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Individual and Collective Identity

The history of Indigenous-Canada relations has consisted of a continuous assault on both the collective and even the individual identities of indigenous peoples.  This legacy includes the denial of the collective personality of the Six Nations with respect to the Haldimand tract, the attacks on individual and collective identities which were comprised, in part, by Canada’s policies on residential schools and mass adoptions of First Nations children.  And this legacy continues today as legislative and judicial tinkering with legislative definitions of identity, with concepts such as “Indianness” and policy & funding decisions related to indigenous children.

The most fundamental aspect of the right to self-determination is the ability to determine the composition and definition of a group.  The Indigenous Rights Centre will advocate for that aspect of the right to self-determination to be respected by Canada.

Individual Identity
Assaults on individual identity have made debates on whether one is captured by section 6 of the Indian Act somehow relevant to First Nations.  Why?  It is First Nations, acting through customary law, or through whatever rules they determine are best, which should be deciding who should be able to identify as a member of their nations.  

The concept of a pan-Indian identity (status) is derogatory to the collective identities of First Nations because it involves Canada dictating and defining the composition of a collective rights holder (which allegedly holds a right to self-government).  Metis also struggle with Canadian interference in defining the composition of their collectives.

Under Canadian law, aboriginal rights are typically defined as ‘collective’ rights.  Yet it remains unclear whether, and to what extent, those rights may be exercised by ‘individuals’.  This ambiguity deprives the ability of indigenous peoples to access procedures, such as class actions, to achieve justice and modify the behaviour of the Crown.

Collective Identity
Aboriginal rights are defined based on practices which pre-date contact with Europeans.  However, the preferred collective rights holder for aboriginal rights have often been formed, by government, decades or centuries after contact.  Meanwhile, the successors-in-interest to the true rights holders are often ignored by the Crown or the courts. For example, First Nations band councils are creatures of the Indian Act - they not only couldn’t exist prior to contact, but they couldn’t exist, as legal entities, until the Indian Act itself was developed by Parliament.

Where an indigenous nation determines that a First Nation is a valid successor-in-interest to a pre-existing indigenous nation, then Canada should recognize the First Nation as such.  But it is the indigenous nation itself, and not Canada, that should make that determination.