Indigenous Resistance as Authentic Existence: Past, Present and Future Legal Perspectives
Curtis LeBlanc, JD Candidate at UBC Allard School of Law
Indigenous resistance to Canada’s colonial project is as imperative as it was inevitable. In defiance of settler legal orders, Indigenous resistance—past, present and future—is defined by acts of authentic existence, critical to the preservation of Indigenous cultures and traditional knowledge. Presently, this struggle is characterized by the defence of Indigenous lands, which are essential to Indigenous ways of being and knowing. These acts of resistance have inspired collaborative international efforts to recognize Indigenous rights to sovereignty, self-determination, and jurisdiction, putting pressure on colonial states while providing a possible framework for decolonial Indigenous futures in which Indigenous peoples’ authentic existence is no longer threatened by law.
i. Indigenous and Settler Worldviews and Legal Orders: A Fundamental Discord
Indigenous resistance is founded in fundamental incompatibilities between settler colonial systems and the ways of being and knowing that are traditional to the multitudinal Indigenous peoples on the continent. To understand the nature of Indigenous resistance and resurgence, it is crucial to consider how Indigenous and settler worldviews differ.
When European settlers first arrived on the land we now call Canada, they brought a sociopolitical framework based on centuries of feudal arrangement, an emerging liberal constitutionalism, and a human-centric worldview that positions people above the rest of the natural world—what Anishinaabe legal scholar Aaron Mills refers to as a “foundational presumption of earth-alienation” [emphasis added]. Settler positionality contradicts the “rooted constitutionalism” born from creation stories “rooted in earth”, which Mills suggests are foundational to all the Indigenous peoples of Turtle Island. This disharmony is especially apparent in the historical records of the implementation of settler property systems, as evidenced by the lack of understanding between parties when negotiating treaties.
The Eurocentric liberal worldview extends the alienation between humans and the natural world to define human relations as well. According to this logic, humans “exist . . . as inherently disconnected units”. This core belief leads to two presumptions of law and social order that have proven to be catastrophic to Indigenous ways of life: first, the protection of “the self’s experience of non-interference from the choice-limiting actions of others (negative liberty)”; and second, “the self’s entitlement to a specified set of collective goods taken as necessary for establishing and securing its personal autonomy (positive liberty)”. Conversely, under Indigenous legal orders, freedom is not inextricable from one’s obligations to community and earth; interdependence, mutual aid, and collective wellbeing are on even standing with liberty. Juxtaposed with settler law’s core presumptions of self-interest and the adversarial system arising from these inevitably competing interests, one begins to see just how irreconcilable settler and Indigenous ways of knowing and being are. It is these incompatibilities which give rise to the need for Indigenous resistance—and define its nature.
Ultimately, the goals of the colonial project are land theft and the subordination of Indigenous rights to self-determination, sovereignty, jurisdiction, and identity. In light of these aims and Eurocentric traditions predominantly based on self-interest, earth alienation, and false ideals of white supremacy, Mills argues that the colonial worldview is “irredeemably committed to violence”. Faced with such antagonism—and embodying ways of knowing and being antithetical to the dominant settler logic—Indigenous resistance became not only inevitable, but defined by radical acts of continued authentic existence.
ii. Indigenous Resistance Through Authentic Existence: A Brief History
In 1885, Canada hosted its largest-ever public execution in North Battleford, Saskatchewan when six Cree and two Assiniboine leaders were hanged before a crowd of hundreds of onlookers. Viewed as responsible for the Frog Lake Resistance, which formed in response to the mistreatment of Cree and Assiniboine communities and the government’s failure to adhere to treaty obligations, the eight resistance leaders were charged with treason. The Crown never explained how the leaders had come to be subjects of the Canadian colonial government in the first place, and the absence of a Cree definition for the offence meant the leaders were never afforded a proper legal defence. An additional 40 First Nations leaders would be incarcerated in Stony Mountain Penitentiary for the same offence, with 60 others convicted of different charges following the resistance. It was their pursuit of an authentic existence, in which their rights to live according to their traditional ways were upheld, that fueled the uprising.
As the colonial project took hold in Canada, the implementation of settler legal orders made living authentically a radical act of resistance for Indigenous peoples across the continent. The portrayal of Indigenous peoples as “savages” who needed to be civilized was instrumental in framing their lands as lacking legal order. This provided the ongoing justification for the imposition of settler law as colonies expanded, and it created “a construction of the colonized as inferior that subordinated their welfare to the colonizer”. Through this legal subordination of the liminal spaces at the ever-expanding edge of the colonies, settler law and logic were reproduced. The result was the erasure of Indigenous sovereignty and jurisdiction and the criminalization of Indigenous peoples’ traditional ways of life. In such circumstances, continuing to live as such became a de facto act of radical resistance.
