University of Alberta Faculty of Law Blog

IBA 2020 Reflections: A Conversation with Members of Parliament, Jaime Battiste and Jagmeet Singh

Tansi Nîtôtemtik,

 

With today’s post we are wrapping up our reflection posts about the 2020 Indigenous Bar Association conference with the plenary session featuring Jaime Battiste and Jagmeet Singh. 

 

Jaime Battiste is Canada’s first Mi’kmaq Member of Parliament, representing Nova Scotia in the House of Commons. He is also the Indigenous chair for the Liberal caucus. The second speaker, Jagmeet Singh, is the leader of the federal New Democrat Party (NDP), representing Burnaby South in the House of Commons. There was some overlap in the topics addressed in this session and by the Honorable Jody Wison-Raybould in her session on Canada’s failure to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). 

 

The Members of Parliament used their presentation to touch on some of the current events affecting Indigenous people in Canada. Mr. Singh described the failure of the federal government to provide clean drinking water to the Neskantaga First Nation for the past 25 years. Appalling enough as that detail is, the community was in the news again this week because their water was shut off completely after an oily substance was found in the reservoir on October 19.^[1] Almost all of the population of 300 residents evacuated, with only 20 people staying behind to care for pets and keep empty homes heated and safe.^[2] Those residents left behind can only access water by hauling it out in buckets from a local lake.^[3] 

 

We agree with Mr. Singh’s statement about this crisis in Neskantaga, “If this was any other city, any other place, we would not accept 25 years [without clean drinking water]. Imagine in Ottawa and Halifax, in Toronto and Vancouver and Montreal, that there was a week without clean drinking water. That would be solved.” It is horrifying that an Indigenous community is forced to evacuate their homes in the midst of a pandemic and in freezing temperatures. Mr. Singh is right; Canadians would never roll over and accept this outcome for non-Indigenous communities. Canada has failed the Neskantaga First Nation. And this isn’t the only area where the federal government has failed recently.

 

The speakers also touched on the hostilities in Nova Scotia. As we discussed in our Wednesday post, there is a direct  correlation between this crisis and Canada’s failure to adequately implement Indigenous rights. On the same day as the IBA conference, the Government of Canada appointed Allister Surette as a “Federal Special Representative” to “rebuild trust between commercial and Indigenous fishers.” He will also make recommendations “with the objective of decreasing tensions and preventing further escalation of [the] conflict” between the Nova Scotia Mi’kmaq and commercial sector leaders and harvesters.^[4] Let’s hope that Mr. Surette moves quickly. Chief Mike Sack told reporters that the fishers can not find buyers for the lobster they have pulled from the water, and cannot even purchase supplies from local suppliers.^[5] “There's pressure that the [lobster] industry is putting on anyone who will do business with us... They've been told they will be blacklisted and boycotted. We're really handcuffed down there."^[6] 

 To paraphrase Mr. Singh, in the case of the Mi’kmaq, it is not sufficient to take an incremental approach to resolve this conflict. Mr. Battiste said he is calling for an approach that results in nationhood and partnership, not paternalism. Canada has a history of failing Indigenous people, let this not be included in the long list of deficiencies.

 

Mr. Battiste also touched on the work of his father, James Youngblood Henderson, as one of the original drafters of UNDRIP. UNDRIP was adopted by the United Nations in 2007 to preserve the rights that “constitute the minimum standards for the survival, dignity and well-being of the Indigenous peoples of the world.^[7]” This declaration caused a shift in the international human rights consensus and placed political and moral demands on states to protect Indigenous collective land rights and the right to self-determination.^[8] Canada officially adopted UNDRIP without qualification in 2016. However, UNDRIP is not a binding treaty or convention, and there are no consequences for nations that do not follow its provisions.^[9] 

 

Mr. Battiste said that he knows “[he represents] a country that has failed indigenous people... [he represents] a country that it did its best to deport his father while he was representing the Mi’kmaq at the United Nations in the 80s.” He also said that “[he] really had a hard time when [he] swore an oath to faithfully represent the Crown and the Queen.” But at his swearing in ceremony, one of the Mi’kmaq community members who were there to support him reminded him to never forget that the treaties say that the Crown is a Mi’kmaq ally. Mr. Battiste could be someone who changes things for the betterment of the Mi’kmaq in Nova Scotia, and all Indigenous people in Canada.  

 

To this end, Mr. Battiste said he has been putting pressure on Cabinet and Minister Lametti to move forward with UNDRIP legislation since he was appointed as an MP, and the current Liberal government has promised to table UNDRIP legislation by the end of 2020. Mr. Singh countered that if we want to see federal UNDRIP legislation passed, we need to vote out the Liberal party and elect an NDP government. With all due respect to Mr. Singh, we disagree. To redirect Mr. Singh’s own words back at him: “If we right these wrongs it is a victory for all of us.” We are tired of hearing about how this party failed and that party failed, and how we need to elect in someone else to see results—we want to see results now—we want to see results with UNDRIP legislation, clean drinking water in Neskantaga, moderate livelihood fisheries in Nova Scotia, and so much more. If both the minority Liberal government and the NDP agree that a victory for Indigenous people is a victory for all of us, then the mudslinging needs to stop, the partisanship needs to stop, and the two parties need to cooperate to change how Indigenous people are treated in this country during this session. The time for change is now.

Until next time, 

Team ReconciliAction YEG

 

¹Jody Porter, “Few left behind in Neskantaga First Nation prepare for winter without water”, CBC News (26 October 2020), online: https://www.cbc.ca/news/canada/thunder-bay/neskantaga-left-behind-1.5776993.

²Ibid.

³Ibid.

⁴Government of Canada, News Release, “Government of Canada appoints Federal Special Representative to facilitate discussions between commercial lobster industry and First Nations in Atlantic Canada”, (23 October 2020), online: https://www.canada.ca/en/fisheries-oceans/news/2020/10/government-of-canada-appoints-federal-special-representative-to-facilitate-discussions-between-commercial-lobster-industry-and-first-nations-in-atl.html.

