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Criminal law ejects Indigenous peoples from the frontiers


A legal system designed to settle new territories and eject the resident population. A security apparatus installed to monitor the movements of dissenters. Collective punishment meted out with cruel ferocity. This is not Orwell. It’s a description of the legal mechanics deployed by the Canadian and Australian states as they set out to settle western “frontiers.”

In Fragile Settlements: Aboriginal Peoples, Law, and Resistance in South-West Australia and Prairie Canada, Amanda Nettlebeck, Russel Smandych, Louis Knafla and Robert Foster describe this process in heartrending detail as they compare the use of criminal law as a tool of Indigenous removal on the 19th-century frontiers of both countries.

This book is important in understanding the ways that Australia and Canada have recently begun to reconcile the violence of their pasts and the implications for the present. The western regions of both countries underwent similar settlement trends in the 1880s. In both places, an aggressive and expedient settler expansion followed a more gradual and subtle form of colonization of easterly territories. In both places, criminal law was used as a means of “containing and ejecting” Indigenous peoples from land that was slated for agricultural development and urbanization.

Yet while the process was similar, the structure was different. Canada had a much larger and com- plex system in place that the Indian Agents could rely on versus the more limited and disordered system that Australia used. Without treaties and without perceived consent, “Protectors of the Aborigines” in Australia were expected to be versatile and adapt to the changing nature of the frontier in deal- ings with Aboriginal peoples. Indian Agents, however, in collaboration with the North-West Mounted Police, enforced a pass system that was in direct contradiction of treaty rights.

The Pass System gave the power for the two agencies to require that passes be issued for Indigenous peoples to leave their reserves. The Mounties, who primarily served the settlers, complained that the agents gave these passes away too freely. The settlers were on constant alert for the protection of their property from roaming Indigenous peoples, the main responsibility of the thinly stretched NWMP.

At the same time, in the prairies of Canada, anger boiled over and tensions simmered between Indigenous leaders and reserve managers. On the Black- foot reserve, a government ration issuer was shot after withholding food in times of dire hunger. Nothing was desperate about the shooting; the government agent was shot for his austere manners.

This book is powerful in its ability to reveal the capitalist motivations of the state and the greed of the settlers that effectively created a violent culture that has developed in both regions and which, to a great degree, continues today. The cross-comparison allows readers to see the transnational and global qualities of settler colonialism, an element key to engaging in reconciliation. If the restoration of our communities is to occur and the violence of the past is to be understood, the criminal justice system in both countries needs to be transformed (and perhaps abolished). Criminalizing the hungry and the marginalized is systemic and has a history as old as the nation-state itself.

What I appreciated most about this book is what I initially felt uncomfortable with: there is limited mention of the Indigenous perspective or acknowledgment of the direct impacts that the criminal justice system has had on Indigenous ways of life.

The book breaks from the constant examination of Indigenous peoples and instead rests its gaze on settler society and the system that upholds their material privileges. The focus on the justice system and its use of criminalization in the private property protection of the settlers reveals something important about the dominant economic systems operating in these two countries: there is, in fact, no “Indian Problem,” but rather a very real settler problem.

Kimberly Wilson is a coordinating editor of Canadian Dimension. Kim works as an adult educator facilitating an Academic Upgrading class with Alexandra Park Neighbourhood Learning Centre in Toronto’s west end. She holds a Master of Arts degree in Canadian Studies and Indigenous Studies from Trent University.

This article appeared in the Spring 2017 issue of Canadian Dimension (Fight for $15).


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