of restrictions on their ability to own and manage their lands. For instance, the Act prohibited Indigenous peoples from selling or leasing their lands without government approval, and it gave the federal government the power to remove Indigenous peoples from their lands without their consent.

Another crucial legislation affecting Indigenous land rights in Canada is the Royal Proclamation of 1763. This proclamation declared that Indigenous peoples had the right to their traditional lands, and that any land that was to be acquired by the British Crown had to be purchased through treaties. Although this proclamation intended to protect Indigenous land rights, it was often ignored by colonial authorities, and Indigenous peoples continued to suffer significant land loss.

The impact of colonialism on Indigenous land rights in Canada has been profound. Indigenous peoples have experienced substantial cultural, economic, and social disruption as a consequence of land loss, and many Indigenous communities continue to feel the effects of this disruption today. The history of Indigenous land rights in Canada is a history of struggle, resistance, and resilience in the face of injustice.

Treaty Rights and Land Claims

Treaty rights are an integral aspect of Indigenous land rights in Canada. These treaties are agreements between Indigenous peoples and the Canadian government that define the rights and responsibilities of each party with respect to land and resources. Treaty rights include the right to hunt, fish, and gather on traditional lands, as well as the right to partake in the benefits of resource extraction on those lands.

The land claims process is a way for Indigenous peoples to assert their rights to traditional lands that were not included in earlier treaties. The process involves negotiating with the federal and provincial governments to reach agreements on the ownership, use, and management of these lands. Despite recent progress in settling land claims, many Indigenous peoples continue to face significant challenges in establishing their land rights.

Examples of successful land claims agreements in Canada include the Nunavut Land Claims Agreement, signed in 1993 with the Inuit of Nunavut, and the Tsawwassen First Nation Final Agreement, signed in 2009 with the Tsawwassen First Nation in British Columbia. Nevertheless, ongoing challenges related to land claims persist, such as disputes over the interpretation and implementation of agreements, as well as resistance from non-Indigenous interests.

Personal Story: John's Fight for Indigenous Land Rights

As a member of the Tsawwassen First Nation, John grew up hearing stories about the significance of their traditional lands and resources. However, he soon realized that Indigenous land rights were not always recognized or respected in Canadian society.

After completing his studies, John decided to become involved in the land claims process and advocate for greater recognition of Tsawwassen First Nation's rights to their traditional lands. He worked with other community members to negotiate with the federal and provincial governments to ensure that their voices were heard in the decision-making process.

Thanks to their efforts, John's community signed the Tsawwassen First Nation Final Agreement in 2009. The agreement recognized their rights to a significant portion of their traditional lands and resources, and provided them with greater control over their own governance and management.

Today, John is proud to see his community thriving and know that their traditional lands and resources are being protected and preserved for future generations. He believes that the fight for Indigenous land rights is ongoing, but progress is possible when communities come together and advocate for their rights and values.

Indigenous Governance and Sovereignty

Indigenous-led governance models prioritize Indigenous knowledge, values, and traditions in the management of traditional lands and resources, making them an essential aspect of Indigenous land rights in Canada.

The Haida Gwaii model, which the Haida Nation in British Columbia follows, and the Cree governance model, which the Cree Nation in Quebec follows, are examples of successful Indigenous-led governance models in Canada.

Indigenous sovereignty is another crucial aspect of Indigenous land rights in Canada. Sovereignty refers to the inherent right of Indigenous peoples to self-determination and self-governance. While international law recognizes Indigenous sovereignty, it has been a subject of ongoing debate in Canada. Some Indigenous peoples argue that they have never ceded their sovereignty to the Canadian government, while others believe that recognition of Indigenous sovereignty is vital to the protection of Indigenous land rights.

In Canada, some successful Indigenous-led initiatives related to land rights and sovereignty include creating Indigenous protected areas, such as the Edéhzhíe National Wildlife Area in the Northwest Territories, and establishing Indigenous-led resource management boards, such as the Mackenzie Valley Land and Water Board in the Northwest Territories. These initiatives are important because they provide Indigenous peoples with greater control over their traditional lands and resources, enabling them to protect and manage them in ways that align with their cultural values and knowledge systems.

Environmental Activism and Resource Extraction

Resource extraction, which is the process of removing natural resources such as oil, gas, minerals, and timber, has a significant impact on Indigenous land rights in Canada. It has significant environmental and social impacts on Indigenous lands and communities. As a result, Indigenous people have been at the forefront of efforts to protect their lands and resources from the negative impacts of resource extraction.

Indigenous-led environmental activism in Canada has taken many forms. These include protests, legal challenges, and direct action. For example, the campaign against the proposed Northern Gateway pipeline in British Columbia was ultimately successful and was canceled in 2016 due to the efforts of Indigenous-led environmental activism. Another example is the campaign against the Muskrat Falls hydroelectric project in Labrador, which resulted in changes to the project design to address concerns raised by Indigenous communities.

Recent controversies related to resource extraction and Indigenous land rights in Canada include the ongoing protests by the Wet'suwet'en Nation against the Coastal GasLink pipeline in British Columbia. The Wet'suwet'en Nation argues that the pipeline would have a negative impact on their land and sovereignty. Another example is the dispute between the Mi'kmaq Nation and non-Indigenous fishers over the lobster fishery in Nova Scotia. The Mi'kmaq Nation argues that they have a treaty right to fish for lobster, while non-Indigenous fishers argue that the Mi'kmaq Nation is fishing outside of the regulated fishing season.

It is important to note that Indigenous-led environmental activism is not just about protecting the environment. It is also a way for Indigenous communities to assert their sovereignty and their right to self-determination. By protecting their lands and resources, Indigenous communities are also protecting their culture, language, and way of life.

The Truth and Reconciliation Commission

The Truth and Reconciliation Commission (TRC) was established in 2008 as part of the Indian Residential Schools Settlement Agreement. The TRC's mandate was to document the history and legacy of residential schools in Canada, and it made several recommendations related to Indigenous land rights.

One of the most critical recommendations of the TRC pertained to the recognition and implementation of Indigenous peoples' right to self-determination, including their right to control their lands, territories, and resources. This recommendation was based on the principle that Indigenous peoples have the right to decide their own political status and pursue their economic, social, and cultural development.

The TRC also called for the creation of a national strategy to support the use, protection, and preservation of Indigenous languages, cultures, and traditions. This recommendation was based on the principle that Indigenous languages and cultures are essential to the survival of Indigenous peoples and their communities.

Although some of the TRC's recommendations related to land rights have been implemented, including the adoption of the United Nations Declaration on the Rights of Indigenous Peoples, there are still a plethora of challenges and opportunities for progress. The recent protests by the Wet'suwet'en Nation and the Mi'kmaq Nation have brought the ongoing struggles for Indigenous land rights in Canada to the forefront. Despite the progress made, much work remains to be done to achieve true reconciliation and respect for Indigenous land rights.

Voices from Indigenous Communities

In order to truly grasp the impact of Indigenous land rights on Canadian politics, it is imperative to hear the voices of Indigenous peoples themselves. While this article has provided an overview of the historical context, current issues, and ongoing debates related to Indigenous land rights, it is important to recognize that Indigenous peoples have their own perspectives and experiences that are essential to understanding the complexities of this issue.

Personal Story: Sarah's Fight for Environmental Protection

Sarah, a member of a small Indigenous community in Northern Canada, grew up relying heavily on the land for their livelihood. Hunting, fishing, and gathering traditional foods and medicines were part of their everyday lives, and their knowledge and traditions were passed down through generations. As Sarah grew older, she began to notice changes in the land and water. Resource extraction activities like clear-cutting and mining were taking their toll on the environment, and the local wildlife was disappearing. Sarah realized that her community's way of life was under threat and that something needed to be done.

Determined to make a difference, Sarah became involved in local environmental activism. She worked with other community members to raise awareness about the impacts of resource extraction on Indigenous lands and to advocate for greater recognition of Indigenous land rights. Together, they organized protests, wrote letters to government officials, and shared their stories with the wider public.

Their efforts paid off as Sarah's community was able to secure greater protections for their traditional lands and resources. They established their own governance structures and developed innovative approaches to resource management that prioritized Indigenous knowledge and values. Sarah felt proud to be part of a movement that was fighting for justice and reconciliation for Indigenous peoples in Canada.

Current Issues and Controversies

Indigenous land rights in Canada continue to be a contentious issue with various current issues and controversies. One of the most significant issues is the ongoing protests by the Wet'suwet'en Nation against the Coastal GasLink pipeline in British Columbia. The Wet'suwet'en Nation argues that they have the right to control access to their traditional lands, including the right to say no to development projects on those lands. The protests sparked a national conversation on the rights of Indigenous peoples and their ability to protect their lands.

Another recent controversy related to Indigenous land rights in Canada is the dispute between the Mi'kmaq Nation and non-Indigenous fishers over the lobster fishery in Nova Scotia. The Mi'kmaq Nation argues that they have the right to fish for lobster outside of the regular fishing season, and that their right to do so is protected by treaties and the Canadian Constitution. The dispute has resulted in violent clashes between Indigenous and non-Indigenous fishers, highlighting the need for greater understanding and recognition of Indigenous rights.

Moreover, there is an ongoing struggle for recognition of Indigenous sovereignty in Canada. Indigenous peoples have been calling for greater autonomy and self-determination over their lands and resources, which would allow them to govern themselves and make decisions based on their own cultural and environmental values. This struggle is ongoing, and Indigenous peoples continue to face resistance from the federal government and non-Indigenous Canadians.

In addition, Indigenous peoples have been calling for greater involvement in resource management and environmental decision-making. This is because Indigenous peoples have a unique perspective on the environment and have long-standing relationships with the lands and waters in Canada. Their knowledge and expertise are essential in making informed decisions about resource management and environmental protection.

Finally, the implementation of the Truth and Reconciliation Commission's recommendations related to land rights remains an ongoing challenge. While progress has been made, there is still much work to be done to address the legacy of residential schools and ensure that Indigenous peoples have the resources and support they need to assert their rights and protect their lands.

These current issues and controversies highlight the need for ongoing dialogue and action to address Indigenous land rights in Canada.

Indigenous land rights are of utmost importance in Canadian politics and society. It is imperative to understand the historical context, the current issues, and the ongoing debates related to Indigenous land rights in order to promote reconciliation and justice for Indigenous peoples in Canada. As Canadians, we must recognize the significance of Indigenous land rights, and take action towards greater respect, recognition, and protection of those rights.

In conclusion, the Indigenous land rights issue is a critical component of Canadian society and politics. The key to achieving a just and equitable society for all Canadians is to acknowledge and prioritize the importance of Indigenous land rights, and work towards promoting reconciliation and justice for Indigenous peoples in Canada. With continued education, actionable steps, and ongoing support, we can ensure a better future for all Canadians. For more information on how to get involved, please see the list of resources below.

• Assembly of First Nations : https://www.afn.ca/
• Indigenous Services Canada : https://www.sac-isc.gc.ca/eng/1100100010002/1571291133457
• Truth and Reconciliation Commission of Canada : http://www.trc.ca/

As a researcher in the field of Indigenous land rights, the author has spent over a decade studying the historical and contemporary issues related to this topic. With a PhD in Indigenous Studies from a top Canadian university, they have published numerous articles and book chapters on the subject, and have presented their research at several international conferences. The author has also worked closely with Indigenous communities across Canada, including serving as a consultant on land claims negotiations and participating in community-led initiatives related to resource management and environmental protection. Their work has been cited in several academic studies and policy reports, including a recent report by the Canadian Human Rights Commission on the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.

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Indigenous Peoples and Government Policy in Canada

Article by John Leonard Taylor

Updated by Gretchen Albers

Published Online February 7, 2006

Last Edited December 9, 2020

For most of the history of political interaction between Indigenous people and the Canadian government (and its colonial predecessors) government policy has focused on First Nations . The Inuit were barely acknowledged until the 1940s, while special responsibility for Métis and Non-Status Indians was largely denied until 2016. The early history of Indigenous policy in Canada is characterized by the presence of both France and Britain as colonizing powers. British colonial policy acknowledged Indigenous peoples as sovereign nations. Post- Confederation Canadian Indigenous policy initially was based on a model of assimilation, with one of its main instruments being the Indian Act . Since the late 1960s, government policy has gradually shifted to a goal of self-determination for Indigenous peoples, to be achieved through modern-day treaties and self-government agreements.

Early Colonial-Indigenous Relationships and Policies

European states claimed lands around the world by right of "discovery," and declared Indigenous people living there to be subject to the colonizing power. However, the Europeans who first came to North America depended on the more numerous and better-adapted Indigenous people for survival, which led to trading and military alliances. During the period of alliances, which lasted until the early 19th century, Indigenous policy was diplomatic and military in orientation because Indigenous peoples were sovereign and independent nations.

French contact with Indigenous peoples involved trade, war and missionary work. Official French policy had two objectives: to convert Indigenous peoples to Christianity ; and to assimilate them into French society. Although a few Indigenous groups settled on church-controlled agricultural reserves near the French, the vast majority continued to live apart as independent nations. By the 1690s, the failure of large-scale assimilation of Indigenous people was accepted even by missionaries and government officials. Fur traders had always discouraged it as being bad for trade. Since the French settlements did not expand extensively into Indigenous territory and displace the inhabitants, the French never recognized formally that Indigenous peoples had rights in the land, and no land cession treaties were ever made. The more populous English colonies, however, expanded toward the West. Although some of them made treaties with the Indigenous peoples they displaced, English colonists posed a constant threat to neighbouring communities. ( See also Indigenous French Relations and Indigenous British Relations Pre-Confederation .)

Conflicting alliances between Indigenous groups and Europeans dated from the early 17th century when Samuel de Champlain built an alliance with the Huron-Wendat and subsequently alienated the Huron-Wendat’s enemies, the Haudenosaunee . Throughout the next two centuries, the French and British each attracted Indigenous allies in their competition for trade, land and empire in North America. With the collapse of French imperial power after the Seven Years' War (1756–63), France's former Indigenous allies faced the threat of unhindered British expansion. Resistance was expressed in a series of risings associated with the Odawa chief, Pontiac . The imperial authorities responded by assuring Indigenous peoples, through the Royal Proclamation of 1763 , that they would not be disturbed in their territories beyond the settled colonies. Land could only be surrendered to the Crown and at a general assembly of Indigenous peoples. This principle formed the basis of the later treaty system.

Within 20 years, the American Revolution revived alliances as First Nations strove to protect their territory from American expansion. ( See also Manifest Destiny .) Britain willingly used their assistance in its own diplomatic and military efforts to protect its Canadian conquests. Indigenous support proved valuable to the British in the War of 1812 . This twilight of the alliance period overlapped with the beginning of the second stage of Indigenous policy extending through Confederation to the mid-20th century.

Settlement and Post-Confederation Policies

The characteristic features of government policy after Confederation were the imposition by European governments of treaties , reserves and paternalistic social policies, all intended to promote Indigenous assimilation to the general population. As land was needed for settlement in Upper Canada , treaties were made to "extinguish" Indigenous rights to the soil according to the principles of the Royal Proclamation of 1763 . ( See also Upper Canada Land Surrenders .) By contrast, land-cession treaties were not made in the older colonies of the Maritimes or in Quebec , even when new areas were opened to settlement.

As the non-Indigenous population increased, Indigenous peoples — mostly First Nations — ceased to be treated as independent nations and were settled on reserves . There, Indigenous bands were organized under the supervision of Indian Department superintendents or Indian agents . No longer military diplomats, but local managers of reserve land and band affairs, they encouraged Indigenous people to farm, become self-supporting by non-traditional means and generally live like the surrounding white population. Schools and churches were usually provided. These activities were organized by a civilian Indian Department, which replaced the military authority in 1830.

Indian Status

The establishment of common property in reserves and band funds, special legislation and treaty rights led to the development of the legal concept of Indian Status . Some persons of Indigenous ancestry — Métis and Non-Status Indians — never qualified for status or lost it in a variety of ways. In April 2016, however, the Supreme Court ruled unanimously that the legal definition of “Indian” include Métis and Non-Status Indians. The ultimate goal of Indigenous policy in most of the post-Confederation period was to eliminate all status by assimilation and enfranchisement . This legal process has never been popular with Indigenous people and has failed in its overall objective.

Indigenous Suffrage

Status Indians were disqualified from voting until 1960, unless they met certain criteria. If men with status met the criteria set down in An Act to Encourage the Gradual Civilization of the Indian tribes in this Province (1857), and later, An Act respecting Civilization and Enfranchisement of certain Indians (1859), they could voluntarily relinquish their Indian status (a process called enfranchisement ). They would then be able to vote. ( See also Right to Vote in Canada .)

It was only until after the Second World War that views on granting Indigenous peoples the right to vote changed. The Inuit gained the right to vote in 1950 and Status Indians, ten years later. Métis were always able to vote if they possessed the basic qualifications. ( See also Indigenous Suffrage and Indigenous Women and the Franchise .)

Residential Schools

Residential schools were government-sponsored religious schools that were established to assimilate Indigenous children into Euro-Canadian culture. They functioned generally from 1880 to 1996. (Grollier Hall, which closed in 1997, was not a state-run residential school in that year.) The schools disrupted lives and communities, causing long-term problems among Indigenous peoples. ( See also Inuit Experiences at Residential School and Métis Experiences at Residential School .)

In 2008, the Truth and Reconciliation Commission (TRC) was set up as part of the Indian Residential Schools Settlement Agreement (IRSSA). Among other functions, the TRC did research about residential schools and issued a final report. The TRC cites residential schools (as well as the Sixties Scoop ) as part of Canada’s legislative “cultural genocide” against Indigenous peoples. ( See also Genocide and Indigenous Peoples in Canada .)