⁵Michael MacDonald, “Nova Scotia Mi’kmaq chief casts doubt on Ottawa’s bid to quell violence over lobster”, CTV News (25 October 2020), online: https://www.ctvnews.ca/canada/nova-scotia-mi-kmaq-chief-casts-doubt-on-ottawa-s-bid-to-quell-violence-over-lobster-1.5160313.

⁶Ibid.

⁷United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR, 61st Sess, UN Doc A/61/295 (2007), art 43 [UNDRIP].

⁸Sheryl R Lightfoot “Emerging international indigenous rights norms and ‘over-compliance’ in New Zealand and Canada” (2010) 62:1 Political Science 84 at 87.

⁹Ibid.

IBA Reflections: John Borrows and Darcy Lindberg

Tansi Nîtôtemtik,

 

The Indigenous Bar Association’s second day opened with a plenary session and keynote address from John Borrows^[1]and Darcy Lindberg.^[2] This session was moderated by Alexandria Winterburn.^[3] and Brooks Arcand-Paul. ^[4] The discussion centered on Anishinabeg and Nehiyaw legal principles of love, reciprocity, and allyship; focusing on the importance of responding to and supporting the Black Lives Matter and the anti-racism movement.

 

Image: Brock Roe, Twitter: @brock_lawyer

With some degree of editorialization from the ReconciliAction writing team, John Borrows and Darcy Lindberg are among the strongest academic voices to learn from and the easiest to listen to. In this talk they weaved profound insights on society, relations and legal systems together with reflective personal anecdotes and jokes about turtleneck sweaters. The two both hold a gift of being able to present deeply nuanced topics as comprehensive and functional life lessons. 

 

This talk carefully covered a lot of ground, and we do not wish to change the nature of how this talk was presented by attempting to rewrite it out here as a game of telephone. Instead, we would like to present and focus on a few smaller comments that stood out to our writing team.

 

John Borrow’s work centres around Indigenous law and legal traditions.^[5] For this talk he demonstrated Anishinabeg laws as a lived practice that relates more to a verb than noun: standards, principles, curriculum, traditions, resources, and affairs in our lives provide a functional perspective of what law and constitution can mean. John Borrows demonstrated how laws and legal systems are alive – living, changing and ongoing, even if this is not recognized by what is currently the state of Canada. 

 

On allyship, John Borrows referenced the Treaties of Peace and Friendship and the relevance that they carry in current times. This touched on the Wampum belt as a representation of boundaries on a shared space, and the ongoing requirement and commitment to mutual aid. John Borrows mentioned the need to assist others without standing in their shoes, or being those in which you aid. He cautioned against rushing in blindly, but outlined obligations of responding to invitations for assistance. For those who wish to read more of John Borrow’s work, his most recent book is called Law’s Indigenous Ethics, which came out in 2019.^[6] For a paper, a good starting point that we could suggest is Unextinguished: Rights and the Indian Act.^[7]

 

Darcy Lindberg related the law as action to the practice of visiting kin, a long legal tradition tied together with the concept of love. He presented visiting kin as a Neheyiwk law – an obligation to check in and know what’s going on with loved ones. Visiting kin as legal tradition relates to a call to care for others; to nurture and listen. What stood out with what Darcy Lindberg had to say was how the ongoing pandemic, times of isolation and physical separation, can show gaps in current legal orders and legal systems. As a Professor at the University of Alberta Faculty of Law, the courses that Professor Darcy Lindberg has offered continue to play a pivotal role in teaching and inspiring our writing team and the conversations that we have. 

 

A good talk to wake up to.

 

Until Tomorrow,

 

Team ReconciliAction YEG

 

¹Speaker Biographies from the 32nd Annual Indigenous Bar Association Gathering, Disrupted Systems. John Borrows, B.A., M.A., J.D., LL.M. (Toronto), Ph.D. (Osgoode Hall Law School), LL.D. (Hons., Dalhousie, York & Law Society of Ontario) F.R.S.C., is the Canada Research Chair in Indigenous Law at the University of Victoria Law School in British Columbia. He is the 2017 Killam Prize Winner in Social Sciences and the 2019 Molson Prize Winner. John Borrows is Anishinaabe/Ojibway and a member of the Chippewa of the Nawash First Nation in Ontario, Canada.

² Assistant Professor with the University of Alberta Faculty of Law, where he teaches courses on constitutional law, Indigenous legal orders, treaties, and Indigenous environmental laws. He is mixed-rooted Plains Cree, with his relations coming from Samson Cree Nation in Alberta and the Battleford-area in Saskatchewan. His research focuses on Plains Cree law and constitutionalism in relation to lands, waters, and animals. 

³ Board of Directors, Member at Large of the Indigenous Bar Association. Mohawk and Abenaki from the Turtle clan. Alexandria is an associate with Pape Salter Teillet LLP and specializes in Indigenous rights and Aboriginal law with a focus on issues including the duty to consult, negotiation and implementation of modern treaties and governance agreements, and partnerships between industry and Indigenous peoples. She is called to the bar in Ontario and Manitoba.

⁴ Board of Directors, Vice President. Brooks is a nehiyaw napew (Cree) from kipohtakaw (Alexander First Nation) in Treaty 6 territory, a treaty which was adhered to by kitâniskocâpân catchistahwayskum (his great-great-grandfather) at Fort Edmonton. Brooks has diverse experiences in Treaty 6, 7 and 8 territories within Alberta, and continues to appreciate the magnitude of all the promises laid out within those foundational documents. Brooks is in-house counsel to the Alexander First Nation.

⁵ See Generally: John Borrows, Canada's Indigenous Constitution (Toronto: University of Toronto Press, 2010); Indigenous Legal Traditions in Canada. Washington University Journal of Law & Policy, 19, 167-224.

⁶ John Borrows, Law’s Indigenous Ethics (Toronto: University of Toronto Press, 2019).

⁷ John Borrows, "Unextinguished: Rights and the Indian Act," University of New Brunswick Law Journal 67 (2016): 3-35.

 

Indigenous Bar Conference Day 2/ Indigenous Rights at the forefront of Crisis in Canada - Honorable Jody Wilson-Raybould

Tansi Nîtôtemtik,

Today we continue with our reflection of the Indigenous Bar Conference.