One of the colonial government’s most obvious efforts to restrict the proliferation and perpetuation of certain Indigenous ways of being was the criminalization of potlatch and sundance ceremonies in 1884 and 1885. The potlatch, integral to First Nations communities in the Pacific Northwest, and the sundance, a gathering paramount to First Nations on the Prairies, were both “spiritually significant . . . aspects of culture” and played a key role in “social organization and the economic practices of communities”. Though these ceremonial events were outlawed, their practice continued in secret until the legislation was repealed in 1950. For decades, First Nations communities risked criminal punishment for participating in these ceremonies, which were crucial to their way of being. Yet, they persisted, because doing so meant the survival of their collective traditional knowledge. The sundance and potlatch took on new significance during this period: that of a collective act of resistance to settler colonial rule.
Along with the abolition of traditional ceremonies, the reservation system, which arose out of treaty negotiations and the Indian Act, restricted the movement of First Nations peoples within their traditional lands. One of the primary tools Indian agents used to impose these limitations was the pass system. By requiring First Nations individuals to have a pass granted by an Indian agent to leave reserve lands, the Department of Indian Affairs rendered individuals unable to traverse their traditional territories. They were confined to only a small section of that land, with borders drawn and redrawn by colonial powers. This policy was recognized as having “no legal basis” but was enforced regardless—revealing the inconsistencies in settler logic underlying the Department of Indian Affairs’ actions. These measures were enacted in response to growing fears of political organization by Indigenous leaders following the rebellions of 1885. The result of the policy was that travelling on one’s traditional territories, without the colonial government’s express permission, became yet another act embodying resistance.
While the pass system made movement within traditional lands a radical act, restrictions on hunting and gathering did the same for traditional forms of sustenance. By entrusting natural resource control to the provinces, who had no responsibility to Indigenous peoples under the federalist colonial arrangement, the federal government essentially eschewed any promises to resource access in the treaties they had negotiated. This left Indigenous communities under an onerous and discriminatory licensing and conservation regime that obstructed or prohibited traditional activities such as “trapping, hunting, fishing and . . . wild rice harvesting” off reserve. The ways in which Indigenous people had sustained themselves on their traditional lands for millennia now exposed them “all too often [to] fines and imprisonment”.
Canada’s efforts to dominate and restrict Indigenous peoples extended to Indigenous family life. The Indigenous family unit became a focus of colonial policy, as the government carefully monitored and managed “[s]ex, marriage, and domesticity”. Of particular interest to the Crown was gender identity and the role of Indigenous women in families and communities; thus, “Indigenous women’s bodies, much like Indigenous lands, became marked as both criminal and lawless spaces”. To live authentically as an Indigenous family or embody traditional conceptions of Indigenous gender, whether in private or public, became a subversive way of being. Indigenous women, in particular, became living examples of resistance by virtue of existing in their own corporeal bodies.
The application and ramifications of this settler logic also extended to Indigenous children. The residential school system was one of the most blatant and destructive assimilative initiatives in Canada’s history. By removing First Nations, Inuit, and Métis children from their homes and forcing them to attend boarding schools jointly run by church and state, the government sought to deny these children “their identity through attacks on their language and spiritual beliefs”. The government exacerbated these harms through its “failure to provide adequate food, clothing, medical services and a healthful environment, and the failure to ensure that the children were safe from teachers and staff who abused them physically, sexually and emotionally”. This neglect resulted in high mortality rates among those in attendance. Though the Indian Act amendments in 1894 gave government agents de facto power to compel Indigenous children to attend residential schools, mandatory attendance for children between the ages of seven and fifteen became law in 1920. This meant that the colonial strategy of depriving Indigenous children of their traditional modes of education and family life became ubiquitous across Canada. Refusing enrolment subjected parents to summary conviction punishable by fine or imprisonment, while their children would be subsequently “arrested without a warrant” and forced into attendance.
iii. Indigenous Resistance Within a Contemporary Context: Injunctions and Land Defence
From its inception, the colonial project has been one of land dispossession and subjugation. One cannot talk about Indigenous resurgence, reconciliation, or decolonization in a Canadian context without returning to the colonial occupation of the land itself. Through the violent and systemic acquisition of Indigenous lands, settler legal orders subsumed Indigenous sovereignty and self-determination. As Kanien’kehaka scholar Taiaiake Alfred asserts, “[i]t’s all about the land”. It follows, then, that the frontlines of land defence are one of the most pressing sites of present-day Indigenous resistance and resurgence. This issue has become one of the most legally contested areas in contemporary Aboriginal law.