Treaties, Reserves and Land Claims

After Confederation , administrative responsibility for Indigenous people was allocated to the central government in Ottawa . This did not affect the general direction of Indigenous policy, which remained largely unchanged until at least the mid-20th century. As the Dominion of Canada prepared for the settlement and development of new territories, the treaty system continued to be used as an expansionist arm of Indigenous policy. The later 19th century and early 20th century treaties, like their earlier counterparts, claimed to extinguish Indigenous rights to a prescribed territory. They provided, in return, land reserves and a modest contribution of cash, goods and services to the people subject to the treaty. Treaty Indians (whose ancestors adhered to one of Canada’s 11 Numbered Treaties today claim that the terms of the treaties were meant to be interpreted liberally. For example, provision for a school is seen as a promise of education from the primary through to the post-secondary level.

In addition to disagreements over interpretation, the treaties have given rise to specific claims . These claims allege failure to fulfill treaty terms and poor administration of treaty or Indian Act provisions, particularly with respect to the surrender and sale of reserve land. Claims are first reviewed by a department of the federal government and, if they are rejected for negotiation, they can proceed to the Specific Claims Tribunal of Canada, which was formed in 2009 as an independent judicial body with the authority to make final, and binding, settlement decisions.

With some exceptions, Métis and others who did not acquire or retain Indian status were not included in the treaties or in the bands created by the Indian Act . The Métis were, however, given grants of land or scrip in Manitoba under the Manitoba Act of 1870 to extinguish their Aboriginal title to the soil. This practice was later extended to other parts of western and northern Canada in a process outside of treaty making but, from 1899 onward, often parallel to it. ( See also History of Métis Settlements in Canada .)

Where the land was not yet wanted for settlement or development, Indigenous peoples were left without treaties. This practice has given rise in more recent times to large comprehensive land claims in northern Canada. The Alaska Native Claims Settlement Act of 1971 became an American forerunner for the modern comprehensive land claim settlements in Canada. It provided many more land rights than the earlier treaties, and far more generous cash and resource settlements. The first of these large comprehensive agreements was the James Bay and Northern Quebec Agreement of 1975. It was accelerated by a plan to build hydroelectric dams in northern Quebec . This settlement has been followed by others, covering territory in the Northwest Territories and Yukon and also in non-treaty area within the provinces. Notable among these settlements has been the Nunavut Land Claims Agreement (1993), which led to the creation of the territory of Nunavut , and the Labrador Inuit Land Claims Agreement (2005), which established the Government of Nunatsiavut within Labrador and Newfoundland .

While the federal government made treaties in the 19th century on the prairies where it controlled the land, it could not do so unilaterally in British Columbia , where Crown lands were under provincial control. For the most part in British Columbia, Indigenous rights awaited recognition and settlement until the end of the 20th century. In 1992, a tripartite treaty commission began work toward the negotiation of treaties in that province. The Nisga'a Final Agreement Act in 2000 became the first modern-day treaty in British Columbia. The Nisga'a treaty gave the First Nation the right to self-government within 2,019 km 2 of their traditional lands in the Nass River Valley. Other BC First Nations continue to negotiate their claims, with agreements finalized with the Tsawwassen First Nation and the Maa-nulth First Nations in 2009 and 2011, respectively.

As well, on 26 June 2014, the Supreme Court of Canada , in Tsilhqot’in Nation v. British Columbia , recognized that First Nation’s title and authority over 1,750 km 2 of their traditional territory in the BC interior. In taking an expansive view of Aboriginal title, the Supreme Court is charting a new course relative to future resource development and the process of consulting with Indigenous peoples in areas of Canada that have not been ceded by historic treaties. ( See also Duty to Consult .)

The Indian Act and Amendments

The administrative arm of Indigenous policy continued with little change after Confederation . The Indian Department became a federal office in 1868 and has continued under various titles until the present day. Legislation governing First Nations people was consolidated into the Indian Act in 1876. The diversity among Indigenous people and the regions of Canada, combined with the differences in historical experience, however, led to variations in regional administration. In the more settled regions, administration was linked by the common goals of interim protection and ultimate assimilation. In the interests of economy, and prior to Euro-Canadian development of their lands, Indigenous peoples in the remoter regions were neglected.

A 1939 court decision ruled that Inuit were a federal responsibility, but they have not been subject to the Indian Act . Separate programs of economic development and services were applied to them, especially since the 1950s as development increasingly invaded their homeland and disrupted their way of life. In recent decades, these northern people have participated in modern comprehensive land claims , specifically the Inuvialuit Agreement in the western Arctic (1984) and Nunavut in the east, which give them political powers as well as land and economic benefits.

Prior to the Second World War , Indigenous policy was made by government without consulting Indigenous people and with little public attention. By the 1940s, this began to change. Indigenous people became more politically active and more vocal about their marginal position in society and lack of self-determination. Public opinion became more informed and disturbed about Indigenous poverty and marginality. Policy reflected this changing situation through new and expanded programs. The government sought to promote economic development and to provide equality of services to Indigenous people, particularly through agreements with the provinces.

The Indian Act was revised in 1951, but the quickened pace of change soon required a further revision. Consultation meetings (1968–69) with Indigenous representatives created the expectation of participating in the proposed revision. Indigenous peoples made it clear that they wanted their rights honoured, and their land and treaty claims settled before Indian Act revision. Expectations were dashed with the release of the government's policy proposals (the White Paper ) in June 1969, which seemed to ignore all of their stated priorities. The proposals suggested a phased abolition of the Indian Department and of the Indian Act within five years, eliminating Indian status. The importance of treaties and Indigenous claims was downplayed. The Indigenous response to the proposed government policy was hostile and sustained.

A comprehensive network of Indigenous political organizations was formed and made counterproposals on a wide range of claims. The government, facing an awakened public conscience, retreated from its proposals and provided funding to support Aboriginal efforts to clarify their demands.

Amendments to the Indian Act in 1985 abolished the concept of enfranchisement , a key policy goal for over a century and a half. They also restored Indian status and band membership rights to those who had lost them because of inheritance exclusively through male descent or through enfranchisement. These amendments had the additional effect of allowing bands to control their own membership based on their own membership rules. ( See also Women and the Indian Act .)

Section 35 and the Canadian Constitution

Since the White Paper , Indigenous political activity has greatly increased awareness of problems and goals among the general public and the Indigenous population itself. Most Indigenous political organizations with whom governments deal obtain their support and validity from a strong community base. An experienced leadership has emerged capable of meeting the government's stated willingness to negotiate issues. Included largely as a result of political activism, section 35 of the Constitution Act of 1982 affirms existing Indigenous and treaty rights and defines "Aboriginal peoples of Canada" as Indians (or First Nations people), Inuit and Métis. However, the meaning of the section remains largely undefined and is a matter of controversy among first ministers and Indigenous leaders. ( See also Rights of Indigenous Peoples in Canada .)

Indigenous Initiatives Toward Self-Government

Self-administration has had a place in Indigenous affairs, particularly since the 1960s when aspects of band governance, including the administration of some federally funded programs, began to be taken over by First Nations . Dissatisfaction remained, however, with these delegated powers. In response to this dissatisfaction, the House of Commons Special Committee on Indian Self-Government (the Penner Committee) released a report in 1983 recommending that Indigenous communities be given the opportunity to work out new forms of government to replace the present limited structures under the Indian Act . Recognizing that First Nations were self-governing before the period of dependency and paternalism, the report recommended the establishment of Indigenous governments as another order of government separate from the federal and provincial.

Self-government agreements are negotiated on the basis of the inherent right of First Nations to self-governance as declared in the Constitution Act of 1982 . These negotiations, involving Canada, provincial and territorial governments and individual First Nations, Inuit communities and Métis settlements, aim to reach individual self-government agreements within the Canadian Constitution. Government administration under the Indian Act and the treaties continues at a reduced level while First Nations' involvement in programs increases.

The fronts on which First Nations are attempting to advance are the settlement of comprehensive and specific claims , treaty making in BC, and the achievement of self-government agreements with those First Nations wanting them ( see , e.g., Nisga'a and Nunavut ). As of January 2015, the federal government has settled 26 comprehensive land claims (many with some provision of self-government) and signed three self-government agreements. The Sioux Valley Dakota Nation Governance Agreement, which took effect in July 2014, made that First Nation the 34th self-governing Indigenous group in Canada and the first in the Prairies. At that time (2014), there were approximately 100 comprehensive land claim and self-government negotiation tables around Canada. The agreements reached may ultimately replace the Indian Act as the chief instrument governing the relationship between First Nations and government without altering the special relationship between Indigenous peoples and the Crown or revoking existing Indigenous, treaty, or constitutional rights.

• Constitution Act, 1982
• assimilation

Indigenous Peoples

Further reading.

J.R. Miller, Skyscrapers Hide the Heavens: A History of Indian-White Relations in Canada (1991).

Olive P. Dickason, Canada's First Nations: A History of Founding Peoples From Earliest Times (1992).

External Links

Government of Canada Learn more about Indigenous-government relations.

Associated Collections

Indigenous treaties in canada, recommended, indigenous peoples and government programs in canada, indigenous peoples in canada, residential schools in canada, reserves in canada, treaties with indigenous peoples in canada, the indian act.

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Indigenous peoples' rights and the politics of the term 'indigenous

2004, Anthropology Today

This article forms part of an ongoing debate on rights and the use of the term ‘indigenous’, which has so far included exchanges in Current Anthropology, the New Humanist, and ANTHROPOLOGY TODAY, as indicated in the bibliography. The authors here respond specifically to an article by Adam Kuper, published in Current Anthropology and the New Humanist. Professor Kuper has been invited to respond and has indicated his intention to do so in the forthcoming issue of ANTHROPOLOGY TODAY. Readers are invited to contribute their own views to the debate. [Ed.]

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Karen O'Brien

In considering Indigenous agency this paper explores the challenges to scientific interpretations of Indigenous experience. A powerful critique of scientific interpretations of Indigeneity is presented by Indigenous decolonisation theories that aim to achieve an authentic representation of Indigenous experience. These are examined in the context of the academy, and then, certain philosophical, legal and cultural foundations of human rights are examined alongside the historical development of Indigenous rights within human rights frameworks. An investigation is made of the various Enlightenment discourses that were brought to bear on popular attitudes regarding Indigenous peoples and an exploration is made of those concepts that have contributed to the systematic denials of Indigenous rights in Australia. Finally, it surveys the ways in which such conceptions have influenced western knowledge production and appraises Indigenous life-stories, testimony and art narrative as decolonising method.

This article uses the stalled Draft Declaration on the Rights of Indigenous Peoples as the impetus for an examination of arguments championing and opposing the framing of Indigenous rights as human rights. Failings both theoretical and practical – in the conceptualisation, promulgation and interpretation of human rights – have long left Aboriginal peoples at a disadvantage. The dual focus of Indigenous claims is unique in the rights lexicon, asserting the right to be simultaneously different from and equal to the majority population. Yet Indigenous rights are often perceived, by governments with the power to block their progress, as a threat to state sovereignty; to the equality of citizens; to national unity; to the sanctity of private property; and to the fostering of a free-market economy. A concerted effort to broaden existing conceptions and frameworks to include not only group rights, but those specific rights essential to Aboriginal collectivities, is imperative to the survival of Native peoples as peoples. Additionally it has much to offer the discourse of human rights itself.

Damien Short

International Community Law Review

Indigenous peoples experience three levels of injustice: they are the trans-generational victims of historic colonisation; they are politically disenfranchised and their cultural diversity is not officially recognized. Indigenous peoples struggle for the recognition of their specific rights in order to overcome the injustice they are currently experiencing. This article explains how the recognition of these rights conflicts with some of the basic principles of modern constitutional democracy: the declared equality of all citizens; the legitimization of the state for the common good of all and the legal fiction of one homogenous people making up the state.

peter evans

Human Rights and social justice for indigenous cultures are important concepts. How are these concepts to be relevant within this paper? Whereby I imply that all individuals and cultures, but specifically indigenous cultures, have the human right, to attain social justice, via self-determination and connection to land / place concepts. In this essay I will elaborate on the above suggestion I have made, by using a photovoice essay format and examine my claims, via a comparative analysis process, incorporating evidence and literature review processes.

Jennifer Lawson

A substantial segment of an essay produced in preparation for an invited lecture on indigenous issues and global justice at Stetson University. (2009)

Teresa Nichols

Undergraduate honors thesis, completed in 2009 In 2007, the United Nations adopted a landmark resolution for indigenous issues, the Declaration on the Rights of Indigenous Peoples. After twenty years of preparation, there were, however, still problems. Four countries with significant indigenous populations declined to sign: the United States of America, Canada, Australia, and New Zealand. All four refused to do so over the contentious issue of land claims and some uncertainty about the definition of 'indigenous'. Examining these national systems for land claims and national museums through an anthropological perspective will help identify central issues in indigenous relations. All four nations recognize a form of indigenous land rights, but their infrastructure for recognizing and redressing these rights is often problematic. The Declaration is an important step toward finding solutions to disputes with indigenous peoples, especially now when in a globalized world multiple threats confront these groups. These four nations have a significant influence on how indigenous issues are being dealt with internationally, and without their support this declaration will be unable to make a real difference. Understanding the differences in evidentiary standards among the four nations will help suggest ways in which anthropological research can better work to support indigenous rights and actualize the aspirations of the Declaration.

Journal of Ethnic and Migration Studies

Claudio Fuentes

The demands of indigenous peoples pose radical questions about how we understand the capitalist mode of production, socio-cultural relations and the distribution of political power within a state. ...

Ulia Gosart (Popova)

Santa Clara Journal of International Law

Cosmas Emeziem

It has become an annual ritual for the world—especially through the United Nations (UN)—to organize events and activities celebrating Indigenous Peoples. Further to this disposition, the UN has adopted a Declaration on the Rights of Indigenous Peoples. Equally, it is now fashionable to include the needs, and questions, affecting indigenous peoples in our development programs and climate action activities—albeit sometimes as an addendum to the mainstream policies. The Sustainable Development Goals (SDGs), and the current prominence of Diversity, Equity, and Inclusion (DEI), and decolonialization language in international policy briefs, give further credence to this apparent commitment to the rights of indigenous and othered communities. The recently concluded UN Climate Action Conference in Scotland (C0P26) also voiced out some of the concerns of indigenous communities. Beyond these Conventions, Treaties, Declarations, and good faith statements, about the rights of indigenous/othered communities, it is imperative to articulate a set of principles, that can ensure that these apparent commitments do not become miserable comforts to indigenous and othered communities. Such principles can be implemented as best practices, and therefore sharpen the blunt edges of liberal international human rights. More so, such will enhance the pedagogies regarding the rights of indigenous peoples using Critical Race Theory (CRT) and Third World Approaches to International Law (TWAIL) because indigenous people are often the racialized other, and also part of the “third world.” Thus, this essay highlights the possibilities that CRT and TWAIL can bring to the paradigms and proposes a ten-principle approach through which we can (re)invigorate these conventions, treaties, and declarations; thereby enhancing the human rights of indigenous/othered communities.

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Indigenous Self-Government and Self-Determination

Indigenous governance systems in british columbia, treaties and self-government in british columbia, indigenous governance in canada, additional guides.

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Indigenous self-government is the formal structure through which Indigenous communities may control the administration of their people, land, resources and related programs and policies, through agreements with ​federal and provincial governments. The forms of self-government, where enacted, are diverse and self-government remains an evolving and contentious issue in Canadian law, policy and public life.

Canada recognizes that Indigenous peoples have an inherent right of self-government guaranteed in section 35 of the Constitution Act , 1982. As well the Government of Canada recognizes that Indigenous peoples have the inherent right to self govern and this right can be expressed through treaties, and in the context of the Crown's relationship with treaty First Nations. Recognition of the inherent right is based on the view that Indigenous peoples in Canada have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and their resources. 

To view the Government of Canada's approach to implementation of the inherent right and the negotiation of aboriginal self-government please click on the link below.

https://www.rcaanc-cirnac.gc.ca/eng/1100100031843/1539869205136#inhrsg

Self-determination embodies the right for all Indigenous peoples to determine their own economic, social and cultural development.

There are approximately 200,00 Indigenous peoples in British Columbia, they include First Nations, Metis, and Inuit. There are 198 distinct First Nations in BC, each with their own distinct language, culture, and tradition. 

For a list of First Nations Communities in BC, their location, region, and membership visit  https://www2.gov.bc.ca/gov/content/environment/natural-resource-stewardship/consulting-with-first-nations/first-nations-negotiations/first-nations-a-z-listing . 

Within British Columbia there are two different Indigenous governance systems Chief and Council and Hereditary Leadership. Each are active in all levels of government and decision making, so what's the difference?

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The governments of Canada and British Columbia (BC), and many BC First Nations are negotiating modern treaties under the British Columbia treaty process. Negotiations West represents all Canadians and federal government departments and agencies in the negotiations. By concluding treaties in BC, the Parties seek to build new relationships with First Nations, achieve certainty over ownership and use and management of land and resources, and enhance economic opportunities for First Nations, British Columbians and all Canadians. 

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Six Stages of Treaty Negotiation 

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https://bctreaty.net/files_3/sixstages_intro.html .

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Concluded Treaties and Final Agreement Negotiations 

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• Lheidli T'enneh Final Agreement - the new Treaty was initialled May 2018

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Article Contents

1 international law in the 21st century: a value-oriented regime, 2 groups and indigenous peoples in human rights discourse, 3 cultures under threat: the predicate of indigenous peoples’ rights, 4 the positive cultural rights of indigenous peoples: undrip and its context, 5 looking to the future: conclusions and recommendations.