It was our pleasure and honor to attend the Honorable Jody Wison-Raybould’s session on implementing the UN Declaration of Indigenous Peoples (UNDRIP)^[1] and how the current attacks on Mi’kmaq fisheries are a direct consequence of  Canada’s failure to implement UNDRIP. 

Hon. Wilson-Raybould spoke of the extreme disappointment felt by many Indigenous Peoples throughout Canada over how Governments that promised so much keep doing so little to keep their words. It is a tide of disappointment that keeps coming in waves, what was started as good will in the early years has essentially been abandoned. Delaying the implementation of Indigenous rights has resulted in continued injustice, and the ad hoc management of crises like the ongoing attacks on Mi’kmaq fisheries in Nova Scotia ^[2] as they come is not a solution.

During the panel, Hon. Wilson-Raybould spoke to how her pursuit of accelerating the proper rights recognition for Indigenous peoples has been her primary main motivation. She commented on the lack for basic human well being both individually and socially, in all areas that affect  Indigenous peoples. From child welfare to disproportionate violence experienced by indigenous girls and women, the lack of clean drinking water on reserves and more recently the racist incidents involving fishing and Mi’kmaq fisheries, there is a direct  correlation between all these issues and the Government’s failure to adequately implement Indigenous rights. 

On February 14, 2018, Prime Minister Justin Trudeau gave a speech on his Liberal government’s plans for a new legislative framework for relations with Indigenous people. ^[3] However, this speech was another example of high hopes for change being dashed by a lack of substantial action for implementation  other than meeting with Indigenous leaders who were left with empty promises. 

Today, we see the Mi’kmaq fisheries fighting a fight that has already been won in the courts with the Marshall decisions. Yet the Government and law enforcement stood by while the Mi’kmaq were terrorized for exercising their inherent, constitutionally protected right to fish for a moderate livelihood. 

Hon. Wilson-Raybould pointed out that adversarial court processes should not and cannot be the primary focus for reconciliation. Instead, let us imagine what could be with real leadership-- what would it look like if the Canadian Government was actually committed to fully implementing UNDRIP. One of her suggestions included supporting a robust and constitutional rights framework meant to “get the federal house in order” as a starting point. In particular, Hon. Wilson-Raybould noted the 5 main elements of RRF (that are described in greater detail in her book, “From Where I Stand’) ^[4]: 

1. Entrench rights recognition standards, to end the practice of denial; 
2. Legislate the UNDRIP;
3. Establish mechanisms for self governance in moving out under the Indian Act;
4. Establish new and Indigenous institutions and capacity support for nation rebuilding; and
5. Establishing new oversights accountability and dispute at resolution institutions. 

Until these elements are implemented, events like this past weekend's nationwide march in solidarity with the Mi’kmaq will be required  to bring awareness to these important issues. Advocacy from our Indigenous leaders in our communities and supporters will be integral in breaking down barriers and fighting for justice. One of our own here at ReconciliAction YEG, Anita Cardinal-Stewart, who is also the Indigenous Law Students Association President and IBA Student Representative attended and spoke at the march in Edmonton this past Saturday.   We will save a greater reflection of the march for Monday. Please stay tuned. 

Thank you.

Until next time,

ReconciliAction YEG

[1] United Nations Declaration on the Rights of Indigenous Peoples, (September 13, 2007) online: <www.un.org/development/desa/indigenouspeoples/wp content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf>. 

[2] Angel Moore, Trina Roache “Mi’kmaq lobster boats surrounded by Acadian commercial fishing vessels as traps are stolen, cut” (September 21, 2020) online: < www.aptnnews.ca/national-news/mikmaq-lobster-boats-surrounded-by-acadian-commercial-fishing-vessels-as-traps-are-stolen-cut/>. 

[3]  House of Commons Debates,42-1, No. 264 (14 Feb 2018) https://www.ourcommons.ca/DocumentViewer/en/42-1/house/sitting-264/hansard 

[4]  Hon Jody Wilson-Raybould, From Where I Stand (Vancouver: UBC Press, 2019).

Diversity on the Bench

 

A picture of the current Justices of the Supreme Court in Canada. Credit: Supreme Court of Canada Collection

Tansi Nîtôtemtik,

Today we continue our reflections on last week’s Indigenous Bar Association Conference.  

In today’s post, Team ReconciliAction YEG will be discussing the Breakout Session titled: “Indigenous & Black Representation on the Bench, Inclusion and Diversity.” The session was an honest and open discussion about the current representation of Indigenous and Black lawyers in our Canadian judiciary, and suggestions on how to make improvements. The session featured three speakers:

• Justice Harry LaForme, who currently practices law at Olthius Kleer Townshend LLP and previously served as a Justice of the Ontario Court of Appeal and as a Justice on the Ontario Superior Court (ONSC); 
• Justice Nyron Dwyer, a current Justice of the Ontario Court of Justice; and
• Joshua Sealy-Harrington, a current lawyer at Power Law LLP, (now doing doctoral research at Columbia Law School theorizing law, identity, and sexuality) who also completed three clerkships (two at the Supreme Court of Canada (SCC) and one at the Federal Court). 

Photo credit: Joshua Sealy-Harrington, Twitter, October 23, 2020

Each of the three panelists shares a unique perspective on diversity in the judiciary. Justice Laforme was notably the first Indigenous judge on an appellate court when he was appointed in 2004. While at the ONSC, Justice LaForme was one of three Indigenous justices at that time to have been appointed to that level of trial court. Justice LaForme became a lawyer at a time when Indigenous lawyers were few and far between, and has been a champion for Indigenous issues throughout his legal career. 

Justice Dwyer immigrated to Winnipeg from Jamaica when he was seven years old. He pursued a legal career at a time where only two or three Black students had ever graduated from his law school (University of Manitoba). Justice Dwyer built a career in criminal law where he practiced  for over twenty years, and noted the staggering overrepresentation of Indigenous people involved in the criminal justice system. 

Joshua Sealy-Harrington is Trinadadian-Canadian. Joshua shared that during his Juris Doctor degree, he had no Black teachers, was the only Black lawyer at the firm he worked at, and was the only Black law clerk during his three clerkship terms. Joshua shared how these experiences made him feel alone, and noted that in his experience, feeling unique in an institution as powerful as the Supreme Court of Canada was deeply unsettling. 

