Essays look at shortcomings of laws dealing with Canada's Indigenous community, and a way forward
Bruce McIvor, lawyer and historian, is a partner at First Peoples Law LLP, a Vancouver law firm dedicated to defending and advancing Indigenous peoples’ inherent and constitutionally protected title, rights and Treaty rights. His great-grandparents were recipients of Métis scrip in Manitoba’s Red River area. (Scrip was a coupon or an entitlement to land handed out by the government in the late 1800s to the Metis.)
In his book ‘Standoff,’ McIvor has written a series of essays dealing with his journey as a lawyer and as a member of the Manitoba Métis Federation. He also analyzes the historical and social forces underpinning Aboriginal law in Canada, describing its shortcomings and charting a practical way forward. We recently spoke to him on the eve of his book’s publication, in paperback and as an e-book, in mid-November.
Describe a bit about yourself, your interest in Aboriginal law and how you got to where you are.
I always tell people I indirectly became a lawyer because I picked too many rocks when I was a kid. My ancestors were among those Métis families displaced from the Red River [in Manitoba], and we moved up about 200 kilometres north. We went from some of the best agricultural land to the agricultural fringe in Manitoba, which is basically little strips of arable land between a rock ridge and swamps. I remember one day I was picking rocks in a field and realized my grandfather had picked rocks on the same field. There was no end to the rocks, and I needed to find something else to do.
That’s a roundabout way of describing how I became a lawyer. I did a series of degrees and a Ph.D. in history. Just by luck, I began working with some of the best Aboriginal law lawyers in Canada here in Vancouver, and they opened my eyes to what a career in the law could be. And I got excited about that. I ended up going back yet again to university and then became a lawyer.
Growing up, was there a lot of discussion about your Métis background?
Like many Métis families from that time, that cultural connection was not at the forefront of the family conversation. We were like a lot of displaced Métis families, particularly those from the Protestant side. Perhaps we didn’t have that strong cultural identity. I can’t speak for other family members, but I think there were a lot of people in the Métis community who had the idea that if you wanted to avoid the racism you saw all around you, it was best not to focus on your family history.
Right, but in your book, you talk about how you and your family embraced many parts of what your Métis ancestors did simply by how you lived your lives.
Yes, I did many things that would be classified as traditional Métis practices – hunting, trapping, picking berries. That’s what we did. It was part of making a living. My mom was the master of making do as best as possible, so we did a wide range of things.
Tell us more about your journey in claiming your heritage and joining the Métis Federation and the thought process that went into it.
I’ve written about my own thoughts in my book, and I have to stress that the important thing to keep in mind is that it is a very personal journey. For myself, putting it into the context of Canadian history and Canadian law, I looked at the issue of identity through the lens of the Canadian legal system and how it defines and restricts the ideas surrounding Indigenous identity. A perfect example for Métis is the [R v Powley] test set down by the Supreme Court of Canada. [It sets down ten factors that must be identified to determine a claimant’s legal claim to a Métis right.] When properly done, identity is based on Indigenous peoples’ own laws. It shouldn’t be done based on laws developed by either the federal government or the Canadian courts. But the reality is that is where we currently are.
For myself, going through it, I think there’s a huge responsibility. My great grandparents took Métis scrip at Red River. My grandparents were some of those Métis children promised land through Manitoba’s entry into Confederation, a promise that ultimately was broken by the government. It was these facts that, in a roundabout way, led to me becoming a lawyer. We were displaced. I think there’s a lot of responsibility to recognize your personal history. And if you don’t, if you turn your back on that, you allow the colonization project to continue. And looking forward, I always felt a responsibility to my children to recognize their Métis heritage.
But it’s a complicated issue for a lot of people. Especially for the Métis, it’s important to keep in mind that our lived experience can be very different from that of First Nations peoples. For those who are visibly Indigenous, their lived experience can be qualitatively different and often not in a positive way. As Métis, many of us have a choice of how we identify.
I want to turn now to one of the first essays in your book – talking about the “Doctrine of Discovery” – an idea that still looms large today.
It’s the principle that somehow colonizing nations can just show up on Indigenous lands, assert sovereignty over those lands and acquire an interest in those lands without reaching any agreement with the Indigenous people. While the Canadian courts have tried to play down the significance of the Doctrine of Discovery in Canadian law, I don’t think there’s much doubt that it’s still one of the fundamental principles underlying Indigenous issues. The Doctrine of Discovery is more of an American term. The euphemism we use in Canada is the “assertion of Crown sovereignty.” It’s fundamental to the issues relating to constitutionally protected rights in Canada and fundamental to Canada’s reconciliation discussions. What we’re dealing with here is a lie – the lie is that these colonizers can simply show up, plant a flag, and acquire an interest over Indigenous lands. For that reason, it’s going to be very, very difficult to move ahead with true reconciliation.