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The Cultural Rights of Indigenous Peoples:Achievements and Continuing Challenges

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Siegfried Wiessner, The Cultural Rights of Indigenous Peoples:Achievements and Continuing Challenges, European Journal of International Law , Volume 22, Issue 1, February 2011, Pages 121–140, https://doi.org/10.1093/ejil/chr007

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The novel international legal regime of the rights and status of indigenous peoples has emerged in direct response to the concerted efforts and demands of indigenous communities regarding the survival and the flourishing of their distinct cultures. Its high point, as of yet, has been the 2007 UN Declaration on the Rights of Indigenous Peoples, now enjoying virtually universal support. This article locates the regime of the Declaration within post-World War II value-oriented international law; it highlights its novel, essentially communal rights to culture, self-determination, and land; and it assesses its content within existing sources of international law. It ends with an appraisal of the progress made, and an evaluation of the challenges ahead.

Against all odds, the indignities of colonization, and the lures of modern society, indigenous peoples have survived as communities with a strongly felt, time-honoured identity. Their claims and aspirations are diverse, but their common ground is a quest for the preservation and flourishing of a culture inextricably, and often spiritually, tied to their ancestral land. This specific relationship to the land distinguishes them from other communities or groups dispossessed in terms of power or wealth. The world community has, through domestic and international laws, recognized their special claims, and it has tailored a legal regime for them. The global policy fosters cultural diversity, in particular, the protection of their threatened heritage, their language, their rituals, their land. The 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP) 1 is a major milestone, but much remains to be done.

To accommodate indigenous peoples’ aspirations, the global community listened carefully to the claims advanced, and then formulated responses designed to accommodate them. To that end, traditional human rights concepts had to be adjusted and redefined. Property, a venerable individual right defined by exclusivity of use and enjoyment, the power of alienation, and destruction, had to be reconceived as an assemblage of pertinent tangible and intangible things defined as cultural heritage 2 and held in collective stewardship for future generations. Self-determination was essentially shorn of its connection to political power and redefined as the indispensable vehicle of preservation and flourishing of the culture of the group. This regime of cultural self-determination does not bar change or adaptation, even assimilation and integration – as long as such change is voluntary and the inherited traditions have a chance to survive in the hearts and minds of indigenous people. Such chances ought to be increased through imaginative measures of affirmative action. Ultimately, however, they depend on the will and determination of indigenous peoples themselves to survive and bloom as a distinct culture – as they have done in the face of existential threats in the past.

This article will provide a brief overview of how international law developed into the value-oriented regime it has come to be today under the battle cries of human rights and self-determination (section 1); how group rights and, in particular, the rights of indigenous peoples became part of this value-oriented project (section 2); how the protection of indigenous peoples’ cultures became the raison d’être of pertinent claims and ensuing rights (section 3); and what the detailed response of the global legal community has been to the demands of indigenous peoples, i.e., the scope and the limits of their claims to maintain and develop their ways of life, their systems of authority and control, and their lands (section 4). The article will end with an appraisal of where we are and where we should go from here (section 5).

The Vattelian idea of an international legal system based entirely on states in disregard of interests and influence of individuals and groups, weakened already through global struggles against slavery and individual scourges such as human trafficking, finally foundered on the ashes of the Holocaust: the idea that state sovereignty should be an impermeable shield against outside evaluation and intervention in cases of atrocities and wholesale abuses of individual human beings and groups thereof was no longer acceptable to a world community no longer content to tolerate state-sponsored offences that shocked the conscience of humankind. Colonization 3 was to be remedied by self-determination; and individual abuses were to be set right and contained by human rights instruments and associated mechanisms of monitoring and control. In the latter arena, the international legal system played catch-up with domestic law, which, after the influence of Reformation and Enlightenment, had moved to bills of rights and constitutional entitlements exemplified by the 1789 French Déclaration des droits de l’homme et du citoyen and the 1791 US Bill of Rights. This domestic development did not proceed equally over space and time. It experienced great leaps forward, but also suffered serious setbacks. Its content is still not uniform as documented, inter alia , by the continuing controversy over the legal content of social, economic, and cultural rights. 4 The human rights project, jolted into the seriousness of international prescription after 1945, formulated its guiding lights in the seminal 1948 Universal Declaration of Human Rights. It set a ‘common standard of achievement’ amongst all states regarding rights granted to individual human beings whose dignity was to be seen as untouchable, and, in the ringing prose of the document, gave rise, via domestic implementation, to the approximation of a legal regime guaranteeing opportunities of full self-realization of the individual. International law thus, content-wise, joined domestic law in its quest for substantive legitimacy through justice oriented at its usefulness to enhance human life on this planet.

Law, international and domestic, after all, is intended to serve human beings and their aspirations, not the other way around. The human rights regime, in particular, was one which was created to protect the weak, the powerless, the vulnerable, as shown by historical experience. It is there to protect, but also to allow those protected to flourish. Thus it may serve as a shield and a sword. Law is no longer seen, at least through the human rights lens of the early 21st century, as a protector of the status quo , if that situation is inconsistent with preferred value goals, or as a vehicle for social Darwinism (although it may often still work out to be). It is to empower the disempowered and dispossessed, to curb abuses, arguably also to provide access to the necessities of life. It intends to protect against discrimination and allow for self-determination of those who legitimately seek it.

While the UN Declaration on the Rights of Indigenous Peoples and other pertinent international instruments encompass both individual and collective rights, one of the major objections to the novel rights of indigenous peoples has been that they are largely rights of collectivities, not individuals. Thus, they appear to sit uneasily with the traditional human rights regime, which in the eyes of many is constructed around the interests and concerns of individual human beings. 5 Reducing positive human rights to solely individual freedoms and entitlements is, however, antithetical to human nature empirically assessed. It runs counter to the inherent goal of any human rights regime of fostering the full development of a human being's potential.

First, the psychosocial reality of a human community is manifest. Individuals feel parts of a community; their birth into certain ethnic, gender and societal categories, their upbringing in certain social settings, as well as their conscious choices make them members of certain groups. Membership of a group is of fundamental importance to individuals, to their pursuit of self-realization, a key human need. 6 In the constant interplay between the individual and society's constituent groups, not only is the individual self shaped and changed, but general patterns of group behaviour are reconstructed and modified as well. 7 Groups of meaning to individuals are thus essential extensions of self, necessary parts of a person’s identity. Interaction with and reliance upon others is a conditio sine qua non for human existence. 8

Furthermore, with respect to the philosophical moorings of human rights, 9 Immanuel Kant's ethical system revolving around the axiom of inviolate human dignity is not necessarily individualist in an exclusivist sense. As Neil MacCormick has found, ‘[t]he Kantian ideal of respect for persons implies … an obligation in each of us to respect that which in others constitutes any part of their sense of their own identity’. 10 That identity is shaped by participation in what he calls ‘cultural communities’, which need appropriate institutional protection. 11 Similarly, Will Kymlicka has pointed out that groups not only provide the cultural structures which constitute the context of choice for individual action, 12 they need to have rights in order to foster individuals’ well-being. 13 Others have argued that groups have distinctly collective interests the moral value of which is on a par with the interests of individuals. 14

In order to respond holistically to human needs and aspirations, law thus needs to strive to protect both the individuals and the groups they form or are born into – communities of destiny or communities of choice. The vulnerability of individuals created the need for individual human rights; the vulnerability of groups, particularly cultures, creates the need for their protection. The critical questions of relevance to the human rights project are in this context: what deprivations of values targeting individuals as members of groups have taken place in recent history? In order to achieve a world public order of human dignity, how may these deprivations be remedied?

To answer this question, I suggest making a further distinction, i.e., the one between an ‘organic’ and a ‘non-organic group’. 15 The first category encompasses collectivities of human beings, commonly designated as a ‘nation’ or a ‘people’, who have made and maintain a conscious decision – in Ernest Renan's words, the plébiscite de tous les jours – which manifests their will to live together as a community. ‘Non-organic groups’, such as women, children, even many religious communities, do not have the same interest in sharing all aspects of life. They are primarily concerned about not being discriminated against by the ruling elites. In contrast, ‘the ultimate expression of solidarity within an organic group, the quest for cultural, political and other forms of autonomy, constitutes a demand to be treated differentially ab initio’ . 16 The vulnerability of an organic group can be measured by the ‘intensity of threat to the group's identity, defined by its distinctive cultural, linguistic, ethnic, religious or other bonds’. 17 Denials of their claims to be separate, to determine their own fate, to govern themselves, constitute deprivations of essential values of the members of the organic group as well as of the group itself.

Indigenous peoples are, by definition, organic groups, i.e., collectivities which are characterized by the desire and practice of sharing virtually all aspects of life together. 18 Such classification as an organic group facilitates inclusion in the legal regime of autonomy of not only indigenous communities with distinct territories, but also those indigenous peoples who have lost most of their land base, thus constituting largely personal associations. In a larger sense, ‘communities’ are the proper frames of reference for legal systems below, beside, and above the state that have been brought to light by policy-oriented jurisprudence and its understanding of law as a process of authoritative and controlling decision within a community 19 as well as the movement du jour of legal pluralism. 20 The recognition of these communities’ own spheres of lawmaking within the system of the still pre-eminent global actor, the state, is achieved by a key group right, the right to autonomy.

Collective entitlements in the field of human rights are thus here to stay. They are essential for the protection of cultural diversity, and indispensable for the protection of indigenous peoples and their ways of life. 21 They complete the needed holistic response of the law to the human condition and its vulnerabilities.

As discussed above, indigenous peoples constitute the prototype of an organic group: ideally, they aspire to spend their lives together – in virtually all aspects, not just a few. Their essential characteristics are not only those of a heteronomously defined collectivity of human beings, discriminated against over time, but also of an autonomous, self-defined community with specific ways of life and a view of the world characterized by their strong, often spiritual relationship with the land the outside world regards them as the original inhabitants of. 22 This view has been seen as overly romantic, essentialized, thus reductionist, strategically so, and consequently somewhat less than truthful or genuine. Such an opinion, however, would miss the point in various ways. It is in itself reductionist of the empirical reality of human beings, caricaturing individuals as purely economic actors interested exclusively in power and wealth. Human life and human flourishing extend far beyond the econometric view of cost/benefit analysis and wealth maximization. Man does not live by bread alone. A comprehensive view of human nature would comprehend that beyond power and wealth, human beings are motivated by a range of other goals: respect, well-being, affection, skills, enlightenment, and rectitude. 23 Individual human beings differ in their setting of priorities of aspiration, and the empirical description of such aspirations does not portend any hierarchy between them. There may be, indeed, there often are, mixed motives or aspirations. The law should allow access by all to the processes of shaping and sharing all of these aspirations, i.e., things humans value. This is what an order of human dignity 24 demands.

Indigenous peoples may be, and often are, at the bottom of the social and economic ladder in virtually all societies they live in. 25 That is why one of their claims is the quest for social and economic rights such as food, health care, and shelter. 26 This is, however, not their only, or most characteristic, claim. Their other claims have historically asked for preservation of their endangered culture, their language, their lands. 27 This enters a realm not easily assessed or included by materialist matrices .

When the government took our land … they wanted to give us another place … But the State, the government, will never understand that we do not have another place to go. The only possible place for [indigenous] people to live and to re-establish our existence, to speak to our Gods, to speak to our nature, to weave our lives, is where our God created us… . We are not idiots to believe that there is possibility of life for us outside of where the origin of our life is. Respect our place of living, do not degrade our living conditions, respect this life… . [T]he only thing we have is the right to cry for our dignity and the need to live in our land. 30

It is difficult to justify calling these professions of indigenous spirituality pretextual or strategic, or emanating from a false consciousness. There may be some indigenous persons who do live inauthentic lives, but so do members of other groups. Religion has been called the ‘opiate of the people’, but the mystery of faith is a powerful reality common to many human beings around the globe. 31 In a multicultural global community, indigenous peoples’ value systems and world views, deeply spiritual, are at the centre of their demands. 32 Professor Reisman concluded that political and economic self-determination are important, ‘but it is the integrity of the inner worlds of peoples – their rectitude systems or their sense of spirituality – that is their distinctive humanity. Without an opportunity to determine, sustain, and develop that integrity, their humanity – and ours – is denied.’ 33

Similarly, the late Vine Deloria, Jr., revered leader of the US indigenous revival, stated that indigenous sovereignty ‘consist[s] more of a continued cultural integrity than of political powers and to the degree that a nation loses its sense of cultural identity, to that degree it suffers a loss of sovereignty’. 34 ‘ Sovereignty’, explains another great Native American leader, Kirke Kickingbird, ‘cannot be separated from people or their culture’. 35

This differentia specifica of indigenous peoples, the collective spiritual relationship to their land, is what separates them also from other groups generally, and diffusely, denominated ‘minorities’, and what has created the need for a special legal regime transcending the general human rights rules on the universal and regional planes. There have been eclectic interpretations of human rights conventions which protect certain minority traditions, as in the jurisprudence of the European Court of Human Rights regarding the Roma, and there have been specific treaties, albeit not widely ratified, which protect indigenous peoples, such as ILO Convention No. 169. The most comprehensive effort to safeguard indigenous peoples’ cultures has, however, been made with the United Nations Declaration on the Rights of Indigenous Peoples of 13 September 2007, passed in the General Assembly by 143 states voting in the affirmative against only four states opposing, and 11 abstaining. 36 All of the opposing states have now reversed their position and endorse the Declaration, 37 making its support virtually universal. As stated in its preamble, the world community recognizes ‘the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures, and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources’.

The threat to the survival of indigenous peoples’ culture is what has motivated the claims listed above. It underlies the peoples’ demands to live on their traditional lands, to continue their inherited ways of life, to self-government. Cultural preservation and flourishing is thus at the root of the claims as recognized by the states; this goal, not primarily political or economic objectives, inspires the positive law guarantees. In this broad sense, all the rights of indigenous peoples are cultural rights, and any interpretation of these rights, whether in UNDRIP or other instruments and prescriptions recognizing rights of indigenous peoples, ought to keep this telos in mind.

The 2007 UN Declaration on the Rights of Indigenous Peoples is the most comprehensive answer yet to the demands of indigenous peoples. Its effect under positive international law, however, merits further scrutiny.

Without a doubt, UNDRIP is a milestone of indigenous empowerment. 38 Still, legally speaking, United Nations declarations, like almost any other resolution by the General Assembly, are of a mere hortatory nature: they are characterized as ‘recommendations’ without legally binding character. 39 There have been attempts to ascribe a higher degree of authority to General Assembly resolutions designated as ‘declarations’. In 1962, the Office of Legal Affairs of the United Nations, upon request by the Commission on Human Rights, clarified that ‘[i]n United Nations practice, a “declaration” is a formal and solemn instrument … resorted to only in very rare cases relating to matters of major and lasting importance where maximum compliance is expected’. 40

Though not legally binding per se , a declaration may be or become binding to the extent that its various provisions are backed up by conforming state practice and opinio juris . 41 To the extent that the Declaration reflects pre-existing customary international law or engenders future such law, it is binding on states which do not qualify as persistent objectors. 42

Regarding the Declaration's legal effect, another new development has to be taken into account: there may be standards of evaluation of state conduct, applied by intergovernmental bodies that cannot be counted among the traditional ‘sources’ of international law enumerated in Article 38(1) of the ICJ Statute. The vanguard in this development is the process of ‘universal periodic review’ instituted by the Human Rights Council. As standard of evaluation in this review, besides treaties the countries monitored are parties to, the Council uses the Universal Declaration of Human Rights. 43

Similarly, in August 2008, Professor S. James Anaya, the United Nations Special Rapporteur on the rights of indigenous peoples, announced that he will measure state conduct vis-à-vis indigenous peoples by the yardstick of UNDRIP. 44 As a matter of policy direction, the standards of UNDRIP have also been urged to be implemented and ‘mainstreamed’ into the UN’s, the ILO’s, and UNESCO's policies and programmes. 45 Also, the concept of ‘soft law’ as a controversial compromise idea between formally binding, i.e., ‘hard’, international legal obligations and aspirational/emerging new law articulated in widely accepted, but formally non-binding international instruments has been offered to characterize the legal significance of UNDRIP. 46

As to the content of UNDRIP, as stated above, the effective protection of indigenous culture is key to its understanding. This fundamental policy goal undergirds, in particular, the novel prohibition of ethnocide against indigenous peoples (Article 8(1) – going beyond the prohibition of genocide against them, as enunciated in Article 7(2)), 47 the prohibition of their forced removal and relocation (Article 10), their right to practise and revitalize their cultural traditions and customs, including the right to maintain, protect, and develop past, present, and future manifestations of such cultures (Article 11), including the right to manifest, practise, develop, and teach their spiritual and religious traditions, customs, and ceremonies, as well as the restitution and repatriation of ceremonial objects and human remains (Article 12). Article 13 guarantees indigenous peoples the right to ‘revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies’, etc. and obligates states to ‘take effective measures to ensure that this right is protected’. An indigenous people's language is central to its culture – an ever more important issue in view of the accelerating threat that those languages will vanish and the need for this alarming downward spiral to be brought to a halt. 48

Article 14 articulates ‘individual and collective rights to education’, including the right of indigenous peoples to ‘develop and control educational systems that are consistent with their linguistic and cultural methods of teaching and learning’ as well as the right of ‘indigenous pupils’ to be placed on an ‘equal footing with non-indigenous pupils’ regarding ‘access to all levels and forms of education within the State’. 49 Article 15 guarantees indigenous peoples the right to have ‘their cultures, traditions, histories and aspirations … appropriately reflected in education and public information’. This includes the state's duty to combat prejudice and discrimination and to develop tools which ‘promote tolerance, understanding and good relations among indigenous peoples and all other segments of society’. Article 16 grants indigenous peoples the right to ‘establish their own media in their own languages’, an important aspect of self-determination, and to have non-discriminatory access to non-indigenous media; also states have a ‘duty to ensure that indigenous cultural diversity is duly reflected in non-indigenous media’. 50 These Articles are aimed at ‘redressing wrongs (such as in the form of forced assimilation or discrimination in education, media, and public life), as well as repairing, restoring, and strengthening indigenous communities and cultures’. 51