Barriers in the judicial appointment process

One of the questions posed to the speakers was about barriers in the judicial appointment process for Indigeneous and Black lawyers. The barriers associated with the French language requirement was discussed, which we wrote about in this post.

Some other barriers included:

• Undervaluing the need for diverse perspectives and Indigenous/Black representation on the bench at all levels, especially in the apex court (SCC). 
• Outdated ideas about representation of minorities rooted in colonial values, such as citing a lack of applications for judicial appointments as the reason for underrepresentation rather than looking at the reasons behind the low number of applications. 
• A lack of confidence amongst Indigenous and Black lawyers to apply for judicial appointments, related to a feeling that one has to “do more” or “be perfect” to be worthy of an appointment. 
• A lack of transparency about the application and selection process itself through unequal access to knowledge both implicitly (e.g. specialized tips for interviewing, compiling applications) and explicitly (e.g. a lack of resources to compile applications); and
• Systemic discrimination through the selection process and criteria for application themselves, as they indirectly select for certain schools or backgrounds.

With respect to these last two barriers, Sealy-Harrington pointed to similarities with the clerkship application/recruitment process, and noted that these flaws likely applied to judicial appointments as well. 

Recommendations for change

Sealy-Harrington made a striking comparison between government funding for social programs and representative judicial appointments. He commented that the question is more one of priority, not scarcity. The speakers shared their passion for improving diversity in the judiciary, and made some of the following suggestions:

• Members of the judiciary should encourage strong lawyers with diverse backgrounds to apply for judicial appointments. Justice Dwyer shared that as a young lawyer, Justice LaForme encouraged him to apply to the bench, which was instrumental in his decision to apply. 
• The legal community should lobby the Government to prioritize the appointment of underrepresented Black and Indigenous lawyers.
• Diversity of experience should not be overshadowed by technical specifications like the French language requirement. 

Overall, this Breakout Session really drove home the importance of representation of all backgrounds on the Bench at all levels of court, but especially the SCC. Team ReconciliAction YEG is hopeful Canada’s judiciary will soon start to resemble the people coming before them in our courts. 

We would like to leave you with a powerful quote shared by one of the moderators, Ajay Winterburn during the panel:

"The function, the very serious function of racism is distraction. It keeps you from doing your work. It keeps you explaining, over and over again, your reason for being. Somebody says you have no language and you spend twenty years proving that you do. Somebody says your head isn’t shaped properly so you have scientists working on the fact that it is. Somebody says you have no art, so you dredge that up. Somebody says you have no kingdoms, so you dredge that up. None of this is necessary. There will always be one more thing." -Toni Morrison 

Until next time,

ReconciliAction YEG

IBA Reflections: BC First Nations Justice Strategy

Tansi Nîtôtemtik, 

 

The Indigenous Bar Association conference, themed “Disrupted Systems”, wrapped up its second day on Friday with a stacked set of speakers, performers, and panels. This year’s conference featured important discussions about the state of the Canadian legal system and profession; systemic racism and inequity; practicing law and ceremony during a pandemic; new child welfare laws; incredible drum, flute and song performances; and more turtlenecks than we have ever seen at a single event.  This week, we will share some highlights of the conference before we jump back into evaluating the TRC Calls to Action in healthcare. 

(Illustration: “Meta” by Jason Sweeney)

 

Today, we will discuss the BC First Nations Justice Strategy as presented by Chief Doug White, Chair of the BC First Nations Justice Council.^[1] Signed in March of 2020, the Strategy was jointly developed with the BC government to reform the current legal system, address its harms against Indigenous people, and restore Indigenous legal structures.^[2]  

 

The numbers presented by Chief White were staggering, but not surprising for anyone who has been paying attention. Across Canada, First Nations, Metis and Inuk people make up around 5% of the total population, but a disproportionate 30% of Canada’s incarcerated population.^[3]   For women and girls, the figures are even more alarming. Forty-two percent of all incarcerated women are Indigenous, and 60% of all girls in custody are Indigenous.^[4] Indigenous people are also overrepresented as victims of crime, and underrepresented in roles of authority and responsibility.^[5]  

(Image: Office of the Correctional Investigator. (2020, January 21). Indigenous People in Federal Custody Surpasses 30%. Correctional Investigator Issues Statement and Challenge. https://www.oci-bec.gc.ca/cnt/comm/press/press20200121-eng.aspx)

 

Chief White attributes the worsening impact of the legal system on Indigenous people in BC to a variety of factors, including: 

• improper implementation of the Gladue principles in sentencing, 
• poor access to legal representation, 
• defunding of Legal Aid and Native Community Law Offices,

 as well as over-policing and under protection by police, as has been shown in reports like the AJI, RCAP, TRC and MMWIG.^[6]  

 

After the agreement to develop the Joint Strategy in 2017, a two year consultation and engagement process followed.^[7] During that time, BC did not wait to begin making changes. Funding was immediately increased to improve access to Gladue reports at sentencing and bail hearings, and to begin establishing a network of 15 Indigenous justice centers to provide legal services for criminal, family and child protection matters.^[8]  

 

The 25 strategies outlined in the Joint Strategy are based on 4 pillars: Core Values; Structures and Processes;  Roles, Responsibilities and Capacities; and Laws and Policies ^[9]  Within each of the strategies are clear lines of action for implementation. However, many of those lines of action simply state that an action plan must be developed.^[10]  

 

The emphasis that the BC strategy places on Indigenous-led justice and community-based programming is promising, as is the focus on reforming the current justice model to incorporate more Indigenous perspectives. Team ReconciliAction will be watching the progress in BC as the province embarks on this joint process led by the BC First Nations Justice Council, and is looking forward to the impact of the new strategies on the Indigenous people who shared those lands with settlers. If the BC strategy is successful, we hope to see the other provinces in Canada adopting principles that restore First Nations legal orders and structures within their borders.

Until Next Time,

Team ReconciliAction YEG

 

¹ Chief Doug White, BC First Nations Justice Strategy (Indigenous Bar Association Conference: Disrupted Systems, 2020).

