Reflections on Land Back

By: Isadore Day


Founder of Nationhood Council House (NCH) and CEO and founder of Bimaadzwin Inc, Isadore Day Wiindawtegowinini is Anishinaabe and resides in Serpent River First Nation with his family. A former Regional Chief of Ontario, Lake Huron Region Grand Chief, Vice Chair of the North Shore Tribal Council and Chief of his community, Isadore has served 15 years as an elected leader for First Nations. He is hereditary to Chief Shingwauk, Wiindawtegowinini and Genebek, who signed the Robinson-Huron Treaty and the Manitoulin Treaty. He has handled various high-level policy files including the chairing of the national health portfolio for the Assembly of First Nations (AFN). With an education background in the area of public administration, governance, social work, and business, Isadore‘s career began in 1990’s as a social worker for Indigenous communities. By 2003, Isadore had joined his community’s council to focus on asserting Inherent and Treaty rights. Over the years, while being involved in various boards and committees, at both regional and national levels, Isadore remains a strong grassroots visionary. His main focus is on Indigenous Nationhood and Sovereignty rights for reconstituting Indigenous Nations on Turtle Island.

Land Back

Canadians are hesitant to discuss the concepts of Land Back, Indigenous Sovereignty and Inherent Jurisdiction. Such conversations are difficult to have with settlers as they often get defensive about how they came to be on this land that we now call Canada. ‘Land Back’ is a relatively new phrase that is emerging out of the Canada-First Nations situation. At first, ‘Land Back’ could be mistaken to be an “everyone, except for the Indigenous peoples, go back to where you came from” narrative, but it is not that. The situation is more complex than that and it should not be simplified in order to shutdown discussion. To me, in easy-to-understand language for a lay-Canadian, it means to understand the history of where you live and also, how you get your livelihood. It means to understand what was stolen and what continues to be stolen to enable your gain. And then understand what has to happen to stop this ongoing theft. Canadians need to connect these dots and then work on the relational accountability that they owe to the Indigenous Peoples. In a nutshell, ‘Land Back’ is about taking on outcome-based corrective action – by considering what happened, where we are stuck now and where we should be.

What happened

The five structures that define and sustain Canada and its continued land theft are — Doctrine of Discovery[1], Doctrine of Reception[2], British North America Act[3], the Confederation[4] and the Indian Act.[5] The basic premise of the new arrivals in 17-18th century was to settle on lands previously occupied, with their respective monarchs and church leaders enabling this illegal activity by creating any law possible. These include the “Doctrine of Discovery”[6] – a lie that no one occupied the Americas pre- European discovery – and the “Doctrine of Reception”[7] – that only English or French laws will be imported and imposed on the original occupants of this land. With those doctrines in place, colonial laws kept getting created, such as the Canadian Confederation,[8] Indian Act,[9] Residential Schools[10] and more. There was a ban on voting, ban on hiring lawyers, ban on how we used our lands. Sweeping and extensive tracts of land across Turtle Island were seen as up for taking by the settlers. The quick enshrining of these early colonial laws and constitution has led to two centuries of a complex web of case law that continues to sustain a land grab. Organizations like ours have a list of such case laws. None of this ever had First Nations at the decision-making tables. Why would it? Which First Nation would have said “Yes – take my land, and then my children, my language, my very way of being”?

Also, we all need to question exactly what  is “Crown” land — a term pulled out from thin air in time of occupation and now a highly entrenched term in Canadian courts  — or, who decides how this so-called “Crown” land (or, public land) is handed out or managed,[11] all these are nothing but the continuing by-products of the foundational piece I speak about — the five illegal constitutive structures that define and sustain Canada and its continued land stealing.