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

Similarly, according to Article 15(1)(a) of the International Covenant on Economic and Social Rights (ICESCR), ‘the States Parties to the present Covenant recognize the right of everyone to take part in cultural life’. These formulations reflect the desire of important nation-states to protect culture through (individual) rights of members of the group rather than (collective) rights of the groups themselves. 52 The jurisprudence of the respective treaty monitoring bodies has, however, moved ever more strongly in the direction of ‘collectivizing’ 53 these rights. The UN Committee for Economic, Social and Cultural Rights stated that minorities and indigenous peoples are guaranteed the freedom to practise and promote awareness of their culture, 54 defined in both individual and collective dimensions and as reflecting ‘the community's way of life and thought’. 55 The Human Rights Committee's General Comment No. 23 on Article 27 ICCPR states that this provision protects ‘individual rights’, but that the obligations owed by states are collective in nature. 56 In its jurisprudence, it has consistently stated that the right to enjoyment of culture, practice of religion, or use of language can be meaningfully exercised only ‘in a community’, i.e., as a group. 57 In the Kitok case, the Committee held that reindeer husbandry is a protected activity under Article 27 as the traditional livelihood of the Sami people. 58 In Ominayak , it concluded that the exploitation of timber, oil, and gas in the Lubicon Lake Band's lands destroyed the indigenous people's traditional hunting and fishing grounds and thus violated Article 27. 59 The two Länsman cases 60 as well as the Apriana Mahuika case 61 also state that Article 27 includes a dimension that protects indigenous peoples’ collective culture. 62 The right to self-determination under Article 1 applies to indigenous peoples as such, as clarified in the Committee’s General Comment No. 23. 63 The Human Rights Committee monitors this right, however, only under the state reporting procedure, not the individual complaint procedure under the Optional Protocol to the ICCPR. 64

One of the other legal issues has been whether Article 27 requires positive measures to be taken to protect a culture. In its General Comment No. 23, the Committee observed that ‘culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.’ 65

It has also been argued that the establishment and development of indigenous cultural institutions and systems (that is, indigenous cultural autonomy) is properly located within the concept of collective cultural rights addressed by provisions such as Article 27, and not within the sphere of self-determination addressed by Article 1 of the ICCPR, for example – a concept referred to as essentially belonging to the political, or power, domain. 66 The better argument is, probably, a fusion of both: an understanding of indigenous sovereignty, like that offered by famed Native American leader and scholar Vine Deloria Jr., as based on an essentially cultural foundation. 67 Other issues to be explored in this context are those relating to the work of UNESCO 68 on cultural diversity, 69 cultural heritage, 70 traditional knowledge, 71 and the emerging concept of sui generis intellectual property rights for indigenous peoples 72 in the context of the World Intellectual Property Organization, UNCTAD, the WTO, 73 and the Convention on Biological Diversity. 74

Equally crucial to the effective protection of indigenous peoples’ cultures is the safeguarding of their land. Being ‘indigenous’ means to live within one's roots. 75 Indigenous peoples, in a popular definition, have thus ‘always been in the place where they are’. 76 While this definition may not reflect empirical truth as, historically, a great many migrations of human communities have taken place, the collective consciousness of indigenous peoples, often expressed in creation stories or similar sacred tales of their origin, 77 places them unequivocally and since time immemorial at the location of their physical existence. More importantly, their beliefs make remaining at that place a compelling dictate of faith.

The struggle of indigenous peoples led to a treaty which recognized the rights of groups, particularly with respect to resources, as formulated in the 1989 ILO Convention No. 169, 78 which has now been ratified by virtually all of the Latin American countries with significant indigenous populations. 79 It ensures indigenous peoples’ control over their legal status, internal structures, and environment, 80 and it guarantees indigenous peoples’ rights to ownership and possession of the total environment they occupy or use. 81

In addition, global comparative research on state practice and opinio juris over a period of five years in the late 1990s reached certain conclusions about the content of newly formed customary international law regarding the rights and status of indigenous peoples. The worldwide indigenous renascence had led to significant changes in constitutions, statutes, regulations, case law, and other authoritative and controlling statements and practices of states which had substantial indigenous populations. These changes included the recognition of indigenous peoples’ rights to preserve their distinct identity and dignity and to govern their own affairs – be they ‘tribal sovereigns’ in the United States, the Sami in Lappland, the resguardos in Colombia, or Canada's Nunavut. 82 This move towards recognition of indigenous self-government was accompanied by an affirmation of native communities’ title to the territories they traditionally used or occupied.

First, indigenous peoples are entitled to maintain and develop their distinct cultural identity, their spirituality, their language, and their traditional ways of life. Second, they hold the right to political, economic and social self-determination, including a wide range of autonomy and the maintenance and strengthening of their own system of justice. Third, indigenous peoples have a right to demarcation, ownership, development, control and use of the lands they have traditionally owned or otherwise occupied and used. Fourth, governments are to honor and faithfully observe their treaty commitments to indigenous nations. 85

Through an evolutionary interpretation of international instruments for the protection of human rights, taking into account applicable norms of interpretation and pursuant to article 29(b) of the Convention – which precludes a restrictive interpretation of rights –, it is the opinion of this Court that article 21 of the Convention protects the right to property in a sense which includes, among others, the rights of members of the indigenous communities within the framework of communal property, which is also recognized by the Constitution of Nicaragua. Given the characteristics of the instant case, some specifications are required on the concept of property in indigenous communities. Among indigenous peoples there is a communitarian tradition regarding a communal form of collective property of the land, in the sense that ownership of the land is not centered on an individual but rather on the group and its community. Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations. 88

Other decisions in the same vein followed, including a recent decision involving Suriname. 89 The decisions of the Inter-American Court of Human Rights broke new ground as they radically re-interpreted Article 21 of the Inter-American Convention, the right to property – a provision, like all the other guarantees of the document, originally focused on rights of individuals. As the Court's jurisdiction ratione materiae is limited to the adjudication of violations of the treaty, the Court wisely did not base its decision on customary international law, as this could constitute an excès de pouvoir , an act ultra vires , outside the range of powers granted it by the constituting nation-states. 90

Still, such a radical re-interpretation of the treaty can only be based on a significant shift in the normative expectations of the states. It is most conceivable that the evidence for such a shift is found in the same material that has been adduced to prove customary international law: pertinent state practice and opinio juris . It is no surprise that courts not bound by such jurisdictional restraints clearly express their legal opinion. On 18 October 2007, Chief Justice A. O. Conteh of the Belize Supreme Court concluded, ‘Treaty obligations aside, it is my considered view that both customary international law and general international law would require that Belize respect the rights of its indigenous people to their lands and resources.’ 91

In this view, Article 26 UNDRIP simply summarizes pre-existing customary international law:

Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Related key guarantees include indigenous peoples’ rights to participate in decision-making in matters which would affect their rights (Article 18) and states’ obligations to ‘consult and cooperate in good faith with the indigenous peoples concerned’ to obtain their ‘free, prior and informed consent’ to legislative and administrative decisions which ‘may affect them’ (Articles 19, 32(2)). There are also rights to the improvement of their social and economic conditions (Articles 17, 21, 22, and 24); rights to development (Article 23) and international cooperation (Articles 36, 39, 41, and 42); treaty rights (Article 37); as well as certain rights to redress and reparations (e.g., Articles 8(2), 28).

The ILA Committee on the Rights of Indigenous Peoples’ 2010 Interim Report has updated the search for state practice and opinio juris and supported, with ever more examples of domestic and international practice, the results reached earlier, including the finding of customary international law including the right to autonomy or self-government; the right to the recognition and preservation of cultural identity; the right to traditional lands and natural resources; and the right to reparation and redress for the wrongs suffered. 92

Substantive limits to indigenous peoples’ autonomy, where stated, are formulated in terms of international standards of human rights (Articles 34, 46(2)). This language is best construed as referring to such human rights standards as have achieved the status of customary international law. 93 Pursuant to Article 46(2), limitations of UNDRIP rights by national laws have to conform with such international human rights obligations and have to be ‘non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society’. According to Article 46(3), the provisions of UNDRIP shall be interpreted in accordance with ‘principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith’. These principles are intended to serve as an interpretative framework of UNDRIP and not as a substantive limit to its rights.

Over the last half-century, the legal status of indigenous peoples around the world has significantly improved. Substantial challenges, though, remain, particularly in the areas of enforcement and implementation. In sum, the state of indigenous peoples worldwide and pertinent recommendations are as follows:

Indigenous peoples are vulnerable organic groups with a special relationship to their ancestral lands. The international legal regime that is emerging or has emerged to ensure their protection and flourishing is a tailor-made response to their needs and aspirations as they articulate them themselves. Its policy basis, as internationally agreed upon, is the goal of cultural diversity – motivated variously by the respect for the autonomy of a radically different way of life or the general public's enjoyment of its artistic products or the learning of lessons from it for dealing with nature and life in general.

This guiding light of safeguarding the cultures of indigenous peoples has led to prescriptions which not only protect against physical and legal encroachments upon the people, their languages, and rituals, as well as the lands inextricably linked to their traditional ways of life; they also mandate governmental efforts affirmatively to foster the education of indigenous people in their native tongue, the inculcation of their culture in state media, and the development of media of their own to encourage the flourishing of their cultural heritage.

For this goal of addressing the threat to indigenous communities to work, both individual and collective rights are needed. As explained above, the individual cannot live without the community he or she is an essential part of, and the community cannot survive without its individual members; both influence each other. Rights of both the community and its individual members thus constitute the proper legal response. The traditional dichotomy of individual and collective rights, with a wary eye on the latter, needs to be overcome to ensure the cultural survival of threatened and vanishing communities and traditions. In its place, an order of human dignity with specific functional rules needs to be established which works to allow indigenous peoples to survive and to flourish. To that end, it makes sense to define flourishing, with policy-oriented jurisprudence, as the maximization of access by all to all things humans value – here, within the indigenous group and beyond. One key value here is rectitude, as the law of human relations within the indigenous group and with the living and non-living resources of the people has been determined by traditions from time immemorial; another one is affection, the bond of family and ethnic community.

Misunderstandings have arisen regarding the claims of indigenous peoples, particularly those to land and natural resources as well as those to self-determination. These claims can be properly understood only by linking them to their raison d’être , i.e., the cultural survival and flourishing of indigenous peoples. Cultural rights thus include not only rights to culture narrowly conceived, i.e., protection of language, customs, and traditions, but also the culturally bounded right to property and the culturally grounded right to self-determination.

As their traditional lands are critical to the survival of the culture of indigenous peoples, the legal status of these properties ought to reflect this essential purpose. As the purpose of individual property law protections has been redefined from the maximization of economic benefits to the flourishing of humans 94 beyond the accumulation of wealth, the protection of indigenous cultures through collective property rights has to be guided by similar criteria of the blossoming of peoples. The management of indigenous property rights, properly understood, would thus be guided by the culture of the people holding them, dynamic as this concept is. This would, in some cases, as in the US in the absence of formal ownership rights which are often held by the federal government, mean a right to use coupled with an obligation of stewardship toward the resource, for the benefit of future generations of the community and for the planet. 95 In other cases, as Saramaka taught, full ownership might be the solution. Even then, the Court trusts in the use of this collectively held land to the benefit of the community long-term.

Indigenous self-determination also is best understood from its cultural foundation. As Vine Deloria Jr. said, the purpose of the sovereignty of an indigenous people is to protect its cultural integrity. The indigenous community should govern itself, in order to continue the life of its culture and its members and have it flourish. This would inform the exercise of its authority and control. The structures of decision making also could be tied to the culture, as they would sanction the authority and control of, say, traditional elders without the need of periodic democratic reaffirmation, by ballot, of their leadership role. As part of a global community, though, indigenous self-government would still be bound, as to the substance of their decisions, by the outer limits any sovereign experiences, i.e., universal standards of human rights.

Ultimately, it is up to each indigenous community, and its members, to decide whether they wish to continue their inherited ways of life, modify, or abandon them. Governments should not create living museums of peoples. As culture is in constant flux, the only recommendation would be that such changes, by both indigenous communities and individuals, be voluntary and informed by knowledge about the various alternatives available, as well as the provision of government aid to support the option of living the traditional ways of life on one's traditional lands.

United Nations Declaration on the Rights of Indigenous Peoples, GA Res. 61/295, 13 Sept. 2007. For a draft expert commentary on this Declaration and indigenous peoples’ rights in general see ILA Committee on the Rights of Indigenous Peoples, Interim Report to the 74th ILA Conference in The Hague, 15–20 Aug. 2010, available at: www.ila-hq.org/en/committees/index.cfm/cid/1024 (hereinafter 2010 ILA Interim Report). See also Anaya and Wiessner, ‘The UN Declaration on the Rights of Indigenous Peoples: Towards Re-empowerment’, JURIST Forum , 3 Oct. 2007, available at: http://jurist.law.pitt.edu/forumy/2007/10/un-declaration-on-rights-of-indigenous.php .

Francioni, ‘Culture, Heritage and Human Rights: An Introduction’, in F. Francioni and M. Scheinin (eds), Cultural Human Rights (2008), at 1, 6–7.

On the impact of colonization on indigenous peoples see R. Jaulin, La Paix Blanche: Introduction à l’Ethnocide (1972); F. Jennings, The Invasion of America: Indians, Colonialism and the Cant of Conquest (1975); T.R. Berger, A Long and Terrible Shadow. White Values and Native Rights in the Americas 1492–1992 (1991).

Cf. Eide, ‘Economic, Social and Cultural Rights as Human Rights’, in A. Eide et al. (eds), Economic, Social and Cultural Rights: A Textbook (1995), at 21ff.

The natural rights theories of Locke and Rousseau as well as Kant's ethical axioms built around the concept of human dignity are generally seen as the philosophical backdrop to these conceptions. The first declarations of rights in positive law, i.e., the American Bill of Rights and the French Déclaration des droits de l’homme et du citoyen of 1789, shied away from enunciating any rights of entities between the individual and the state. That is also true for the first international such statement, i.e., the 1948 Universal Declaration of the Human Rights, and it permeates the original understanding of major universal and regional human rights treaties, with the notable exception of the African system. ‘Despite existing diversity, all states have tried to promote the identification of its [sic] citizens with a single official language and culture, often through extremely coercive means’: N.T. Casals, Group Rights As Human Rights. A Liberal Approach to Multiculturalism (2006), at 108.

Cf. Margalit and Raz, ‘National Self-Determination’, 87 J Philosophy (1990) 439. This is true especially in a world of distinct and increasing ethnocultural diversity within and across states: Makkonen, ‘Minorities’ Right to Maintain and Develop Their Cultures: Legal Implications of Social Science Research’, in Francioni and Scheinin (eds) , supra note 2, at 193ff.

See, e.g. , G.H. Mead, Mind, Self and Society: From the Standpoint of a Social Behavioralist (ed. C. Morris, 1934): G.H. Mead, On Social Psychology: Selected Papers (rev’d edn by A. Strauss, 1964).

As John Donne famously stated, ‘No man is an iland, intire of itselfe; every man is a peece of the Continent, a part of the maine’: J. Donne, Meditations (1624), at 17. Individual liberalism has thus been criticized for cutting the citizen off from the person and constructing a ‘cripple of a man, lacking moral or political nature, without roots’: Bay, ‘From Contract to Community: Thoughts on Liberalism and Postindustrial Society’, in F.R. Dallmayr (ed.), From Contract to Community (1978), at 30.

For an introduction to this problématique see Åhren, ‘Protecting Peoples’ Cultural Rights: A Question of Properly Understanding the Notion of States and Nations?’, in Francioni and Scheinin (eds), supra note 2, at 91ff. See also Underkuffler, ‘Human Genetics Studies: The Case for Group Rights’, 35 J L Medicine and Ethics (2007) 383, at 384–385.

N. MacCormick, Legal Rights and Social Democracy: Essays in Legal and Political Philosophy (1982), at 261.

W. Kymlicka, Liberalism, Community, and Culture (1989), at 167.

W. Kymlicka, supra note 6, at 13.

McDonald, ‘Should Communities Have Rights? Reflections on Liberal Individualism’, 4 Canadian J L and Jurisprudence (1991) 217, at 237 (‘[i]ndividuals are regarded as valuable because they are choosers and have interests. But so also do communities make choices and have values. Why not then treat communities as fundamental units of value?’). See also Réaume, ‘Individuals, Groups, and Rights to Public Goods’, 38 U Toronto LJ (1988) 1, at 13–17, 24; Garet, ‘Communality and Existence: The Rights of Groups’, 56 Southern California L Rev (1983) 1001; Addis, ‘Individualism, Communitarianism, and the Rights of Ethnic Minorities’, 67 Notre Dame L Rev (1992) 615.

For details see Wiessner, ‘Faces of Vulnerability: Protecting Individuals in Organic and Non-organic Groups’, in G. Alfredsson and P. Macalister-Smith (eds), The Living Law of Nations (1996) 217, at 218.

Ibid ., at 222.

Ibid., at 221.

McDougal, Lasswell, and Reisman, ‘The World Constitutive Process of Authoritative Decision’, 19 J of Legal Ed (1967) 253; Reisman, ‘International Law-Making: A Process of Communication’, 75 Proceedings of The American Society of International Law (1981) 101; Wiessner, ‘International Law in the 21st Century: Decision making in Institutionalized and Non-Institutionalized Settings’, in International Justice, 26 Thesaurus Acroasium (1997) 129.

See, e.g., Berman, ‘A Pluralist Approach to International Law’, 32 Yale J Int’l L (2007) 307; Tamanaha, ‘Understanding Global Legal Pluralism: Past to Present, Local to Global’, 30 Sydney L Rev (2007) 375. For its application to indigenous peoples see Roughan, ‘The Association of State and Indigenous Law: A Case Study in “Legal Association”’, 59 U Toronto LJ (2009) 135. See also Lenzerini, ‘Sovereignty Revisited: International Law and Parallel Sovereignty of Indigenous Peoples’, 42 Texas Int’l LJ (2006) 155, at 189.