² BC First Nations Justice Council, BC First Nations Justice Strategy (British Columbia, 2020) online: https://www.bcafn.ca/sites/default/files/docs/news/First_Nations_Justice_Strategy_Feb_2020.pdf at 3.

³ Chief Doug White, supra note 1; See also Office of the Correctional Investigator Government of Canada, “Indigenous People in Federal Custody Surpasses 30% - Correctional Investigator Issues Statement and Challenge - Office of the Correctional Investigator”, (16 April 2020), online: <https://www.oci-bec.gc.ca/cnt/comm/press/press20200121-eng.aspx>.

⁴ Chief Doug White, supra note 1; See also The Native Women’s Association of Canada (NAWC), “Number of Incarcerated Indigenous Women at New High”, First Nations Drum Newspaper (22 January 2020), online: <http://www.firstnationsdrum.com/2020/01/number-of-incarcerated-indigenous-women-at-new-high/>.

⁵ BC First Nations Justice Council, supra note 2 at 20–22.

⁶ Chief Doug White, supra note 1.

⁷ BC First Nations Justice Council, supra note 2 at 8.

⁸ Chief Doug White, supra note 1.

⁹ BC First Nations Justice Council, supra note 2 at 5.

¹⁰ BC First Nations Justice Council, supra note 2 at 27, 28, 29, 31, 32, 38, 40, 48, 49, 51.

Section 25 of the Charter: Indigenous Laws in Canadian Courts

Correction notice: ReconciliAction YEG would like to clarify that s.35 of the Charter recognizes and affirms existing treaty rights. Also, the second takeaway should be clarified to say that Ryan suggested the Vuntut Gwitchin case shows that the s.25 analysis itself (rather than the need for the analysis itself) is very contextual. Please visit the Center for Constitutional Studies website to watch this great webinar at: https://ualawccsprod.srv.ualberta.ca/past-events/speakers-and-panels/. 

Tansi Nîtôtemtik,

Yesterday, Team ReconciliAction YEG attended the Center for Constitutional Studies’ (CCS) Online Charter Series webinar titled “Section 25 of the Charter: Indigenous Laws in Canadian Courts”, hosted by Ryan Beaton from the University of Victoria. Ryan Beaton is a PhD candidate in the Faculty of Law at the University of Victoria and a 2017 scholar of the Pierre Elliott Trudeau Foundation. In the webinar, Ryan reviewed the recent Vuntut Gwitchin decision from the Yukon Supreme Court,^[1] specifically regarding the unique challenges of considering Indigenous law in Canadian courts. 

The Decision

Ms. Cindy Dickson, a member of the Vuntut Gwitchin First Nation (VGFN), wanted to run as a candidate for VGFN Councillor. However, under the VGFN Constitution, an elected Councillor or Chief is required to relocate to the VGFN seat of government in Old Crow, approximately 800 km north from Whitehorse, where Ms. Dickson lived. Ms. Dickson was unable to relocate to Old Crow for many reasons, including her need to be close to medical care for her teenage son. As a result, Ms. Dickson challenged the residency requirement for election under s. 15(1) of the Charter of Rights and Freedoms.^[2]

Old Crow is the most northerly community in the Yukon Territory. (Photo credit: Yukon News, July 3rd 2020, https://www.yukon-news.com/news/vuntut-gwitchin-councillor-submits-resignation/)

The Court first determined that Ms. Dickson’s application was not a fundamentally political question, and thus could be heard by the Court, rather than being negotiated between the VGFN, Yukon and Canada. Secondly, the Court found that the Charter applied to the VGFN government and its residency requirement for election. Thirdly, the Court found that the residency requirement did not infringe Ms. Dickson’s equality rights. Finally, the Court found that even if Ms. Dickson’s s. 15(1) rights were breached by the residency requirement, s.25 of the Charter would shield the residency requirement provision from constitutional scrutiny. 

Section 25 of the Charter

Although the Charter was enacted 38 years ago, s.25 has had very limited interpretation by Canadian courts. Some might say that it has been overshadowed by s.35, which recognizes and affirms existing Aboriginal and treaty rights.

S.25 provides that:

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

        (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

        (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired. (94)^[3]

Only one case at the Supreme Court of Canada, R v Kapp, has spoken to what s.25 entails.^[4] Even then, the discussion was in Justice Bastarche’s dissenting opinion, where he suggested a potential framework for its application. The lack of case law dealing with s.25 has been recognized as problematic because it is a Charter provision that could serve a valuable function in protecting a broader range of Indigenous rights.^[5]  

Takeaways 

Ryan Beaton noted that at the heart of this decision is the question of how Indigenous sovereignty will take shape in the Canadian constitutional landscape. Ryan did an excellent job of explaining this decision. We have briefly summarized some of the implications Ryan noted below:

• This decision suggests that a Charter analysis should take place before deciding whether the provision in issue is shielded by s.25, contrary to Justice Bastarche’s approach in Kapp.
• The s.25 analysis is very contextual.
• This decision shows a shift in the attitude towards Indigenous sovereignty. There is no argument of whether VGFN has sovereignty, instead the question is the relationship between Indigenous and Canadian sovereignty.

Stay tuned, because the decision has been appealed by both Ms. Dickson and the VGFN.^[6] We certainly look forward to seeing how the Court of Appeal of Yukon deals with this interesting and important case! 

Until next time,

Team ReconciliAction YEG

¹Dickson v Vuntut Gwitchin First Nation, 2020 YKSC 22. [Vuntut Gwitchin]

²Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [Charter]

^{3Charter, supra note 2, s.35.}

⁴R v Kapp, 2008 SCC 41. [Kapp]

⁵Jennifer Koshan & Jonnette Watson Hamilton, “Kahkewistahaw First Nation v Taypotat – Whither Section 25 of the Charter?” (2016) 52:2 Constitutional Forum 39. 

⁶Jackie Hong, “ Vuntut Gwitchin formally appeals decision in residency requirement case” Yukon News, (August 15, 2020) online: <www.yukon-news.com/news/vuntut-gwitchin-formally-appeals-decision-in-residency-requirement-case>. 

