Indigenous Peoples continue to face deep structural inequality in Canada

Inequality is measured at many angles: income, opportunity, life expectancy, ability to access one’s own history or traditional territory. Inequality is built into the very foundation of Canada.

For Indigenous Peoples, this plays out over centuries, at various scales and with cumulative consequences. Decrees forbidding free trade of hides. Cutting off access to ways of life via reserves and residential schools. The swindle of Métis scrip. Barring First Nations people from hiring lawyers.

There is no shortage of examples of structural inequality created at the hands of the powerful on these lands.

Treaties, negotiated between European nations and First Nations, were intended to outline the rights, responsibilities, and relationships necessary to share the land peacefully. The text of treaties omitted notions central to Indigenous Peoples and quickly led to paternalistic laws and policies that created a separation and a sequestration of First Nations people onto reserves.

These concerted efforts led to land theft while systematically cutting off Indigenous Peoples from the lands they depended on for survival—physically, culturally and spiritually.

Indigenous Peoples have an inherent right to land that is based on foundational concepts of relationship, responsibility, and reciprocity.

The mass displacement of First Nations, Métis, and Inuit, in different and painful ways, was a foundational blow to the equality promised in treaty making. Indigenous Peoples have lived on, and in relation to, land on Turtle Island since time immemorial, managing territories, water and resources in accordance with their own laws and governance systems.

Dispossession from our land and related law-making left us subject to colonial laws that perpetuate and promote inequality, historically and at present.

From 1927 to 1951, the Indian Act made it illegal for status Indians to hire lawyers or seek legal advice, fundraise for land claims, or meet in groups. If a First Nation person wanted to become a lawyer, they were forced to renounce their status.

Until 2008, section 67 of the Canadian Human Rights Act prevented anyone from filing a complaint about anything related to the Indian Act. Since the Indian Act was not subject to the oversight by the Canadian Human Rights Tribunal, First Nations people were banned from challenging discriminatory provisions, policies, practices or procedures that governed their everyday lives.

Inequality is embedded in the law and is often the result of avoidance, ignorance or jurisdictional buck-passing.

Until 2016, provincial and federal governments played hot potato with Métis and non-status Indians. For over a century, the federal government refused to recognize that section 91(24) of The Constitution Act, 1867 included Métis and non-status Indians.

Effectively, Canada’s refusal to recognize its constitutional obligations to Métis and non-status Indians meant these Indigenous communities were stuck “in a jurisdictional wasteland with significant and obvious disadvantageous consequences,” according to the Supreme Court of Canada’s judgment in the Daniels case. This ruling confirmed that Métis and non-status peoples are considered Indians under section 91(24) of the Constitution Act, 1867, meaning the federal government, rather than provincial governments, bears responsibility. The result of this jurisdictional hole was decades of lost funding, support, and government partnerships. 

Another galling example of legal neglect of Indigenous Peoples involves the care for First Nations children with disabilities. Because of overlapping jurisdictions for health care services on reserve, federal and provincial governments would refuse to provide services to children with disabilities until ‘appropriate’ funding was determined. This meant First Nations children missed out on life saving care, facing lifelong disabilities for lack of early intervention.

Landmark human rights cases led by Cindy Blackstock and the Child and Family Caring Society resulted in major changes to how governments approach funding and support for Indigenous children with disabilities. Now, Jordan’s Principle requires governments to provide services before worrying about funding. However, this principle does not apply to Indigenous Peoples with disabilities over the age of 18; they are left to fight for services in that jurisdictional wasteland.

Finally, even when jurisdiction is not an issue and Indigenous Peoples are represented by counsel, seeing success in courts is never guaranteed. While there continues to be big legal wins for Indigenous Peoples in Canadian courts, major legal hurdles still exist. They are perpetuated by unequal application of the law.

One particularly striking example involves the Canadian courts’ application of injunctions. A study from the Yellowhead Institute in 2019 revealed that only 18.5% of injunctions brought by First Nations people to protect their constitutional rights succeeded.

The institute determined that not only do courts heavily favour protecting private, business interests above constitutionally protected Indigenous rights, this extremely low success rate “calls into question fairness and equity in the use of this remedy within the Canadian legal system.”

For courts and other legal institutions to continue to function with integrity, the public must see that justice is being dispensed fairly and in the public interest. The court’s tools must be reconsidered when they infringe on the inherent rights of Indigenous Peoples.

Colonial law was never designed to protect us, our lands, or our ways of being. It remains a sharp axe to hack away at our inherent rights, while favouring private development over the constitutionally protected right to our lands.

Colonial law is also used as a shield to avoid scrutiny, accountability and constitutional obligations, often leaving Indigenous Peoples without the same supports and access to health, education, clean water as well as livelihoods that other Canadians take for granted.

This is in addition to reclaiming and relearning the spiritual and cultural elements that were forbidden under the Indian Act in a world that is still racist and oppressive today.

Governments can, and should, address these entrenched forms of inequality. Instead, they often try to shield themselves under the guise of jurisdiction, eschewing responsibility for righting basic wrongs.

By relying on jurisdiction, governments try their best to avoid their constitutional and treaty obligations to First Nations, Métis and Inuit peoples. Indigenous Peoples are forced to take their cases to human rights tribunals or courts simply to have their basic needs met.

The cumulative impact of these structural inequalities reach every sphere and the very basis of a good life: access to land, housing, education, culture, health care and a fair justice system.

It should be a communal project to address the ways in which our institutions and landscapes are made unequal, especially for those who’ve stewarded this land for time immemorial.

Indigenous ways of being are balanced by design and the reclamation and resurgence of Indigenous Peoples will push society in that direction. It’s time for governments and institutions to meaningfully remove barriers and address inequalities to ease the way.

This work isn’t metaphorical, it’s structural.