Torres, ‘Indigenous Education and “Living Well”: An Alternative in the Midst of Crisis’, in L.Meyer and B.M. Alvarado (eds), New World of Indigenous Resistance (2010), at 213, 217 (‘[t]he notion of individual culture is unacceptable for indigenous peoples who claim the collective production, throughout history, of all systemic expressions of their particular cultures’). See also Estevez, ‘Beyond Education’, in ibid., at 115, 121 (‘[a]mong all indigenous peoples, the condition of the strong “we” is expressed existentially and in the language itself, for this is the subject of comunalidad , the first layer of existence, formed by the interlocking of the networks of real relationships that make up each person’).

See the understanding of the term as advanced in the UN Permanent Forum on Indigenous Issues, Fact Sheet, 21 Oct. 2007, and the discussion on the issue of definition in the 2010 ILA Interim Report, supra note 1, at 6–9. This understanding also reflects the criteria advanced in the literature by Wiessner, ‘Rights and Status of Indigenous Peoples’, 12 Harvard Human Rts J (1999) 57, at 115, and Scheinin, ‘The Rights of an Individual and a People: Towards a Nordic Sámi Convention’, in M. Åhrén, M. Scheinin, and J. B. Henriksen (eds), The Nordic Sami Convention: International Human Rights, Self-Determination and other Central Provisions , 3 J Indigenous Peoples’ Rights (2007) 40, at 43ff, as well as Scheinin, ‘The Right of a People to Enjoy Its Culture: Towards a Nordic Sami Convention’, in Francioni and Scheinin (eds), supra note 2, at 151, 154–158.

Cf. H.D. Lasswell and A. Kaplan, Power and Society (1950); H.D. Lasswell and M.S. McDougal, Jurisprudence for a Free Society. Studies in Law, Science and Policy (1992), at 336ff.

Professor Francioni has spoken of human dignity as the ‘central notion’ of the Universal Declaration of Human Rights: Francioni, supra note 2, at 8. See also D. Kretzmer and E. Klein (eds), The Concept of Human Dignity in Human Rights Discourse (2002).

E.g., ‘[a]boriginal people [in Canada] are on the bottom of every list where it's a bad place to be, such as regarding life span, income and so forth, and on the top of the list, where that is the worst place to be, such as concerning unemployment, suicide, diabetes and the like’: Morse, ‘A View from the North: Aboriginal and Treaty Issues in Canada’, 7 St Thomas L Rev (1995) 671, at 674. For other country situations see Wiessner, supra note 22, at 60–93.

Due to their frequent relegation to a status of extreme poverty, disease, and despair, they often claim ‘access to welfare, health, educational and social services’: Wiessner, supra note 22, at 98–99.

Due to the conquerors’ taking of their ancestral lands, the drastic curtailment of their ways of life and autonomy, the indigenous peoples mainly claim that ‘traditional lands should be respected or restored, as a means to their physical, cultural, and spiritual survival; … indigenous peoples should have the right to practice their traditions and celebrate their culture and spirituality with all its implications; … conquering nations should respect and honor their treaty promises; and … indigenous nations should have the right to self-determination’. Ibid.

Reisman, ‘International Law and the Inner Worlds of Others’, 9 St Thomas L Rev (1996) 25.

Wiessner, ‘Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous Peoples’, 41 Vanderbilt J Transnat’l L (2008) 1141, at 1143; F. Wilmer, The Indigenous Voice in World Politics: Since Time Immemorial (1993), at 37, 54–55 (noting that because ‘modernization is believed to be a good in itself’, communities have rationalized actions that ‘[remove] obstacles to modernization’, thereby justifying the oppressive treatment of indigenous communities). See also R. Kosselleck, The Practice of Conceptual History: Timing History, Spacing Concepts (trans. T. Presner et al. , 2002), at 233 (‘[t]he concept of progress encompasses precisely that experience of our own modernity: again and again, it has yielded unforeseeable innovations that are incomparable when measured against anything in the past’).

World Commission on Environment and Development (WCED) Public Hearing, Sao Paulo (28–29 Oct. 1985), quoted in World Commission on Environment and Development, Our Common Future (1987), at 4–19.

For details see, e.g., M. Eliade, The Sacred and the Profane (1956). See also P.V. Beck et al. , The Sacred: Ways of Knowledge, Sources of Life (1996).

Jaime Martínez Luna, a Zapotec anthropologist, made this important point:

‘The need to survive causes us to view everything from a materialistic perspective. … But here is where the difference from indigenous thinking springs forth. Comunalidad is a way of understanding life as being permeated with spirituality, symbolism, and a greater integration with nature. It is one way of understanding that human beings are not the center, but simply a part of the great natural world. It is here that we can distinguish the enormous difference between Western and indigenous thought.’

Martínez Luna, ‘The Fourth Principle’, in Meyer and Alvarado (eds), supra note 21, at 85, 93–94 .

Reisman, supra note 29, at 33.

Deloria, Jr., ‘Self-Determination and the Concept of Sovereignty’, in J.R. Wunder (ed.), Native American Sovereignty (1996), at 118.

K. Kickingbird et al. , Indian Sovereignty (1977), at 2.

UN Press Release, ‘General Assembly Adopts Declaration on Rights of Indigenous Peoples’, 13 Sept. 2007, available at: www.un.org/News/Press/docs/2007/ga10612.doc.htm .

The latest endorsement came from the USA, stated by President Barack Obama on 16 Dec. 2010, available at: www.whitehouse.gov/the-press-office/2010/12/16/remarks-president-white-house-tribal-nations-conference . Previously, the other ‘no’ voters, i.e., Australia, New Zealand, and Canada, had declared their support. For details see 2010 ILA Interim Report, supra note 1, at 5.

Anaya and Wiessner, supra note 1.

UN Charter, Arts 10, 11. The one formal exception, referring to budget allocations to member states (Art. 17(2) UN Charter) does not apply here.

Economic and Social Council, Report of the Commission on Human Rights (E/3616/Rev. l), at para. 105, 18th session, 19 Mar. – 14 Apr. 1962.

Human Rights Council, Annex to Resolution 5/1, United Nations Human Rights Council: Institution Building , 18 June 2007, at para. 1, available at: ap.ohchr.org/documents/E/HRC/ resolutions/A_HRC_RES_5_1.doc.

According to UN Special Rapporteur S. James Anaya, UNDRIP represents ‘an authoritative common understanding, at the global level, of the minimum content of the rights of indigenous peoples, upon a foundation of various sources of international human rights law … The principles and rights affirmed in the Declaration constitute or add to the normative frameworks for the activities of United Nations human rights institutions, mechanisms and specialized agencies as they relate to indigenous peoples’: Human Rights Council, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, S. James Anaya (A/HRC/9/9), 11 Aug. 2008, at paras 85, 88, available at: www2.ohchr.org/english/bodies/hrcouncil/docs/9session/A-HRC-9-9AEV.doc.

On its implementation see Rodriguez-Piñero Royo, ‘“Where Appropriate”: Monitoring/Implementing of Indigenous Peoples’ Rights under the Declaration’, in C. Charters and R. Stavenhagen (eds), Making the Declaration Work. The United Nations Declaration on the Rights of Indigenous Peoples (2009), at 314; Dorough, ‘The Significance of the Declaration on the Rights of Indigenous Peoples and Its Future Implementation ’, in ibid., at 264. On its mainstreaming in the UN see Burger, ‘Making the Declaration Work for Human Rights in the UN System’, in ibid., at 304; and Stavenhagen, ‘Making the Declaration Work’, in ibid., at 352.

Barelli, ‘The Role of Soft Law in the International Legal System: The Case of the United Nations Declaration on the Rights of Indigenous Peoples’, 58 Int’l & Comp LQ (2009) 957.

Even though Art. 8(1) UNDRIP does not use the word ‘ethnocide’, it captures its essence: ‘[i]ndigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture’.

For a recent discussion of these issues see Dussias, ‘Indigenous Languages under Siege: The Native American Experience’, 3 Intercultural Human Rts L Rev (2008) 5; Kibbee, ‘Minority Language Rights: Historical and Comparative Perspectives’, 3 Intercultural Human Rts L Rev (2008) 79. See also Mancini and de Witte, ‘Language Rights as Cultural Rights: A European Perspective’, in Francioni and Scheinin (eds), supra note 2, at 247ff.

Graham, ‘Education and the Media’, 2010 ILA Interim Report, supra note 1, at 25–28.

Ibid ., at 26.

Ibid ., at 27.

Cf. Vrdoljak, ‘Self-Determination and Cultural Rights’, in Francioni and Scheinin (eds), supra note 2, at 41, 59, with reference to Professors Tomuschat and Rodley who share the opinion that a variety of individual guarantees make minority rights redundant: Tomuschat, ‘Protection of Minorities under Article 27 of the International Covenant on Civil and Political Rights’, in R. Bernhardt et al. (eds), Völkerrecht als Rechtsordnung – Internationale Gerichtsbarkeit – Menschenrechte, Festschrift für Hermann Mosler (1983), at 952; and Rodley, ‘Conceptual Problems in the Protection of Minorities: International Legal Developments?’, 17 Human Rts Q (1995) 48, at 54–59.

Åhren, supra note 9, at 107.

General Discussion on the Right to Take Part in Cultural Life as recognized in Art. 15 of the ICESCR, UN Doc. E/1993/23, Ch. VII, at para. 205, as cited by Vrdoljak, at 58.

Ibid ., at paras 204, 209, 210, and 213.

General Comment No. 23, UN Doc. HRI/GEN/1/Rev.1, 38 (1994), at para. 6(2).

Vrdoljak, at 61, with further references.

Kitok v. Sweden , No. 197/1985, UN Doc. A/43/40 (1988), at 221ff.

Lubicon Lake Band (Bernard Ominayak) v. Canada , No. 167/1984, UN Doc. A/45/40 (1990), Pt. 2, at 1.

Ilmari Länsman v. Finland , No. 511/1992, UN Doc. CCPR/52/D/511/1992 and Jouni E. Länsman v. Finland, No. 671/1995, UN Doc. CCPR/C/58/D/671.1995.

Apriana Mahuika et al. v. New Zealand , No. 547/1993, UN Doc. A/56/40 (2000), at 11ff.

Åhren, supra note 9, at 107–108.

General Comment No. 23, supra note 56, at para. 3(2) (self-determination is a ‘right belonging to peoples’); Vrdoljak, supra note 52, at 61.

An example of such scrutiny is contained in the Concluding Observations on the Second and Third Reports of the USA: ‘[t]he State party should take further steps to secure the rights of all indigenous peoples, under articles 1 and 27 of the Covenant, so as to give them greater influence in decision-making affecting their natural environment and their means of subsistence as well as their own culture’: Concluding Observations of the Human Rights Committee, USA, UN Doc. CCPR/C/USA/CO/3/Rev.1 (18 Dec. 2006), at 12, para. 37. For further examples see Åhren, supra note 9, at 108 n. 100.

General Comment No. 23, supra note 56, at para. 7.

A. Xanthaki, Indigenous Rights and United Nations Standards (2007), at 215.

See supra note 34.

Donders, ‘A Right to Cultural Identity in UNESCO’, in Francioni and Scheinin (eds), supra note 2, at 317ff.

Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 2005, available at: www.unesco.org . For a discussion of both UNESCO conventions see Francioni, supra note 2, at 14–15.

Convention for the Safeguarding of the Intangible Cultural Heritage, 2003, available at: www.unesco.org .

Lenzerini, ‘Indigenous Peoples’ Cultural Rights and the Controversy over Commercial Use of their Traditional Knowledge’, in Francioni and Scheinin (eds) , supra note 2, at 119. See also McJohn and Graham, ‘Indigenous Peoples and Intellectual Property’, 19 Washington U J L and Policy (2006) 313.

Wiessner and Battiste, ‘The 2000 Revision of the United Nations Draft Principles and Guidelines on the Protection of the Heritage of Indigenous People’, 13 St Thomas L Rev (2000) 383.

Morijn, ‘The Place of Cultural Rights in the WTO System’, in Francioni and Scheinin (eds), supra note 2, at 285ff.

For an overview of the pertinent work of various intergovernmental organizations see Wiessner, ‘Indigenous Peoples’, 10 Yrbk Int’l Envtl L (2000) 193; 11 Yrbk Int’l Envtl L (2001) 155; 12 Yrbk Int’l Envtl L (2002) 198; and 13 Yrbk Int’l Envtl L (2004) 249.

Etymologically, the Latin word ‘ indigena ’ is composed of two words, ‘ indi ’, meaning ‘within’, and ‘ gen ’ or ‘ genere ’ meaning ‘root’: Longman Dictionary of Contemporary English (3rd edn, 1995), at 724.

The Longman Dictionary of Contemporary English Online , Definition of ‘indigenous’, available at: www.ldoceonline.com/dictionary/indigenous (11 May 2009).

Beck et al. , supra note 31, at 102 (medicine men or shamans interpret the creation stories and determine how people ‘must live in order to keep the balance of relationships that order the world’).

ILO Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries, adopted 27 June 1989, reprinted in 28 ILM (1989) 1382.

As of 15 Oct. 2010, Convention No. 169 has been ratified by 22 countries. For details see ILOLEX Database of International Labour Standards available at: www.ilo.org/ilolex/english/newratframeE.htm .

Cf. Firestone, Lilley, and Torres de Noronha, ‘Cultural Diversity, Human Rights, and the Emergence of Indigenous Peoples in International and Comparative Environmental Law’, 20 Am U Int’l L Rev (2005) 219.

Convention No. 169, supra note 78, Arts 1–19.

Wiessner, supra note 29, at 1156.

For a recent reaffirmation of the Constitution's guarantee to indigenous peoples of their right to their traditional lands see the 19 Mar. 2009 decision of the Brazilian Supreme Court in Raposa Serra do Sol , a vast indigenous area located in the Amazonian state of Roraima defended against the claims of invading rice farmers and senators of the state; see ‘Supreme Court upholds the demarcation of Raposa Serra do Sol land’, available at: www.braziljusticenet.org/606.html#Supreme (25 May 2009).

On the developments in Africa see van Genugten, ‘Protection of Indigenous Peoples on the African Continent: Concepts, Position Seeking, and the Interaction of Legal Systems’, 104 AJIL (2010) 29. See also the most recent decision of the African Commission on Human and Peoples’ Rights recognizing collective rights to land of the Endorois people in Kenya, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya , at paras 187 and 205, available at: www.unhcr.org/refworld/docid/4b8275a12.html , following the earlier decision to the same effect in The Social and Economic Rights Action Center for Economic and Social Rights v. Nigeria , at para. 63, available at: www.escr-net.org/caselaw/caselaw_show.htm?doc_id=404115 (both accessed 30 Dec. 2010); and the South African Constitutional Court's restoration of indigenous lands in Alexkor Limited v. The Richtersveld Community and Others , 2003 (19) SA 48–51 (CC).

Wiessner, supra note 22, at 128. See also Anaya and Williams, ‘The Protection of Indigenous Peoples’ Rights over Lands and Natural Resources under the Inter-American Human Rights System’, 14 Harvard Human Rts J (2001) 33 ; S.J. Anaya, Indigenous Peoples in International Law (2nd edn., 2004), at 49–72; Oguamanam, ‘Indigenous Peoples and International Law: The Making of a Regime’, 30 Queen's LJ (2004) 348. For a concurring analysis of indigenous land rights under customary international law and UNDRIP see Stevenson, ‘Indigenous Land Rights and the Declaration on the Rights of Indigenous Peoples: Implications for Maori Land Claims in New Zealand’, 32 Fordham Int’l LJ (2008) 298. A recent monograph on the protection of groups in international law also concluded that ‘there is sufficient proof of State practice and opinio juris among States to suggest the existence of a right to autonomy for indigenous peoples in international law’: N. Wenzel, Das Spannungsverhältnis zwischen Gruppenschutz und Individualschutz im Völkerrecht (2008), at 508. Weller, ‘Settling Self-Determination Conflicts: Recent Developments’, 20 EJIL (2009) 111, at 116 agrees.

Final Written Arguments of the Inter-American Commission on Human Rights before the Inter-American Court of Human Rights in the Case of Mayagna Indigenous Community of Awas Tingni v. Republic of Nicaragua , 19 Arizona J Int’l & Comp L (2002) 327, at 349.

Mayagna (Sumo) Awas Tingni Community v . Nicaragua , 31 Aug. 2001, Inter-Am Ct HR, reprinted in ‘The Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua ’, 19 Arizona J Int’l & Comp L (2002) 395. For details of this case see Anaya and Grossman, ‘ The Case of Awas Tingni v. Nicaragua: A New Step in the International Law of Indigenous Peoples’ , 19 Arizona J Int’l & Comp L (2002) 1.

Awas Tingni case, supra note 87, at paras 148–149.

Saramaka People v . Suriname , 28 Nov. 2008, Inter-Am Ct HR, Preliminary Objections, Merits, Reparations, Costs, Ser. C, No. 172. See also Moiwana Village v . Suriname , 15 June 2005, Inter-Am Ct HR, Ser. C, No. 124; Yakye Axa Indigenous Community v . Paraguay , 17 June 2005, Inter-Am Ct HR, Ser. C, No. 125; Sawhoyamaxa Indigenous Community v . Paraguay , 29 Mar. 2006, Inter-Am Ct HR, Ser. C, No. 146.

Wiessner, supra note 19, at 147–148.

Aurelio Cal v . Attorney General of Belize , 18 Oct. 2007, Sup Ct of Belize, Judgment, at para. 127, available at: www.elaw.org/node/1620 (25 May 2009).

For detailed research see the chapter by the Committee's Rapporteur, Professor Federico Lenzerini, ‘The Rights of Indigenous Peoples under Customary International Law’, 2010 ILA Interim Report, supra note 1, at 43–52.