5 Years After TRC: Indigenous Languages Act

 

(Artwork by Monique Aura Bedard)

Tansi Nîtôtemtik,

 

Today we continue our evaluation of reconciliation in language and culture with Calls to Action #13, #14 & #15.  Call #13 demands that the government explicitly acknowledge language rights as Aboriginal rights, while Call #14 & #15 calls for federal language legislation and a Commissioner’s office dedicated to Indigenous language revitalization and preservation.^[1] 

 

In the late 1800s, Indian Commissioner Hayter Reed suggested that the “native language is only to be used as a vehicle of teaching and should be discontinued as such as soon as practicable”.^[2] This rhetoric meant that children in residential schools would be prohibited from speaking their language both in and out of school. In 1903, the principal of the residential school in Red Deer, Alberta was reprimanded for the prevalence of the Cree language in the school.^[3] The inspector called it a “serious drawback”, and “an evidence of bad discipline”.^[4] Punishments for children speaking in their own tongue included closely cropped haircuts, hitting, strapping, or being forced to eat soap.^[5] This had long-lasting impacts on language use even after attitudes about Indigenous languages in the schools began to change in the 1960s. Parents decided not to teach their children to speak their own language, or warned them against speaking it at school.^[6]  As stated by Toronto linguistic rights lawyer David Leitch, no “other cultural group in Canada has been subject to a state-sponsored attempt to eradicate its language.”^[7]

 

(Artwork by Avis Charley)

 

Indigenous language is protected under the broad language of section 35 of the Constitution, but this protection has been a negative right - as in the government may not interfere with Indigenous language revitalization or preservation.^[8]  This is nice, but given that the purpose of the residential school system was assimilation through the destruction of Indigenous culture and language perhaps this right should be a positive one - as in the government is responsible for funding and supporting initiatives that revitalize and preserve Indigenous languages.  This was the position of Lorena Fontaine, an assistant professor at the University of Winnipeg, and David Leitch, who were in the midst of preparing a constitutional challenge on Indigenous language rights in education when Prime Minister Trudeau announced that Canada would co-develop Indigenous language legislation with Indigenous groups.^[9] 

 

The Indigenous Languages Act came into force on June 21, 2019, and formally recognizes Indigenous languages as rights under section 35 of the Constitution.^[10]  It also directly responds to Article 13 of the United Nations Declaration on the Rights of Indigenous Peoples, which states that “Indigenous peoples have the right to revitalize…and transmit to future generations their…languages” and that “[s]tates shall take effective measures to ensure this right is protected”.^[11]

 

Indigenous languages are currently endangered, some languages more critically than others. At the recent Métis Nation Engagement Session for the implementation of the Indigenous Languages Act, it was noted that there are very few Michif speakers under the age of 65.^[12]  In addition, these speakers are becoming more isolated from other Michif speakers and losing the ability to practice their language.^[13] The need for investment into reviving the Michif language is urgent. 

 

While Michif is one of the more critically endangered of Indigenous languages spoken in Canada, each language will require a distinct approach to revitalization and preservation. This means that language revitalization is best managed by the communities who speak those languages, and that funding models must take into account the diversity of these languages and distinctive needs of language keepers.^[14]  The Act acknowledges the need for Indigenous-led language management and the need for a distinctions based approach.^[15]

 

To go along with the new legislation, the federal government has allocated additional funding in the amount of $333.7 million over five years, beginning in 2019, and $115.7 million per year on an ongoing basis beginning in the fiscal year of 2023-2024 to support Indigenous languages and implementation of the Act.^[16] Canada has also committed to creating a Commissioner’s Office of Indigenous Languages to help facilitate the effective implementation of the Act, promote and support Indigenous language programming and initiatives, as well as carry out research and evaluation on Indigenous languages.

 

At a surface level Canada has met Calls # 13, #14 & #15, however, there is no breakdown on how funds will be allocated and little commitment to any positive duty other than long-term sustainable funding. This forces communities to compete for funding and maintains too much colonial control over the allocation of a set block of funds. Team ReconciliAction gives Canada a passing- but not perfect- grade on these Calls to Action.

That concludes our review of the Calls to Action relating to Language and Culture, stay tuned tomorrow for a discussion on the Center for Constitutional Studies Charter Series discussion on prevailing law between the Charter and the Vuntut Gwitchin Constitution!

Until next time, 

Team ReconciliAction

 

¹ Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 321.

² Ibid at 80.

³ Ibid at 81.

⁴ Ibid.

⁵ Ibid at 81–83.

⁶ Ibid at 84.

⁷ David Leitch, “Canada’s Native Languages: The Right of First Nations to Educate Their Children in Their Own Languages” (2006) 15:3 Const Forum Const 107 at 111.

⁸ Karen Drake, “Language Rights as Aboriginal Rights: From Words to Action” in Kiera L Ladner & Myra J Tait, Surviving Canada: Indigenous Peoples Celebrate 150 Years of Betrayal (Winnipeg: ARP Books, 2017).

⁹ Nicola Luksic, “Constitutional challenge looks to revive aboriginal languages”, CBC News (10 April 2016), online: <https://www.cbc.ca/news/indigenous/aboriginal-language-constitution-1.3525982>; Justin Trudeau, Prime Minister of Canada, “Prime Minister Justin Trudeau’s Speech to the Assembly of First Nations Special Chiefs Assembly”, (6 December 2016), online: Prime Minister of Canada <https://pm.gc.ca/en/news/speeches/2016/12/06/prime-minister-justin-trudeaus-speech-assembly-first-nations-special>.

¹⁰ Indigenous Languages Act, 21 June 2019, SC 2019, c 23 [Indigenous Languages Act], s 6.

¹¹ Ibid, Preamble, s 5(g); United Nations Declaration on the Rights of Indigenous Peoples, GA Res 295, UNGAOR, 61st Sess, Supp No 49, UN Doc A/ RES/61/295, 46 ILM 1013 (2007), Article 13 [UNDRIP].

¹² Sharon Parenteau, Louis Riel Institute & David Morin, Gabriel Dumont Institute, Métis Nation Engagement on the Implementation of the Indigenous Languages Act: Summary of the 2017-18 Engagement (Canada, 2020).

