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September-October 2016

It’s time for Canada to recognize Indigenous peoples as equal founders of our country

On rewriting Canada's origin story

Kathleen Mahoney@ProfMahoney

ThisMagazine50_coverLores-minFor our special 50th anniversary issue, Canada’s brightest, boldest, and most rebellious thinkers, doers, and creators share their best big ideas. Through ideas macro and micro, radical and everyday, we present 50 essays, think pieces, and calls to action. Picture: plans for sustainable food systems, radical legislation, revolutionary health care, a greener planet, Indigenous self-government, vibrant cities, safe spaces, peaceful collaboration, and more—we encouraged our writers to dream big, to hope, and to courageously share their ideas and wish lists for our collective better future. Here’s to another 50 years!


In 2017 Canada will celebrate the 150th anniversary of Confederation. Canada’s origin story will be revisited—the story of the British North America (BNA) Act, the Fathers of Confederation, and the British/French duality that together formed the bedrock of the free, equal, diverse democracy we believe ourselves to be.

But here’s the problem: our origin story is false. In 1996, the Royal Commission on Aboriginal Peoples observed, “A country cannot be built on a living lie.” Coming to terms with our true origin story is long overdue. Recognition that Indigenous peoples were founders of the nation must be acknowledged in a formal, legal way. Only then will there be a solid foundation for Canada to reconcile its past and lay the foundation for a new relationship with its first peoples.

The accepted story of Canada’s origin tells us the nation came into being on July 1, 1867. Thirty-six “Fathers of Confederation,” representing the British and the French colonial powers, signed the BNA, setting out the governance structure for the new country. Significantly, it protected the English and French languages, cultures, and civil rights. Indigenous Canadians are invisible—even though they were present on the land for thousands of years prior to Confederation and without their contributions Canada would not be the country it was then or now.

Take, for example, the vast tracts of land acquired through treaty negotiations with the Indigenous peoples—lands that have produced immense riches, making Canada one of the wealthiest nations in the world.

Indigenous people have received neither recognition for their nation-building contributions, nor a fair share of the ensuing wealth. Instead, they were classified as non-citizens and subjected to unequal treatment based on racist philosophical and legal justifications—namely, the discovery doctrine and the formal equality principle.

The discovery doctrine was the self-serving legal principle whereby Europeans claimed rights of sovereignty and ownership of regions they “discovered.” Under this doctrine, Indigenous peoples could not claim ownership of their lands, but only the right to occupy and use the land.

The formal equality principle dates back to Plato and Aristotle, whose definition of equality was that likes were to be treated alike. As such, discrimination against slaves, women, and Indigenous peoples was not considered unequal treatment.

Together, the two principles assured the perpetual dominance of the British and the French founders over the land and the permanent subordination of the Indigenous peoples who occupied it. The Supreme Court of Canada finally rejected the formal equality principle in 1989, saying it could justify Hitler’s Nuremberg laws. The discovery doctrine, too, has been widely discredited as racist and in violation of fundamental human rights. Yet these doctrines have underpinned Canada’s origin story and left Indigenous Canadians marginalized, dispossessed, and unrecognized. The 150th anniversary of Confederation is an opportunity to set the record straight. Parliamentarians, after discussions with Indigenous leaders, provincial governments, and civil society, pass a statute to formally recognize Indigenous peoples as equal founders of Canada. This will allow all Canadians—Indigenous and non-Indigenous alike—to celebrate the possibilities for lasting reconciliation and set the stage for a genuine nation-to-nation relationship of equality and respect.

Professor Kathleen Mahoney QC, FRSC, was the Chief Negotiator for the Assembly of First Nations for the historic Indian Residential School Settlement Agreement. She was the primary architect of the Truth and Reconciliation Commission

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