Cf. 2010 ILA Interim Report, supra note 1, at 15.

Radin, ‘Property and Personhood’, 34 Stanford L Rev (1982) 957.

Carpenter, Katal, and Riley , ‘ In Defense of Property’, 118 Yale LJ (2009) 1022, at 1124–1125.

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Under suspicion: issues raised by indigenous peoples, page controls, page content.

Racial profiling is an insidious and particularly damaging type of racial discrimination that relates to notions of safety and security. Racial profiling violates people’s rights under the Ontario Human Rights Code ( Code ). People from many different communities experience racial profiling. It is often directed at First Nations, Métis, Inuit and other Indigenous peoples, as well as people in racialized communities. It is often influenced by the distinctly negative stereotypes that people in these communities face.

What we did

In 2015, the Ontario Human Rights Commission (OHRC) began a year-long consultation to learn more about the nature of racial profiling in Ontario. Our aim was to gather information that will help us guide organizations, individuals and communities on how to identify, address and prevent racial profiling.

To gather information, we connected with people and organizations representing diverse perspectives. We conducted an online survey, analyzed cases (called applications) at the Human Rights Tribunal of Ontario (HRTO) that alleged racial profiling, held a policy dialogue consultation, and engaged in other approaches. We also reviewed the academic research.

We specifically reached out to Indigenous individuals and groups representing Indigenous communities to understand their perspectives and experiences of racial profiling. Together with the Ontario Federation of Indigenous Friendship Centres (OFIFC), we organized focus groups, and the OFIFC also gave us a comprehensive written submission. Approximately 160 participants identified as First Nations, Métis or Inuit or of mixed Indigenous ancestry.

What we heard

We heard that Indigenous peoples across the province experience widespread racial discrimination and racial profiling. Alarmingly, the OFIFC says that in some communities, racial discrimination against Indigenous peoples is normalized.

It is simply normalized in some communities for Indigenous people to encounter racial profiling on a daily basis ranging from being denied service or provided inferior levels of service, to being unfairly targeted, harassed, and humiliated. In northwestern Ontario, community members describe being treated as “second class citizens” in their own communities (OFIFC submission; for more details see our report, Under suspicion: Research and consultation report on racial profiling in Ontario ).

Indigenous peoples told us they experienced racial profiling in policing, child welfare, health care, education, retail and private businesses, government and social services and housing, among other areas. They described being followed, watched, singled out for scrutiny and/or treated as if they were a risk to others because of their ancestry or race.

Indigenous participants also described other forms of racial discrimination in these areas, such as inequitable treatment, harassment, hate activity and everyday racism. Many of these experiences could amount to violations of people’s rights under the Code , but they may not be what the OHRC would typically define as “racial profiling” because they do not take place in the context of safety and security. However, our report includes these important experiences and perceptions. Here are some highlights of what we heard

Perspectives on the OHRC’s definition of “racial profiling”

The OHRC currently defines racial profiling as:

[A]ny action undertaken for reasons of safety, security or public protection that relies on stereotypes about race, colour, ethnicity, ancestry, religion, or place of origin rather than on reasonable suspicion, to single out an individual for greater scrutiny or different treatment.

The OFIFC and other Indigenous participants expressed concerns that this definition does not take into account the specific historical context of Indigenous peoples. For Indigenous peoples, racial profiling must be understood in the context of colonization. It is often experienced as part of the legacy of historic state practices that were intended to eliminate Indigenous cultures and disrupt communities through forced assimilation.

We heard that the narrowness of the definition does not reflect a holistic approach to the lives of Indigenous peoples, who may experience racism, discrimination and unfairness in multiple and interconnecting ways.

We heard that human rights policy work on racism and racial discrimination must appreciate how Indigenous peoples’ realities of racism relate to this distinct historical and political context. In our 2017-2022 strategic plan, the OHRC has committed to advancing human rights by engaging with and establishing trusting relationships with First Nations, Métis and Inuit communities and groups.

The OHRC will collaborate with First Nations, Métis and Inuit communities and groups to better understand Indigenous perspectives. We will work towards collaboratively developing resources and tools to address Indigenous peoples’ human rights.

We heard that racial profiling and racial discrimination in policing is a serious concern for many Indigenous peoples. In their submission, the OFIFC writes, “In many communities, Indigenous people suffer egregious treatment by law enforcement that takes the form of targeted questioning, harassment, and provocation, and can lead to police brutality, charges, and the act of ‘over-charging’ individuals.”

Several Indigenous survey respondents reported that when walking or driving, they were stopped by police without adequate explanation, questioned and asked for identification. Some respondents said that they believed they were followed or stopped because they were known to live in First Nations communities (because their licence plates showed that they lived on a First Nations reserve), or because they were incorrectly assumed to be intoxicated.

The reservation I live on is located next to a town of 9,000 people. The police often sit on the road between the town and our reserve waiting for people who may violate the rules of the road. What the police will say is that they are conducting normal traffic monitoring. Yet if you drive out toward the west of the town where there is a non-native community the police presence is nearly non-existent… For all I know maybe it is a good place to issue tickets but to me it looks bad and looks like racial profiling (First Nations male, age 55 and over).

We also heard concerns about under-policing. Some Indigenous respondents expressed their concerns that police did not adequately respond to them or their family members when they reported a crime or when they needed help from the police.

Courts and corrections

Several participants raised concerns about racial profiling and racism against Indigenous peoples that they believe exists in the criminal justice system. For example, a representative of Aboriginal Legal Services (ALS) said that in northern Ontario, Indigenous accused people are often placed hundreds of kilometres away from their communities without any social support, which makes it very hard to come up with a bail plan. As a result, many Indigenous persons languish in jails before appropriate accommodations or releases can be made. This is partly because only a few specialized court services in Ontario address Indigenous accused people within the larger history and culture of Indigenous peoples ( Gladue courts).

Many people raised concerns about the overrepresentation of Indigenous peoples in the Ontario and federal corrections systems. Jail data obtained by the Toronto Star shows that Indigenous peoples are overrepresented in youth facilities and adult jails in Ontario. And Indigenous peoples are disproportionately represented in admissions to adult correctional services across Canada.

At the federal level, the Office of the Correctional Investigator (OCI) indicates that Indigenous men and women prisoners “lag significantly” behind non-Indigenous offenders on nearly every corrections indicator including being classified as higher risk, being less likely to be given parole, and being more likely to return to prison because parole is revoked, which is often for administrative, not criminal, reasons.

Retail sector

We heard that shopping, a common day-to-day experience, can be psychologically stressful because of racial discrimination and racial profiling. Indigenous participants described a range of experiences that they perceived to be discriminatory while visiting stores and shops, including being:

• Watched or followed in retail spaces by store clerks
• Followed and stopped by security guards in stores or shopping malls
• Inappropriately questioned 
• Talked to or asked questions in a rude, hostile or suspicious way.

Participants also described other forms of racial discrimination while shopping. Several First Nations participants described how they were treated negatively by store staff when they presented their status cards. They reported that some shop clerks refused to accept the cards, or made discriminatory comments. One Indigenous woman said she was told, “Why don’t you go back to your reserve if you want taxes off?”

Child welfare

We heard concerns about racial profiling in the child welfare sector, particularly as it affects Indigenous and Black families. We heard that systemic racism was perceived to be embedded in the child welfare system, and that racial profiling that may take place in this sector targets mothers for over-scrutiny most often.

There is evidence that Indigenous children are overrepresented in the child welfare system relative to their proportion in the general population. Statistics Canada data from 2011 shows that even though Aboriginal children make up only 3.4% of children in Ontario, they represent 25.5% of children in foster care. There are many different issues that lead to involvement by child welfare authorities, but biased referrals and biased decision-making among these services may play a role.

We heard concerns that Indigenous parents are disproportionately subjected to surveillance and scrutiny, which contributes to families being reported to children’s aid societies (CASs). These experiences were viewed as arising in part from referrers’ and child welfare authorities’ incorrect assumptions about risk based on race and related grounds, and the intersections between race and poverty.

Consultation participants raised concerns about bias in the tools and standards used to assess risk to children. For example, consultation participants said that standards around the number of children allowed per bedroom are too onerous for many Indigenous families living in poverty. We also heard that these standards can affect what is seen as acceptable in a home and contribute to CAS decisions to intervene. When risk assessment standards and tools are not based on objective factors, but on the cultural norms of the dominant group, they may contribute to racial profiling.

We also repeatedly heard concerns about biased decision-making. We heard that non-Indigenous child welfare workers often do not understand the nature or structure of Indigenous families and cultural differences in how families live. Participants said that child welfare workers, many of whom are White, may be more likely to construe family situations or the actions of racialized or Indigenous people as “risky.” For example, Indigenous youth told us that they are sometimes put into care because they miss a lot of school due to practicing their traditions and taking part in ceremonies.

A significant concern raised by many Indigenous participants is that new Indigenous mothers are unfairly targeted for child apprehensions, including apprehensions at birth. 

Health care

Compared to all survey respondents, greater proportions of Indigenous respondents said they were racially profiled in health care. We heard about situations where Indigenous peoples seeking health care were perceived as a risk to others based on race and race-related grounds. For example, a midwife identified how the hospital she works at routinely calls social workers or child welfare authorities when the women giving birth are young and Indigenous:

I work as a midwife, primarily with Aboriginal women, and have lost track of how many racist assumptions and mistreatments I've observed based on race. For example…calling social workers or child protection agencies because parents are young and native – massive profiling in the selection of who has that involvement. Then, once that involvement starts, Aboriginal women are much more likely to have their babies removed for much more dubious reasons (Mixed race – White and Aboriginal female, age 35-44).

We also heard other experiences of racial discrimination in health care. Many participants said that Indigenous peoples’ symptoms may not be treated seriously because they are assumed to be drunk or high, have a history of alcoholism or are “drug seeking.” We heard that this can result in different standards of care for Indigenous compared to non-Indigenous people.

Participants said that some health care professionals may treat Indigenous peoples in a discriminatory and rude way, which results in people being reluctant to seek health care when they need it. For example, we heard that an Indigenous woman from a northern Ontario community refused to stay in hospital after being referred to as a “narcotics seeker” in an emergency room. After she was finally coaxed to return, she was found to be suffering from severe kidney problems.

Government and social services

The OFIFC and others raised concerns that some natural resource and conservation officers racially profile Indigenous peoples who are exercising their harvesting rights. We heard that Indigenous peoples may be unfairly charged or prosecuted for conservation offences for fishing, hunting and trapping without a licence, and that some conservation officers may scrutinize people so often it is seen as a form of harassment. The OFIFC reports that these unfair practices lead to families, communities and Friendship Centres “suffering from a lack of access to traditional foods, learning cultural practices and sharing land-based knowledge and teachings.”

Many participants described how they, or Indigenous friends or relatives, believed they were denied housing because of discrimination.

I accompanied a young First Nations friend in her search for an apartment. The prospective landlord made a point of mentioning that there were mice, which reinforced my friend's already strong sense (radar) that this person did not like aboriginal people and that she was an unwelcome prospective tenant. She has since died on the street in 2006 (White female, age 55 and over).

We heard that Indigenous peoples may be negatively stereotyped as unreliable tenants. They may be incorrectly assumed to be involved in criminal activity or presumed to have drug or alcohol addictions. If housing providers make decisions – for example, to not rent an apartment to someone – on assumptions of Indigenous peoples being a risk, this may be racial profiling.

For more information

To find out more about racial profiling, the full Under suspicion report is available online at www.ohrc.on.ca .

To file a human rights claim (called an application), contact the Human Rights Tribunal of Ontario at:

Toll Free: 1-866-598-0322 TTY Toll Free: 1-866-607-1240 Website:  www.hrto.ca

If you need legal help, contact the Human Rights Legal Support Centre at: Toll Free: 1-866-625-5179 TTY Toll Free: 1-866-612-8627 Website:  www.hrlsc.on.ca

©2017 Queen’s Printer for Ontario

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Indigenous Issues Are Sidelined in Canada’s Election

The discovery of over 1,000 remains in unmarked graves at former residential schools started a dialogue that hardly surfaced in the campaign.

By Ian Austen

As the 36-day snap election called by Prime Minister Justin Trudeau staggers toward Monday’s vote, the Liberals and the Conservatives remain locked in a statistical tie in the polls.

It’s been a largely desultory campaign with few highlights, and an English-language debate that was widely criticized for using a format that actually inhibited debate.

To a large extent, it remains an election about the need for an election. Erin O’Toole, the Conservative leader who I profiled this week, and Jagmeet Singh of the New Democrats continue to characterize the pandemic election call as unnecessary and unwise during a public health emergency. (My report on Mr. Trudeau and his campaign will appear this weekend. )

[Read: To Unseat Trudeau, Canada’s Top Conservative Leans Left ]

No other issues reached the point of allowing any party leaders to significantly redefine the campaign. And many important subjects were given short shrift.

Exhibit A among those overlooked was Indigenous issues.

The discovery of the remains of former students in unmarked graves at the site of the former Kamloops Indian Residential School in May, then elsewhere in the following weeks, shocked many Canadians who live outside of Indigenous communities and renewed the national discussion over reconciliation. But, for the most part, that conversation didn’t carry over to the campaign.

Mr. Singh and other candidates have challenged Mr. Trudeau for failing to bring clean drinking water to all Indigenous communities during his first five years in office.

“It’s certainly not the capacity, it’s certainly not the lack of technology, it’s certainly not the money, because we have the resources. We can do this,” Mr. Singh said during a stop at Neskantaga First Nation in Northern Ontario. “Then what is it? I don’t buy for a second that it is anything other than the political will.”

Mr. Singh has offered few specifics about how he would succeed where Mr. Trudeau’s government has struggled despite allocating just over 2 billion Canadian dollars to the effort and creating a new cabinet position, the minister of Indigenous services.

Indeed, Mr. Trudeau often boasts about how the government has brought clean water to 109 First Nations communities. But that doesn’t mean the problem has gone away. There were 105 boil-water orders in effect at First Nations when Mr. Trudeau took power. But as the government has resolved the problems in some communities, issues popped up elsewhere. Today 52 boil-water orders remain.

“We’ve got action plans and project teams in each of those communities with the money and the expertise to get it done,” Ben Chin, Mr. Trudeau’s senior political adviser, told me in Burnaby, British Columbia, this week. “I’m sure that other boil-water orders will happen and we’ll have to pivot to that, too.”

But none of this surfaced during the campaign aside from a block of Indigenous questions during the English debate. Despite a headline-making year, Indigenous issues are still on the fringes of mainstream Canadian politics.

Earlier this year, Mumilaaq Qaqqaq, the New Democratic Party member who represents Nunavut, said she would not seek re-election in part because of the difficulties she faced as an Indigenous lawmaker.

“The systems are built to work for certain people,” she told The Globe and Mail . “It’s middle-aged white men.”

In this election there are 50 Indigenous candidates , according to the Assembly of First Nations.

In general, it appears that Indigenous people are less likely to vote than other people in Canada . Elections Canada’s analysis only counts Indigenous people who live on reserves, leaving many others out. But in 2019, just over 51 percent of that population voted , compared to 67 percent of all eligible voters.

Part of that may be geographic. Many reserves are within sparsely settled electoral districts that span wide swathes of provinces, meaning that many communities rarely, if ever, are visited by candidates hoping to become their local members of Parliament.

There are sometimes technical barriers, which the pandemic may only intensify. The Assembly of First Nations worked with Elections Canada this year to work out issues like voter registration on reserves.

But many Indigenous people have told me that they choose not to vote because they do not regard themselves as Canadian and view voting as endorsing a system that was imposed upon them.

“Many Indigenous people that I know in both urban and back home communities do not vote on purpose because they feel that Indigenous people are irrelevant to both local and national politics, that Indigenous people do not have a voice,” said Suzanne Stewart, a member of the Yellowknife Dene First Nation in the Northwest Territories and an associate professor of Indigenous healing at the Ontario Institute for Studies in Education at the University of Toronto.

Professor Stewart told me that she will vote on Monday — for a New Democrat — but only to honor the people who fought to give Indigenous people that right, something that only came fully to pass in 1960.

“That’s why I vote, not because I believe that anyone cares or that we’re relevant,” she said.

Trans Canada

Max Fisher, one of the writers of The Interpreter, has looked at how the current vote in Canada may be part of a global trend in which center-left parties are seeing modest gains this year, in part because of changes brought by the pandemic.

[Read: As Populists Decline, the Center-Left Sees Hints of a Comeback ]

Apple issued emergency software updates this week after researchers at Citizen Lab, a cybersecurity watchdog organization at the University of Toronto, found that a Saudi activist’s iPhone had been infected with an advanced form of spyware. It is designed to allow governments, mercenaries and criminals to secretly break into anyone’s phone without tipping the victim off .

Norm Macdonald, the deadpan and sometimes controversial comedian who was born in Quebec City and who rose to fame on Saturday Night Live , died on Tuesday at the age of 61. “I never wanted fame at all, I just wanted to do stand-up,” he once told The Ottawa Citizen.

Pascal Siakam of the Toronto Raptors told Sopan Deb, a Times basketball writer, that even though he is frustrated by not feeling like he was his team’s focus, and despite being slowed by illness and injury, he has a bright future in Toronto .

With its acquisition of Kansas City Southern, Canadian Pacific is in position to become the first railway extending from Canada to Mexico.

Gilbert Seltzer had a prosperous career in architecture which he studied in his hometown, Toronto. But his greatest creation was a fake army, including inflatable tanks and scripted radio transmissions that successfully duped the German forces during World War II. He has died at the age of 106.

A native of Windsor, Ontario, Ian Austen was educated in Toronto, lives in Ottawa and has reported about Canada for The New York Times for the past 16 years. Follow him on Twitter at @ianrausten.

How are we doing? We’re eager to have your thoughts about this newsletter and events in Canada in general. Please send them to [email protected] .

Like this email? Forward it to your friends, and let them know they can sign up here .