¹³ Ibid.

¹⁴ Truth and Reconciliation Commission of Canada, supra note 1 at 321.

¹⁵ Indigenous Languages Act, 21 June 2019, SC 2019, c 23 [Indigenous Languages Act], s 45(2).

¹⁶ MNC, Métis Nation Engagement on the Implementation of the Indigenous Languages Act: Participant Guide (Canada, 2020) at 10.

Reclaiming Our Names: TRC Call to Action #17

“17. We call upon all levels of government to enable residential school Survivors and their families to reclaim names changed by the residential school system by waiving administrative costs for a period of five years for the name-change process and the revision of official identity documents, such as birth certificates, passports, driver’s licenses, health cards, status cards, and social insurance numbers.” ^[1]

Tansi Nîtôtemtik,

Our names are linked intrinsically with our identity. They are carefully chosen by someone who loved and cared for you, and are one  of the first things people learn about you. Your name is yours and yours alone.  No one can come and just take it from you, or decide to call you something different. When you hear someone speak it or write it wrong perhaps you are annoyed but you correct them and move on. How would you then feel, if one day you could no longer use your name anymore and a new, very foreign one is assigned to you? Or in the case of the Inuit, identification tags (discs) as a replacement for names, horrific practice. There is punishment if you try to revert back to it and a piece of your identity is essentially torn away, what would you do to get it back? Would you want it back?  

For most First Nations and Inuit people the erasure of their names and  languages began in the 1870’s. Recordings of names were misspelled, biblical names were substituted, or even the names of the “Indian agents” were written down instead of real names. The actions were a deliberate attempt to systematically erase culture and identity. Assimilation was the mandate of the government and stripping the names of Indigenous and Inuit people while forbidding them the use of their “old” names was a perfect opportunity to further this goal. ^[2]

Returning to lost traditions and ceremonies can be an important act of reclamation for Indigenous peoples. Spiritual naming ceremonies, kinship practices or changing names are often powerful first steps in personal reclamation of culture, tradition, connection to ancestors and an important growth into an identity that is devoid of a shame that people might have once felt for being Indigenous. There is pride in a name, there is ceremony in giving and receiving of a name which establishes kinship within community, the land and familial bond. Reclamation of traditional names is a significant empowerment of this movement for present and future generations and that is the mandate that needs to be endorsed. 

In 2016, five Calls were completed; in 2017 there were seven; 2018 saw the completion of 8; and in 2019, we are at a total of nine complete Calls to Action out of 94. As of present, only one Call to Action regarding Language and Culture has been completed. Clearly Canada still has a very long way to go. ^[3] While researching Call to Action #17, ReconciliAction was surprised to find that the Alberta government has implemented free name changes for those who attended Residential Schools, victims of the Sixties Scoop, and their descendants. The program also includes spouses and partners. However, these services could be more widely shared to encourage their use. ^[4] Further, the Northwest Territories have been waiving fees for those who want to reclaim their names since October 2018. ^[5] These programs take a wonderful step in the right direction in helping to dismantle colonialism and further reconciliation. However,  reclaiming Indigenous names is a Canadian issue and although these provinces are leading the charge, Canada needs to make more of a conscious effort to do so as well.

Until next time,  

Team ReconciliAction YEG

 

[1] Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa, Truth and Reconciliation Commission of Canada, 2015). 

[2] Ryerson School of Journalism, “Claiming A Name” (2016) online: <trc.journalism.ryerson.ca/claiming-a-name/call-to-action-17/>.

[3] Eva Jewell & Ian Mosby, “Calls To Action Accountability: A Status Update On Reconciliation”, (Dec 17, 2019), online: Yellowhead Institute <yellowheadinstitute.org/2019/12/17/calls-to-action-accountability-a-status-update-on-reconciliation/>.

[4] Government of Alberta, “Apply for a legal change of name”, online:  <alberta.ca/legal-name-change.aspx>. 

[5] Avery Zingel, “N.W.T. sees 29 name changes after waiving fees to reclaim Indigenous names” (Jan 13, 2020), online: CBC News,   <cbc.ca/news/canada/north/reclaiming-indigenous-names-1.5423476>. 

Reflections from LEAF Edmonton's Persons Day Breakfast

Tansi Nîtôtemtik,

We had the pleasure of attending the LEAF^[1] Edmonton’s Persons Day Breakfast on October 19, 2020 to watch Dr. Val Napoleon’s keynote presentation entitled “Contested Legal Personalities: Indigenous Women”. Thank you to Dean Billingsley for sponsoring a virtual table so that ten University of Alberta law students could attend the Persons Day Breakfast.

Dr. Napoleon is the Law Foundation Chair of Indigenous Justice and Governance at the University of Victoria. She is from Treaty 8 territory in northeast British Columbia, and a member of Salteau First Nation.^[2] She is also an adopted member of the Gitanyow (Gitxsan) House of Luuxhon, Ganada (Frog) Clan.^[3]

With the "trickster" Kokum Raven peering at us over her left shoulder, Dr. Napoleon took the breakfast attendees on a journey to understand how the law constructs Indigenous women at different moments in time, and in different spaces. Using an analysis of past and present Gitxsan law, a description of how colonialism reconstructed the legal agency of Gitxsan women, and current Canadian law’s construction of the legal identity of Gitxsan women, Dr. Napoleon explained how your respective legal orders create your legal personalities, and she asked, “what are the consequences of these constructions for the Gitxsan?”

According to the presentation, the Gitxsan society is non-state, with decentralized structuring of its economic, political, social, and legal ordering. Political and legal institutions operate in matrilineal kinship units called Houses. There is “no big boss”; all the house members are part of the collective ownership of the same territories. All members of a House are all entitled to the same privileges and prerogatives, and subject to the House obligations and liabilities. Historically, women maintained their own economic lives because their husbands would be in a different House with different territories. Marriages were arranged with other clans to form alliances for trade and conflict management. 

Dr. Napoleon explained that the Gitxsan dealt with violence, including sexual violence, through legal action and compensation. If a Gitxsan woman was seriously harmed, her rights would be taken up by her mother’s House and sometimes her father’s House. Women had a right to equal negotiation and were not sidelined as victims. They had a high amount of authority and autonomy within Gitxsan society.