Where we are stuck now

 So, since the basic foundation of the current relationship rests on unlawful premises, something that mainstream Canada is still not talking about — it is not in school curriculum, it is not in Canadian citizenry tests for those who have recently become “Canadians” — we are all going about current land stewardship like the parable of the blind men and an elephant. I think this ancient story is from the Indian subcontinent. A group of blind men who have never come across an elephant before learn and conceptualize what the elephant is like by touching it. Each blind man feels a different part of the elephant’s body, and then describes the elephant based on their limited experience. Each description is different, and they even come to blows for disagreeing. The moral of the parable is that humans tend to claim a truth based on their limited, subjective experience. Settlers in Canada ignore the basic premise – that this land has lived experience of thousands of years by the Indigenous people. And that it was stolen. I do not have to detail the devastation— the land encroachment, the environment devastation, the Indigenous society devastation – that has taken place in last two centuries, especially in the last 50 years. Pick up any report on Indigenous peoples to know that. It is time for Canadians to connect the dots… if you take an Indigenous child away to state care,[12] you get easier access to land. If you allow the Missing and Murdered Indigenous Women and Girls (MMIWG) crisis to happen,[13] it gives you easier access to land.

Where we should be

There is so much that can be done, much of which has already been researched and reported on, beginning with the Royal Commission on Aboriginal Peoples (RCAP) in 1996.[14] RCAP details solutions to the challenges affecting the relationship between the Indigenous Peoples, the Canadian government and Canadian society as a whole. A reset/reconstitution is the desired outcome for a more just system of land governance. These are difficult and unfathomable words, I know, but this has to be done in order for our system to be just. Our communities must be treated as nations with our own laws. Currently, we do not even have veto power on extractive projects. If we do not repair and reset the very foundation, the house will continue to stand on a weak base. There are thousands of non-Indigenous lawyers in this country; as they go about their livelihood, my first call to action to them would be – to please do some self-reflection and ask themselves where their law/the Canadian law, originally stems from. And then knowing that, why are they continuing to go about business-as-usual? If the Canadian Constitution was imported in a matter of days, surely, corrections can be made in similar time frame. Each passing day of status quo is a day of unlawfulness that they help retain.

Lastly, if there is one simple thing that I could request of the allies, it is to focus and prioritize. There are a myriad of issues and problems in our current world. And it is easy in this age of connectivity to be constantly distracted. But if you understand that the problems in Canada today stem from the foundation of illegal occupation – whether it is environment degradation, racism, infrastructure inequity, youth incarceration or suicide, third world-like poverty – then prioritize that foundational issue first. Ask for a reset of Canadian laws and Constitutive structures. Let us work on foundational pieces. Indigenous organizations like ours have many ideas.

[1] See generally “Dismantling the Doctrine of Discovery” (2018), online (pdf): Assembly of First Nations

[2] See e.g. JE Cote, “The Reception of English Law” (1977) 15:1 Alta L Rev 29.

[3] See Constitution Act, 1867 (UK), 30 & 31 Vict, c 3.

[4] See ibid.

[5] See Indian Act, RSC 1985, c I-5.

[6] See Constitution Act, supra note 3.

[7] See e.g. Cote, supra note 2.

[8] See Constitution Act, supra note 3.

[9] See Indian Act, supra note 5.

[10] See generally “Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada” (2015), online (pdf): Truth and Reconciliation Commission of Canada

[11] Our organization is studying the rapid spread of suburbs, mining and other extractive corporate agencies in last few years in previously “Crown” lands.

[12] Indigenous children are over-represented in the Canadian child welfare system: see e.g. Ontario Human Rights Commission, Interrupted Childhoods: Over-Representation of Indigenous and Black Children in Ontario Child Welfare (Toronto: OHRC, 2018).

[13] See generally “Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls” (2019), online (pdf): National Inquiry into Missing and Murdered Indigenous Women and Girls (the Final Report found that “persistent and deliberate human and Indigenous rights violations and abuses are the root cause behind Canada’s staggering rates of violence against Indigenous women, girls and 2SLGBTQQIA people”).

[14] See Canada, Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples (Ottawa: Canada Communication Group, 1996).