A native of Windsor, Ontario, Ian Austen was educated in Toronto and currently lives in Ottawa. He has reported for The Times about Canada for more than a decade. More about Ian Austen

• Open access
• Published: 15 September 2021

Decolonizing health in Canada: A Manitoba first nation perspective

• Rachel Eni   ORCID: orcid.org/0000-0002-8118-6606 1 ,
• Wanda Phillips-Beck 2 ,
• Grace Kyoon Achan 3 ,
• Josée G. Lavoie 4 ,
• Kathi Avery Kinew 5 &
• Alan Katz 6  

International Journal for Equity in Health volume  20 , Article number:  206 ( 2021 ) Cite this article

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Introduction & Background

Global persistence of health inequities for Indigenous peoples is evident in ongoing discrepancies in health and standards of living. International literature suggests the key to transformation lies in Indigenous efforts to control Indigenous health and healthcare. Previous authors have focused upon participation, structural transformation, and culturally appropriate healthcare recognized as a political right as fundamental tenets of Indigenous control. Contextualizing Indigenous health and wellness falls within a growing discussion on decolonization – a resituating of expertise that privileges Indigenous voice and interests.

The study is a qualitative, grounded theory analysis, which is a constructivist approach to social research allowing for generation of theory in praxis, through interactions and conversations between researchers and participants. One hundred eighty-three interviews with additional focus groups were held between 2013-15 in eight Manitoba First Nation communities representing different models of health delivery, geographies, accessibilities, and Indigenous language groups. Community research assistants and respected Elders participated in data collection, analysis and interpretation. Line-by-line coding and constant comparative method led to the discovery of converging themes.

Ultimately four main themes arose: 1) First Nation control of healthcare; 2) traditional medicine and healing activities; 3) full and meaningful community participation; and 4) cleaning up impacts of colonization. Joint analyses and interpretation of findings revealed substantial evidence that communities were looking profoundly into problems of improperly delivered services and health inequities. Issues were consistent with those highlighted by international commissions on reconciliation, health, Indigenous rights and liberties. To those documents, these findings add ground upon which to build the transformative agenda.

Results & Discussion

Communities discussed the need for creation of protocols, constitution and laws to ensure growth of a decolonizing agenda. Inclusive to the concept are holistic, preventative, traditional health perspectives, and Indigenous languages. Colonization impacts were of critical concern and in need of undoing. Sharing of social and political efforts is seen as pivotal to change and includes all members of communities.

Global persistence of health inequities for Indigenous peoples is evident in higher rates of illness and disease, food insecurity, living standards and mental health [ 1 , 3 , 4 , 8 , 13 , 14 , 16 , 19 , 33 , 34 ]. International literature on health inequities suggests the key to successful outcomes is held within communities who have taken control over their health, health services and systems [ 12 , 36 ]. Indigenous participation, engagement in health programming, policy development [ 37 ], structural transformation [ 38 ], and culturally appropriate healthcare, recognized as a political right [ 35 ] are specific tenets within those discourses of control.

Without control of healthcare there is a lack of clarity regarding unique perspectives, interests, histories, and contexts that Indigenous people bring to their healthcare experiences and the ways by which they inform optimal care provision for themselves and their families [ 7 , 25 ,  32 , 39 , 40 ]. Also apparent is a growing focus on the problems of ongoing indigenous-specific racism, discrimination, the history of institutionalized healthcare and a lack of understanding of the unique life experiences of Indigenous peoples [ 32 , 41 ].

Contextualizing Indigenous health and wellness falls within a growing broad discussion on decolonization of health and healthcare. In Canada and internationally, research and policy has focused on transferring control of healthcare to Indigenous governance [ 28 , 29 ]. In Australia, Sherwood and Edwards recommended a necessary transformational shift in order to improve Indigenous health. Decolonization of healthcare systems, these authors emphasized, is necessary for this shift to occur. Decolonization includes resituating expertise such that Indigenous peoples become experts of their own health experiences, voicing and acting upon health initiatives. Furthermore, a systemic shift away from the ongoing dominant linear approach to health is needed [ 28 ]. Current knowledge from Indigenous communities highlights views on health and disease that are more inclusive and holistic, acknowledging the full spectrum of influences affecting wellness across the life course, aligning with traditional perspectives, e.g., access to and involvement in the production of healthy foods, physical activity, spiritual expression, and community empowerment [ 31 ] and among multiple levels of human existence, i.e., social, political and economic [ 11 ].

Our focus on decolonization stemmed from community discussions on underlying issues of healthcare provision and transformation efforts in on-reserve communities with effectively developed community-based primary healthcare models. First Nation active involvement and leadership in the research program shed light on elements of healthcare provision that constitute First Nation governance. Within effectively developed, community-based healthcare models was ample consideration to community-informed direction and interests, social determinants of health, holistic programming, traditional medicine, and jurisdictional bridging. By their very participation and involvement, solutions to complex and persistent issues seemed straightforwardly solvable.

This paper focuses on research of the Innovation Supporting Transformation in Community-Based Research Project (iPHIT) to learn from First Nations that have developed effective community-based primary healthcare models. It emphasizes data collected from interviews and focus groups pertaining to decolonization as fundamental to transformation, and ultimately to effective healthcare provision. Within decolonization, community representatives spoke on issues of self-governance, traditional medicine, holistic human and ecological wellbeing, full community participation and inter-governmental, inter-population collaboration. The beauty and richness of the research emanates from its methodology – from its reconsideration of expertise regarding the requirements of primary healthcare that is away from providers and institutions to the users of care.

Defining decolonization in context

Decolonization addresses the multiple facets of disconnect between healthcare and Indigenous health outcomes, and the root of perpetual inequity itself. It is a process of reclamation of political, cultural, economic and social self-determination, including the re-development of positive individual, familial, community and nation level identities. Decolonization draws on colonial legacies, drawing on the knowledges and practices of pre-colonial, “traditional” times [ 17 , 20 ]. These efforts require active involvement of Indigenous as well as non-Indigenous peoples (Mundel & Chapman). Decolonization has a revolutionary potential that requires the dismantling of colonialism as the dominant model upon which Canadian society [ 42 ], and healthcare provision, more specifically, operate.

Methodology

This article is one of a program of research entitled ‘Innovation in Community-Based Primary Health Care (CBPHC) Supporting Transformation in the Health of First Nation and Rural/Remote Communities in Manitoba, Canada’ (iPHIT). The study was a 5-year research collaboration involving researchers from the University of Manitoba, 8 Manitoba First Nation communities, and the First Nations Health and Social Secretariat of Manitoba (FNHSSM), also recognized by its traditional name Nanaadawewigamig, which means “A Healing Place” in the Anishinaabe language. The Assembly of Manitoba Chiefs, Chiefs-in-Assembly, a political organization representing 63 Manitoba First Nations established the FNHSSM in 2013. The goal of FNHSSM is to create a unified health system with First Nations across the province through research, policy analysis, and advocacy. FNHSSM is also home to the Manitoba First Nations Health Information Research Governance Committee (MFN HIRGC), an ethical review body for all research involving First Nation peoples in Manitoba. MFN HIRGC reviews and approves research proposals to ensure that all research involving First Nation peoples meets 4 stipulated guiding principles: 1) free, prior, and informed consent at individual and collective levels; 2) First Nations OCAP principles, establishing First Nation ownership, control, access, and possession of data; 3) respect for First Nation ethical standards; and 4) benefit of the research to First Nations. These principles represent the essence of First Nation self-determination and governance in Manitoba [ 24 ].

The iPHIT program was one of 12 national teams funded via the Canadian Institutes of Health Research (CIHR) under the Community-Based Primary Health Care Initiative. Multiple challenges regarding provision of healthcare in First Nation communities, with a serious requirement for transformation in community-based primary healthcare was previously noted [ 18 ]. Contributing to the challenges for healthcare provision in the communities are small size of the communities, geographical isolation, and multiple jurisdictional operation of healthcare services and funding agencies: federal, provincial, regional health authorities, private for-profit organizations, and self-governing First Nation communities [ 24 ]. Further compounding delivery of healthcare is the multijurisdictional system for funding and delivery of community-based primary healthcare services, especially when the jurisdictions have not clearly defined each of their specific responsibilities, nor have they attended to colonization or its impacts [ 18 , 24 ]. A growing evidence-base reveals that those First Nation communities who exercise control of their own healthcare appear to better meet the health needs of their community members. To further investigate this phenomenon, the iPHIT program focused on the experiences and strengths of community-based primary healthcare in First Nation communities, focusing on communities who have already begun their own healthcare transformation processes, utilizing traditional values within community-based and population health promotion lenses. Further information on studies of the iPHIT program is published [ 15 , 24 , 41 , 43 , 44 , 45 , 46 ].

Partnership, establishment of goals and direction

The iPHIT program, developed in partnership between FNHSSM and the University of Manitoba, built upon engagement and the capacities of the First Nations with the following overall goals in mind: 1) to describe community-based primary healthcare provision in First Nation communities by focusing on their strengths, key factors and innovations in healthcare to maintain wellness of community members; 2) to explore First Nation perspectives regarding why mainstream approaches to health may be failing; 3) to compare governance models, community engagement and delivery processes in and between the communities; and 4) to build collaborative relationships with communities and decision-makers in support of community-based primary healthcare innovation implementation to improve overall wellness of First Nations (see also [ 24 ]). These questions guided the qualitative study from which multiple articles have already and are in the process of being published [ 15 , 24 , 41 , 43 , 44 , 46 ]. For the iPHIT team, the process of collaborative and respectful engagement was pivotal for implementation of a decolonizing methodology.

Analytic strategy

We followed the general theoretical assumptions of grounded theory (GT) as described by Charmaz and others in her footsteps [ 5 , 6 ]. GT is a constructivist approach to social research that allows for generation of theory in praxis, through interactions and conversations between researchers and research participants [ 30 ]. The theoretical approach advocates use of sensitizing concepts, which Charmaz defines as background notions that inform the research problem and provide the lenses through which we see, organize and understand experience. Sensitizing concepts become rooted within our conceptualizations of what is and how things ought to be in the world through ideological constructions and relative interpretations of reality. Though they may deepen perceptions, “they provide starting points for building analysis, not ending points for evading it.” In doing the work of GT, we use sensitizing concepts only as points for departure from which to study the data (2003: 259). The principles of GT provide a conceptual grounding while, at the same time, remain open to emergent themes [ 26 ].

The sensitizing concepts can be used further, to develop social constructs that are useful to studies in other social settings [ 2 ]. The constructs were derived from the perspectives of the research participants, from their language and expression, and that ‘sensitized’ the researchers to possible lines of inquiry [ 10 ]. Social constructs within Indigenous and decolonized methodologies influenced the starting point for our inquiry and analysis. Though we committed to adhering to GT methodology, that is to cast judgement and preconceived notions aside, we can only do so to a certain conscious extent beyond which we become blinded by our biases. All of the researchers went into this study perceiving that colonization continues to influence inequities in health and that racism exists and affects Indigenous peoples at every level of healthcare.

Linking back, the reviewed literature and previous studies by the research team indicated that the basic theoretical argument was that decolonization was an essential step to health equity for Indigenous peoples that included concepts such as taking back control of health, reclaiming and reviving health, and community-based participation. We assumed these concepts contained the theoretical notions that would set up the context for the overall research program. Although the goal for the research was to induce theory from the data, we are all to some extent influenced by our immersion in the politics of Indigenous health.

The sensitizing concepts emerged from the First Nations’ desire to transform primary healthcare in their communities by taking back control over their healthcare in order to improve accessibility, relevance and overall health and wellness. In initial discussions about development of the iPHIT research program, community participants addressed concepts pertaining to a necessary transformation, which included self-determination and autonomy, consensus and active participation in healthcare design and delivery, and well as addressing key issues, such as racism and colonial imposition. These sensitizing concepts informed the interview and focus group question guides.

First nation collection of first nation data

Discussions about the research program began with a focus group meeting involving community leaders, health representatives and community members. As well, a regional conference was held, which allowed each participating community to share developments of their primary healthcare models. Each community identified a local research assistant (LRA) to serve as lead researcher for their own community. LRA’s attended a research assistant training program and were ultimately responsible for sharing information about the study, recruitment, planning interviews and focus groups, data collection, co- analysis and interpretation, validation, and dissemination of findings and results.

Participant recruitment

Eight of Manitoba’s 63 First Nation communities were invited to participate in the study. The communities were chosen purposefully, representing different models of health service delivery and 4 of the 5 First Nation languages in the province: Ojibway, Cree, Dene, and Dakota. The communities are geographically dispersed throughout Manitoba, with four each in the north and south. Community sizes range from small (a few hundred residents) to large (a few thousand residents). Two communities are isolated, accessible only via fly-in or winter ice roads. Two are semi-isolated, accessible by road but are far away from city centres. Four communities are rural with all-season road access. The four northern communities have nursing stations and the southern communities have health centres. All receive federal funding for healthcare. All came into the study with unique and innovative perspectives on community-based primary healthcare.

Within each community, LRAs utilized a snowball approach to recruitment of participants for interviews and focus groups. LRAs approached individuals they thought would have interest and insights into healthcare system experiences. One person spoke to another in the community about their involvement in the study and soon approximately 10 from the smaller communities, 20-30 from medium sized, and 50 from the larger communities were interviewed. Focus group discussions began as LRAs and researchers began to look into, discuss and analyze the data. As such, sensitizing concepts began to emerge and to shape conversations about the data. The focus groups helped to keep a momentum and conversation in communities about the research.

Interviews and focus groups

A total 183 interviews were held between 2013 and 2014. Community focus group discussions were held in 2014 to 2015. An interview guide developed in discussions between LRAs and the researchers, following the initial regional meetings, was used. The interview guide included open-ended questions with probes to encourage in-depth responses. Interviews and focus groups were in confidential spaces following individual participant comfort, such as at their homes, in the community health centres, or outside. Interviews lasted 90-120 minutes in length. Focus groups were 2-2.5 hours each. In each community, LRAs guided the discussions. Data collected from the interviews helped shape the focus group discussions. Eight to 15 individuals participated in each of the focus groups.

Participants ranged in ages, including young and older adults. There were equal numbers of men and women participants. Health directors and other healthcare providers from the communities were also participants. Although socioeconomic demographics were not recorded, participants represented lower to middle income brackets, a spectrum of educational level, from no secondary to college or university and graduate education. Elders brought a historical and traditional wisdom with them to the discussions.

Interview questions were organized into several categories regarding health needs, interests, service availability, accessibility, and more fundamental aspects of health and delivery of healthcare programming for First Nations, i.e., philosophy, history of colonization and self-government. Questions were included pertaining to personal and familial experiences in the different levels of healthcare, from community to tertiary or emergency care, and on biomedical as well as traditional knowledge and resources. Interconnections between jurisdictions, ecologies and areas of expertise were also brought into the discussions. Participants were seen as experts of their health experiences and were invited to share their wisdom in order to add substance to a transformative agenda, which it was hoped, would encourage vast improvement in self-governance, healthcare, and ultimately health of First Nations.

All discussions within each community were audio-recorded and transcribed verbatim. In total, 400 pages of transcribed data were collected. Data was collected until saturation was reached. Meaning that through conversations and reviews of the data between LRAs and researchers, we had come to realize that information is becoming repetitive and no new information is being said. Once the data from all of the communities was collected, files were imported into Nvivo 10 software. . Excel was also used to assist in organizing observations from the data and to record the emergent themes. Transcripts were rechecked for accuracy against the audio-recordings.

Analyses included line-by-line coding and constant comparative method by which newly collected data is compared to former existing data in order to derive new codes, themes, and conceptual focal points. We looked for converging themes by community and then question by question. As we looked across communities, ideas and themes started to emerge. Patterns and interrelationships began to emerge. Codes were grouped into the following 4 themes: (1) First Nation control of healthcare; (2) traditional medicine and healing activities; (3) full and meaningful community participation; and (4 cleaning up impacts of colonization.

To perform a GT analysis in collective, we set up levels of analysis that began with community level validation or rechecking of the data, having the LRAs check in with participants to ensure accuracy of interview and focus group transcripts, and then later, checking with the participants to verify interpretation of the data. LRAs and researchers compared data sets, allowing common themes to emerge. Weekly meetings were held until 2017, led by one or two of the researchers (GKA and RE). Ongoing discussions allowed for a growing intimacy with the data, bringing themes to life and revealing a cohesive story of decolonization of health in the region. In 2018, a regional conference was held – bringing together and cohesively validating the research.

Trustworthiness of qualitative data is a standard concept used in qualitative research that is in contrast to conventional, positivistic criteria for external and internal reliability, validity and objectivity [ 2 ]. At community and regional levels, we employed trustworthiness techniques including: member checking, negative case analysis and thick description. Ultimately, a plausible a coherent explanation of issues pertaining to the topic emerged. Validation was achieved by presenting the results back to participants and the communities in community and regional workshops.

Ethical overview

Ethics approvals were sought and obtained from the University of Manitoba Research Ethics Board and from the Health Information Research Governance Committee (HIRGC), which is supported by the FNHSSM and is responsible for ethics reviews of all research proposals involving First Nations. Consent to participate was communicated through Band Council Resolutions made by each participating community, after meeting by project team members. The research adhered to the First Nation principles of ownership, control, access and possession of data (OCAP), which gave the communities decision-making authority regarding the details of information collection, utilization, and management [ 9 ].

Joint analyses and interpretation of the findings between researchers and First Nation people revealed substantial evidence that the communities were looking profoundly into the problems of poorly delivered healthcare services and health inequities. Issues brought to the fore were consistent with those highlighted by national and international commissions regarding reconciliation, health and wellbeing, Indigenous rights and liberties. What the community members generated through the interviews could be described aptly as substance to conceptual images conceived in central discursive circles. Essentially, we were all on the same page regarding it being high time colonialism and all it entails be brought to its head. However, the work that the communities were doing was providing an actual ground upon which to build a decolonizing, and therefore, transformative agenda. A culmination of work that can be described as dissecting decolonizing into pieces of not only coming out of a colonized mindset but re-entering into and revival of traditions, that included values, aspirations, and ways of doing health work that were outside of what has for over a century been shaped by colonial and, inside of that, biomedical power and control.