As a lawyer, describe how you approach the idea of Indigenous people negotiating or litigating. What do you tell your clients about the process?
A successful outcome involving Indigenous claims for justice is only going to be reached through negotiation. That’s where you get long-term solutions. The courts obviously have an important role to play, and the Supreme Court of Canada has underlined the importance of the legal process. But it is a limited role. I always tell my clients that the courts are not Santa Claus. They may be able to clarify things, create a roadmap for negotiations, and help ensure there is a meaningful remedy. What courts say may create the context and the incentive for resolution, but it’s a long road to get to the negotiation table.
How frustrating is it for your Indigenous clients that they feel no closer to resolution despite many years in court and negotiations?
It is very frustrating because it’s not a level playing field. Governments can drag things out, over and over again, wearing down Indigenous peoples’ ability to pursue these matters. And it’s unfair because Indigenous peoples often end up going to court to defend the exercise of their rights, and in doing so, they put themselves in a vulnerable position. They take a lot of risks. Because it allows government and industry to make all types of arguments that, if successful, would even further undermine the exercise of Indigenous rights.
Indigenous people have had their laws for centuries before colonization. How do you fit Indigenous laws – and there is no one Indigenous law because there are so many different First Nations – with the Canadian legal system.
The recognition of Indigenous laws and the creation of space to exercise Indigenous legal systems is some of the most critical work being done today. And we’re not talking here about Aboriginal law in the sense of laws relating to Aboriginal people created by the federal government and provinces. We’re talking about different First Nations having different laws and making meaningful space for those laws.
One of the chapters in the book discusses the importance of the Supreme Court of Canada’s decision in Daniels v. Canada (Indian Affairs and Northern Development. Can you go through it briefly and explain why it matters?
I think the decision in Daniels regarding Métis and non-Status Indians is significant because it resolved the outstanding fight between provincial and federal governments over which jurisdiction has responsibility [for Métis and non-Status Indians] for providing government services. It clarified that the federal government had responsibility for providing these services. In my situation, I am very fortunate that I don’t need these services, but a lot of Métis and non-status Indians do. And I think about when my dad died when I was young, and my mom had to go on welfare with eight children, how these types of services would have been beneficial to our family.
So, moving on to the idea of reconciliation there. Can you outline a path to reconciliation, and what would it take to accomplish? And what are the challenges?
Well, one of the first things I tell non-Indigenous people is that if reconciliation is making you feel good, you’re probably doing it wrong. I think it’s important for non-Indigenous people to grapple with the legal and historical reality of Canada. This conception of "Canada, the good," often compared to our American neighbours to the south, is a misconception.
This idea was articulated by former Prime Minister Stephen Harper when he infamously said that Canada has no history of colonization. It’s a dangerous misconception because it’s not just about Canada's history of colonization - colonization is ongoing. Canadians need to understand that when they see stories in the news of pipelines opposed by indigenous people, or First Nations trying to exercise their rights over a commercial fishery, those are all examples of issues relating to ongoing colonization.
I think reconciliation is possible. But one of the things that must be dealt with is that reconciliation can only happen if provincial and federal governments abandon their denial of the existence of indigenous rights. Because of their denial agenda, they put Indigenous people on the back foot all the time. This is what leads to a lot of these court cases. Governments need to abandon their denial policies. It's only then that we can move towards the meaningful, negotiated outcomes.
The courts have weighed in on the idea of “duty to consult” Indigenous peoples on projects that could impact their lives or land. How has that worked out?
If you look at the decision from the Supreme Court [Taku River Tlingit First Nation v. British Columbia], the Supreme Court set out what it saw as acceptable ways of consultation. However, it has become clear that this could become procedural and largely a matter of ticking off boxes. Unfortunately, in my perspective, over the last 16 years, that’s exactly what has occurred. And while the effectiveness of the duty to consult can lead at certain times to positive results, it’s clear governments and businesses focus on the procedural aspects of the consultation process, not the substantive aspects, which is accommodation. I always tell people that the duty to consult is not a duty to produce a consultation log. Instead, consultation should be viewed by governments as a process of seeking consent.
There are a lot of words coming from governments that sound promising, but often Indigenous people feel it’s nothing more than words. What is the danger in that?
I describe it as the gap between rhetoric and reality. And within that gap cynicism grows. I think that’s a real threat to Canada as a nation. It’s imperative that all Canadians, including non-Indigenous Canadians, hold governments to account. We all need to be demanding deliverables from our politicians. Because if not, then, for all Canadians, it calls into question the rule of law.