The enactment of the Constitution Act, 1982 codified rights for Indigenous peoples and opened the door for new Aboriginal law jurisprudence to develop. Section 35(1) recognized and affirmed “existing aboriginal and treaty rights of the aboriginal peoples”, while section 35(3) acknowledged and clarified rights to land claims as they existed at the time of writing, as well as those that may be acquired through future land claims. However, as Canadian courts began to interpret the new Charter of Rights and Freedoms entrenched in the Constitution, much of the success Indigenous parties had enjoyed in seeking injunctions based on land claims gave way to an overwhelming willingness of the courts to grant deference to non-Indigenous private or state interests in similar decisions.
For Indigenous parties seeking injunctive relief, complications with the existing common law test for granting injunctions developed out of the jurisprudence interpreting the new Constitution. What was, on its surface, a watershed moment in Canadian history acknowledging the rights of Indigenous peoples actually created difficulties for peoples seeking to assert those rights by way of injunctive relief. The subsequent jurisprudence evolved to favour the settlement of land claims outside of the legal realm of injunctions and, instead, through lengthier litigation focused on the section 35(1) duty to consult. Furthermore, the time and labour required to compile evidence for such claims—a process outlined in the landmark cases of Sparrow and Delgamuukw—favoured private interests in the “balance of convenience” test. Consequently, the immediate relief sought through injunctions became practically unavailable to Indigenous parties, as they were diverted to other legal avenues to settle land claims. Thus, the possibility of harm to Indigenous lands remains while land claims are litigated.
These legal outcomes have had tangible repercussions for Indigenous land defenders. According to the Yellowhead Institute at Toronto Metropolitan University, “from the years 1973-2019, 76 per cent of injunctions filed against First Nations by corporations were granted, while First Nations were successful against corporations only 19 per cent of the time”. A year later, researchers found that the success of corporate injunctions rose to 81 per cent while the success of Indigenous claimants fell to 18 per cent. Injunctions in favour of the government were granted 90 per cent of the time. In granting injunctions like these, courts often find Indigenous land defenders to be trespassing on their own ancestral lands.
Land defence remains critical to preserving Indigenous ways of knowing and being, as Indigenous traditional knowledge is inextricably tied to the land itself. Until these lands are no longer under threat from settler dispossession and subjugation, the actions of Indigenous land defenders will continue to be necessary acts of resistance. The degree to which Canadian courts will help or hinder them in the future remains to be seen.
iv. A Platform for Future Indigenous Resurgence: UNDRIP
Adopted by the United Nations (UN) in 2006, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) attempts to codify the fundamental rights of Indigenous people globally. Specifically, article 3 asserts the right of self-determination for all Indigenous people, and article 34 states that “Indigenous peoples have the right to promote, develop and maintain their institutional structures and their . . . traditions, procedures, practices and . . . juridical systems”. These articles explicitly call for the restoration of Indigenous peoples’ sovereignty and jurisdiction to their traditional, pre-colonial forms.
However, UNDRIP has limitations in effecting real change in existing settler states. Though drafted in consultation with Indigenous peoples, the UN member states alone ultimately wrote the final version of the Declaration, and Indigenous nations continue to be treated as non-governmental organizations by the UN. The damage of this approach is most apparent in the final changes, included at the insistence of English-speaking states, to article 46. Subsection 1, added through this eleventh hour editorial effort, preempts “any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States”. In essence, article 46 grants a safety valve for self-preservation to existing colonial nations. Finally, because it does not exist as an international convention or treaty, “UNDRIP is technically not legally binding under international or domestic law”.
Considering its potential implications for settler states, it is perhaps unsurprising that Canada, the United States, Australia, and New Zealand all initially opposed the UN’s adoption of UNDRIP. Nevertheless, Canada has subsequently passed legislation acknowledging UNDRIP, though refers to the legislation only as a “framework” for the Declaration’s implementation.
Despite its shortcomings, UNDRIP represents a unique and persuasive opportunity to effect substantial change in Canada. As a comprehensive international declaration of the rights to sovereignty, self-determination, and jurisdiction for all Indigenous peoples, with statutory recognition at both the federal level and provincially in British Columbia, UNDRIP is an important blueprint for future resistance and resurgence. Sheryl R. Lightfoot sees it as a normative tool for change at the state level, in part due to ongoing international recognition of its important human rights elements and the subsequent pressure on nations to adapt to new globally accepted norms. Hayden King notes that as “Indigenous people, communities and nations continue to advocate, through state legal channels or not . . . [through] blockades and land reclamations to shared jurisdictions schemes”, all of these acts of resistance “reference UNDRIP as a powerful, discursive tool”.
It remains to be seen what UNDRIP’s legacy will ultimately be in Canada’s colonial history, but it may be a springboard for future Indigenous resurgence. As Chief Na’Moks (Tsayu) of the Wet’suwet’en Hereditary Chiefs stated on unceded Musqueam territory at the University of British Columbia, the declaration represents “where Indigenous people want to go”, and as those with the right to enforce and implement it, Indigenous peoples must act as “the hammer” through which this resurgence is accomplished.