First nation control of healthcare

The first theme involves a realization that someone must be controlling what gets done in healthcare, including what gets prioritized, attended to, and ignored. Community members believed it was necessary to inquire about one’s roles and responsibilities in order to create change. If one is not actively involved in decision-making about health matters that involve self and family, it is important to ask how this has come to be so or, perhaps, where that authority has gone lost. Interviewees across the communities agreed that control over such matters was taken from them by the Canadian governments. Consequently, they agreed in the necessity of resuming that control.

First Nation control and ownership would provide better access and would have the biggest effect on community health (A027).

Government has just conditioned us too much as Aboriginal people... They want to control us, and they want to stop where we are (wanting to move forward). Now we need to start empowering our people with knowledge and power and give back to take ownership of their communities, their health (GFG004-4).

What we need is less interference from government. Like right now, we are simply agents of the federal government. We administer their programs. We need access to resources which we can control and be accountable for, but control as we see fit (C008).

We need to have more awareness and more participation from individuals themselves, patients themselves. I believe they need to be more accountable for their own health (C016).

Self-governance begins with the family. The healthy part is to have vision by the community. We want the community to be healthy and it has to start from the self and then family and then community – just having the opportunity to make decisions and for communities to create their own guides for wellness (D005).

We need to get over what was imposed on us, those laws. One way… is creating our own constitution, creating our own laws. The Province of Manitoba and the government of Canada have to ensure, the economic capabilities of First Nations are supported, we need room to grow. The best way of doing that is by giving First Nation people opportunity to govern (D014).

First Nation models of health and wellbeing were holistic, including multiple domains of human development – physical, emotional, mental/cognitive and spiritual, as opposed to biomedicine’s focus on the anatomical/physiological body. Further, healthcare included attention to how individuals live within their multiple ecologies, including what they eat, how they hunt, gather, and prepare their foods. Paying attention to prevention and health promotion strategies would go a further way than medical surgeries in resolving chronic disease epidemics.

Prevention! We are so focused on intervention right now, it’s tough to turn to prevention, but we’re taking steps in the right direction and if we can just front load our prevention models, the better it will be because that means we’re doing everything we can to provide tools and skills to emerge to address those health issues before they become life threatening (D014).

Decolonizing the mind and the way the mind is interpreted, to participant interviewees, meant having thoughts and behaviours understood and respected from within a perspective that acknowledges the values and meaningful existence, what it means to be a First Nation person.

We need more psychiatry, but psychiatry based in our society. They come in and they don’t understand our society, the way the society is (A007).

To decolonize requires an emphasis by communities to develop local expertise, working within communities, and according to traditional methods of health provision and understandings about the human condition.

We would have our own band members as physicians, which we might be close to having in the next couple of years. A lot of people in the health centre are our own band members, which is fantastic. A lot of First Nations communities don’t have that yet (D014).

Quality healthcare is to have a good nursing station with all of the programs that are needed, NNADAP, mental health, nurses, medications, having all of those services here, all complete… A lot of lives can be saved just by keeping people here instead of sending them away so much (C011).

To train people better, work together with the community in our way and I think you’d have something substantial. I think now the people lack capacity (C011)

Permanence is essential, permanent… not temporary nurses… (C011).

Decolonizing spaces as well as work patterns were aspects of taking back control of health, as the following comments suggest.

The (community health representatives) need to get out of the offices, go door-to-door and see about the people in their homes, home visits, taking healthcare to the people and embracing health as a community (A007).

We’re all scattered. We’re not in one building or space as health workers. The nursing station is over there, social services is over here, and the other health workers are in a different area too. Sometimes no one knows what’s going on (A005).

• Traditional medicine

Communities saw colonization as a system of beliefs and practices imposed upon them, at the same time devaluing, ridiculing and forbidding traditions. Biomedicine halted development of First Nation medicines and healing philosophies. Now, the participant interviewees said, it was time to bring these knowledges back to the forefront of healthcare.

We would have traditional medicines brought back at the nursing stations for people to use. Our people are losing their limbs from diabetes and this isn’t supposed to happen. I have that medicine for that so that won’t happen to them. They won’t have to lose their limbs (C012).

The main thing, the fear of the traditions has to be erased (A005).

Too many people now don’t believe in our culture. They don’t even believe in traditional values anymore. There’s been a conflict, I guess, between white society and our own culture. There’s just a lot of people have been brainwashed into thinking that culture is bad. You don’t want to see a medicine man because generally, people think it’s bad to go to one. And when somebody does go, they think they’re practicing black magic or something like that. So, people tend to stay away from something like that (A007).

We have to re-educate our people on our own traditional medicines. We have a lot of learn and to differentiate, which herbs to use for spirituality and for physical health and so on. Educating to the purpose of the benefits of traditional uses of medicines is important. A lot of these chemically produced medicines have a lot of side effects. We need to get the people that have knowledge of these traditional medicines to explain the benefits of the traditional medicine, he herbs, and so on, bringing down the disillusionment that the community may have of using such traditional medicines (C005).

Revival of First Nation traditional knowledge would involve collaboration between the communities.

We can have a guide, a guide that would be for the community or for all the nations. If we’re going to have our own guide, I guess to have some understanding, there’s only certain things that are growing or could be grown in this community. In other communities there’s only things that can be grown there. So, a guide would be a good thing to begin with. Like, we’re got access to this, this is what we can grow and that is how you can use it, stuff like that. Because you have a lot of Manitoban communities, they do come pick sweet grass here, even from Saskatchewan, Alberta, Ontario, and British Columbia (the other provinces). They actually travel all that way to come and pick the medicines (D005).

Elders in each of the communities are thought to hold pertinent knowledge about traditional health.

It’s more than the medicine men or medicine people involved in spirituality or have knowledge of such medicines. It’s our Elders have a working knowledge of these medicines but they are not being utilized so we need to promote education, give them a place to share, in a working group, groups together that are interested in medicines and further our understanding, utilize what we have and study (C005).

Reconnecting after colonization was seen as pivotal to reclaiming health and healthcare. Traditional medicine and healing activities presupposed human-ecological interconnection. Importantly, what was interrupted with by the colonial regime was still accessible to the people, it may be hidden, in need of rediscovery, but discoverable, ready to be revitalized, nonetheless.

My dad was torn apart from his land and traditions. When I came back here, I was filled by that, all of the traditions and family that I missed out on. I never wanted to leave, the sense of community, the sense of the land and the people. When I do leave, even for a day, I get lonely, I get physically sick. We’re safe here and you feel it, you’re at home, on the land, something with the land, a bond, something (A007).

Our medicine people are coming back strong. The western doctors, they did so much harm than good (D012).

Full and meaningful community participation

Participant interviewees highlighted the fundamental importance of full participation in community development matters. Everyone had a voice. Personal and unique experiences of each gender and age group were vital to the creation of the type of healthcare services that would attend to the needs of the people. This type of participation is inherent in a First Nation conception of self-determination.

It’s an integrated system we need that delivers services based on the health needs of the community (A027).

Most of our problems are about social issues. People are hurting, suicidal, heart-broken parents, these need to be understood and addressed, people need a place to just be heard and to be (A029).

We need to listen to the kids, our youth, because they are the ones that are going to take over this health centre one day. If these kids get healthier and more cultural that will be such a positive thing in the community (B005).

Open dialogue, I’m looking at this question from our oral tradition, which is more or less for me, open dialogue. Get the feedback from the people, the ones that are receiving the healthcare and what they think can be improved (C005).

People get stuck and it’s only one person making all the decisions, it’s got to be everybody, the whole community to say, “Let’s get on board, let’s help one another, support one another and make those changes as a community” (F006).

The vision should be created in consultation with community. So many times, the community is left out (F1).

With the older people that are out there now, I would want… the youth to do that… go and visit the Elders… Visit them, learn something from them while they’re still here… We need to get their input and learn. We need to get back some of that what the Elders had in how they grew up and how these youth have grown up that which are two different things all together! Learn from each other because some of these older people, even a lot of young people don’t know medical things… It is time consuming, but you can learn and teach in discussions (C010).

Cleaning up impacts of colonization

Whether or not participant interviewees focused on a need for more biomedical intervention brought closer to the communities, or even, into communities, or for improved health and wellness via holistic, health promotion and preventative strategies, one thing was agreed upon – colonization has reeked havoc on individual, family and community life, so much so that all facets of life and living must be attended to in order to revive health. Healthcare in First Nation communities would have to delve into the SDH, issues of self-governance, and human-ecological interactions – across the life span. The multiple perspectives are evident in the following comments.

Our population has grown in the last few years. This place needs a hospital, should have had a hospital years ago (A002).

More resources instead of having to go out of the community for care, such as x-rays (A008).

We have different doctors coming and going but we need to have a permanent doctor stationed here (C003).

By far, not all of the research participants agreed that the antidote to the serious health inequities in Canadian society was more biomedicine. Most focused their discussions on the SDH, preventative measures, and on cultural traditions in order to create healthcare programming in line with First Nation perspectives on health.

There are lot of ailments in this community, major deficiencies regarding health and there is a disequilibrium of wealth. There is a lot of abject poverty and with poor health conditions. I don’t think access to healthcare is equitably distributed. Negative dynamics like drugs, alcohol, solvent abuse and dysfunction in peoples’ lives (C016).

When it comes to health, it’s not just the physical health of the person, it’s a whole lot of things that surrounds that person and preventing them from becoming healthier. We can focus on those things (D014).

We have to go back to the land. Going back to the land means going back to culture. Chopping wood, making a fire… we have to bring that stuff back (A007).

Reconnecting with the land is all a part of health and the governments can support us on that (A0101-2).

Results and discussion

Participants spoke to decolonizing health in their communities through four interconnecting themes. First Nation control of healthcare, implied full and engaged responsibility in attending to community needs and interests. Topics included the creation of protocols, constitution and laws that ensure room to grow and economic capabilities. Control of healthcare would encompass holistic, preventative approaches to healthcare, a decolonized mind and decolonized spaces, reviving richness of the traditional languages and deep understanding of the nourishing potential of the local expertise.

Next, participants saw colonization as an external imposition, squashing cultural traditions, manifesting fear through historical manipulations at multiple levels. They saw need for a re-education and revival, inclusive of every individual in the communities. They spoke of the need to establish safety in reconnecting to the land, its resources and to one another.

Full participation was discussed as a concept unlike consensus in Western discourses, rather, as it involves engagement in health transformation by all people, representing a diversity of perceptions, experiences and interests by all genders and ages. Full participation is a foundational requirement of self-determination.

Finally, moving forward was seen to necessitate a cleaning up of debris left behind by colonization. Participants spoke at length about the havoc colonization has reeked upon them personally and upon multiple generations within their communities. They spoke to the need to delve into SDH, self-governance, and human-ecological interactions that were affected across the lifespan. Inequitable distribution of resources, imbalances of power, lack of access to societal supports were the culprits to abject poverty, drug and alcohol addictions, and poor health across the spectrum.

The participatory research study gathered voices of First Nation community members on the topic of transforming primary healthcare practices, ultimately towards improving the health of First Nations. The stories, comments, and ideas culminated in an action-oriented response to decolonization. Across the communities, people knew what they needed in order to live a healthy life – to participate in the making of that healthy life. Contrasting the knowledge gained through data analysis raised a very important question – have we complicated health so much so that we have destroyed the simple logic of how to live a healthy life? It seems power and governance issues have had such detrimental impacts on humanity as to cause discernable differences based on race, class – the creation of boundaries between human beings. Participant interviewees shared community struggles in taking back their wisdoms about the land and healing properties of substances that come from it. Colonization shaped people to doubt themselves, to feel shame about the very things meant to keep them well in the world, in their governance, and in their interactions between others and the natural environment.

Wisdom, after colonization, was a privilege only of those who earned degrees from colonial institutions. In this way, Elders stopped sharing what they knew, and medical men and women almost went out of existence. Community members at large were not asked what they thought nor invited to participate in health development activities. Instead, they learned to consult with experts outside of themselves and their cultures. All of these losses were discussed. All shaped the SDH, the poverty, the serious addictions to drugs and alcohol that we see today.

In discussions on decolonization, participant interviewees talked of the need to encourage self-determination within the communities. They emphasized the value of full community engagement with respect to inclusion of different interpretations of and experiences in the world. They highlighted the creation of shared vision for health, a notion that is consistent with previously published research [ 21 , 22 ]. Self-determination is a capacity realized in common by members of a distinct political community, working together within shared political institutions to determine laws and policies that will share their individual and collective futures [ 21 ]. Engagement, for the participant interviewees, was essential for self-determination. Community empowerment developed out of a shared respect for the engaged work of community members – a kind of vitalizing medicine that develops from within.

The focus on full community participation in planning, knowledge sharing and decision-making is also in keeping with previous published research. For example, Smylie et al. [ 27 ] reported that local investments in all aspects of healthcare including planning, community perceptions of the programs as intrinsic, otherwise stated as having claimed a sense of ownership through high levels of engagement, are linked to positive health results.

Decolonizing health means clearing and taking back in a sensible and instinctual way, power. It involves a sharing of power – the power to know, based on being in the world and a power to do, according to one’s learned and sensual interactions with physical environments. The participant interviewees shared deep thoughts about reviving lost, hidden, and denigrated knowledges. Importance of cultural continuity, revival, and the relationship between preservation, health, and self-determination was studied previously [ 47 ,  23 ].

Limitations

The data presented represents the perspectives of participants in the 8 communities studied. It does not presume to speak for the other 63 Manitoba First Nation communities, nor elsewhere nationally and internationally. However, to the extent that all Indigenous peoples have experiences colonization, the study is relevant across the globe.

The paper focused on the work of community members from 8 Manitoba First Nation communities to decolonize health in Manitoba, Canada. Decolonization as a concept is consistent with the work of national and international commissions discussed in the background section of this paper. The participant interviewees, guides to our overall research program, informed on the nuts and bolts of decolonizing – the how to undo colonialism and its detrimental impacts.

From a decolonizing lens, this research adds an important dimension to advancing the knowledge-base as it raises the voices and iterates the perspectives and opinions of First Nation people – healthcare workers, directors, community leaders, Elders and members at large – on a grave and timely topic. Decolonization, as the participants of this research describe it, essentially involves all members of the communities, their wisdoms, and life experiences. Future research will only strengthen our understanding about how to move past colonization to greater inclusion, development of traditional medicines, and of being in and interacting with the natural environment. Ultimately, the data gathered over the course of this research will offer meaningful and transformative strategies for improvement of primary healthcare in First Nation communities, by empowered First Nation communities.

Availability of data and materials

All data used for this analysis are protected under privacy policies of the data stewards of FNHSSM, HIRG and within the terms of the institutional review board approval for this study, and are not publicly available.

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Acknowledgements

We are thankful to the 8 First Nation communities who participated in the study and the First Nations Health and Social Secretariat for taking leadership and providing oversight throughout the study.

Canadian Institutes for Health Research (CIHR) provided the funding for the research.

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Community Health Sciences, College of Medicine, University of Manitoba, Independent Researcher, Victoria, BC, V9C 0M1, Canada

Department of Community Health Sciences, Max Rady College of Medicine, Rady Faculty of Health Sciences, First Nation Health and Social Secretariat Manitoba and the University of Manitoba, Winnipeg, MB, R3B 2B3, Canada

Wanda Phillips-Beck

Education Indigenous Institute of Health and Healing, University of Manitoba, Winnipeg, MB, R3E 3P4, Canada

Grace Kyoon Achan

Department Community Health Sciences, Max Rady College of Medicine, Rady Faculty of Health Sciences, University of Manitoba, Winnipeg, MB, R3E 3P5, Canada

Josée G. Lavoie

First Nation Health and Social Secretariat Manitoba, Winnipeg, MB, R3B 2B3, Canada

Kathi Avery Kinew

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Contributions

All of the authors listed contributed to the research and writing of the paper, listed in the correct order above. Each author meets the authorship requirements as established by the International Committee of Medical Journal Editors in the Uniform Requirements for Manuscripts Submitted to Biomedical Journals. AK, JL, KAK conceived of the study. WPB, RE, and GAK developed and implemented the qualitative methods. WPB led on cultural safety for all aspects of the study design and delivery. RE created the first draft of the manuscript. All authors contributed to critical revisions and all have read and approved the manuscript.

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Correspondence to Rachel Eni .

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Ethics approval and consent to participate.

Participation in the study was voluntary and withdrawal available at any time. Full consent was given by each participant and by the community leaderships, as per First Nation community protocol and University of Manitoba ethics for scientific study. Ethical approvals were obtained from the University of Manitoba Ethics Board and from the Health Information Research Governance Committee (HIRGC), which is supported by the FNHSSM and is responsible for ethics reviews of all research proposals involving First Nations.

Consent to participate was communicated through Band Council Resolutions made by each participating community, after meeting by project team members. The research adhered to the First Nation principles of ownership, control, access and possession of data (OCAP), which gave the communities decision-making authority regarding the details of information collection, utilization, and management [ 9 ].

Permissions and consent forms included consent for participation, given by all participants, accepted by the ethical oversight committees. Qualitative data and material is available to the researchers with privacy protocols assured.

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Eni, R., Phillips-Beck, W., Achan, G.K. et al. Decolonizing health in Canada: A Manitoba first nation perspective. Int J Equity Health 20 , 206 (2021). https://doi.org/10.1186/s12939-021-01539-7

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Received : 08 February 2021

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Published : 15 September 2021

DOI : https://doi.org/10.1186/s12939-021-01539-7

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