Fast forwarding to current day, Dr. Napoleon recounted the findings of the National Inquiry into the Missing and Murdered Indigenous Women and Girls. While recognizing the value in the Inquiry’s report, Dr. Napoleon nonetheless points out that unfortunately, the calls to justice are framed within the Canadian legal framework instead of recognizing the human rights and self-determination that Indigenous women have within their Indigenous legal framework. Colonialism, the basis for our Canadian legal framework, has undermined Indigenous law and legal traditions. A consequence of Canadian law is that Indigenous women are robbed of their humanity and treated as less than equal within society. To emphasize the indignity with which Indigenous women are often treated, Dr. Napoleon referred to the dehumanizing treatment of Cindy Gladue during the trial against her accused murderer. She also honoured Joyce Echaquan and the indignity she faced during her final moments.

Dr. Napoleon explained that Indigenous lawlessness is created in two ways. Through “the undermining of Indigenous law and the creation of gaps and distortions in Indigenous lawlessness”, and “the failure of Canadian law to protect Indigenous women and girls.” Colonialism has fractured the ability of Indigenous communities to maintain their economies, legal orders and responsibilities. She emphasized that those who navigate more than one legal order in the same geographic space will often experience conflicts between the Canadian and Indigenous legal orders. This conflict has consequences for the legal agency and dignity of Indigenous women and children.

Our biggest takeaway from Dr. Napoleon’s presentation is how calls for reconciliation with Indigenous people are typically centered within the Canadian framework- a framework that is molded and disfigured by our colonial history. As part of our evaluations moving forward, we will cast a critical eye on whether Canada is focusing its reconciliation efforts on the institutions outside Indigenous communities or if they are recognizing internal Indigenous perspectives and rights, such as those of the Gitxsan society.

 

Until next time, 

Team ReconciliAction YEG

¹Women’s Legal Education and Action Fund, “LEAF Edmonton”, online: https://www.leaf.ca/branches/leaf-edmonton/.

²University of Victoria, “Val Napoleon” (2020), online: https://www.uvic.ca/law/facultystaff/facultydirectory/napoleon.php.

³Ibid.

Call to Action #16: Degree and Diploma Programs in Indigenous Languages

 

Tansi Nîtôtemtik,

 

This week we will be reviewing the Calls to Action on Language and Culture. Today we begin with Call #16 which states:

 

We call upon post-secondary institutions to create university and college degree and diploma programs in Aboriginal languages.

 

The intent of Call #16 is informed by the United Nations Declaration of the Rights of Indigenous Peoples.^[1] UNDRIP recognizes that “Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.”^[2] Language is more than a mode of conversation, it shapes worldview and defines culture, providing “the individual a sense of security and continuity with the past ... maintenance of the language and group identity has both a social-emotional and a spiritual purpose.”^[3]

 

From the executive summary of the Truth and Reconciliation Commission, the language and intent of Call to Action #16 could be read as being focused on the work being done by larger public-institutions:

 

Education institutions must be flexible and responsive in their attempts to encourage the teaching of Aboriginal languages. They should be prepared to draw on the available resources within Aboriginal communities to facilitate the teaching and transmission of Aboriginal languages. More formal training opportunities are also required.^[4]

 

We will be outlining the work of larger public institutions like the University of Alberta in a subsequent post, however we wish to focus today on the work being done by First-Nation run institutions across Alberta. While there are public universities which have long implemented Indigenous language courses and language programs, we would like to highlight the First Nations Colleges that have led initiatives to create and implement diploma and degree granting programs in Indigenous languages.

 

There are several First Nations operated colleges in Alberta that offer Indigenous Language courses.^[5] One of these colleges, University nuhelot’įne thaiyots’į nistameyimâkanak Blue Quills, offers full Bachelor programs in both Cree (nêhiyawêwin) and Dene.^[6] The work done by Blue Quills presents a case study in how ‘reconciliation’ can be conceptualized - as the college is an Indigenous run non-profit educational institution which operates out of a former residential school building.^[7] Their governance board consists of members appointed from seven local First Nations on Treaty 8 territory, representing over 18,000 people.

 

The educational philosophy of Blue Quills is grounded in nehiyawak (Cree) tradition with a value system that stands for a nation-to-nation framework, stating that ‘nehiyawak are a sovereign people accepting the responsibilities to this land as given by the Creator. From this our people and ancestors derive the authority to enter into and maintain nation to nation treaties with the Crown of Great Britain, and to continue to live by the laws and ethics that guide us that are not made by us, but by the Creator. ^[8]

 

The role of the Government of Alberta and funding is complicated as it pertains to Call #16. While they have decimated funding provided to larger public institutions, they have maintained funding commitments to First Nations colleges like Blue Quills, even through the COVID-19 pandemic.^[9] While this earns the provincial government a passing grade at this point, true reconciliatory action would contemplate funding to make diploma and degree programs in all Indigenous languages accessible on the traditional territory upon which Alberta operates. 

 

You can further support the work done by University nuhelot’įne thaiyots’į nistameyimâkanak Blue Quills here: https://www.bluequills.ca/fundraising-to-enhance-lives/.

 

Until Tomorrow,

Team ReconciliAction YEG 

 

¹ United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR, 61st Sess, Supp No 53, UN Doc A/61/53 (2007) [UNDRIP].

² Ibid, arts 8, 13, 14, 16.

³ Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 152.

⁵ Among others: Maskwacis Cultural College, Old Sun Community College, Red Crow Community College, Yellowhead Tribal College.

⁶ University nuhelot’įne thaiyots’į nistameyimâkanak Blue Quills, "About Us" online: <https://www.bluequills.ca/welcome/about-us/>

⁷ How Stanley RedCrow and First Nations Activists Reclaimed the Blue Quills Residential School, CBC (10 May 2017) online: < https://www.cbc.ca/2017/canadathestoryofus/how-stanley-redcrow-and-first-nations-activists-reclaimed-the-blue-quills-residential-school-1.4108629 >

⁸University nuhelot’įne thaiyots’į nistameyimâkanak Blue Quills, "Educational Philosophy" online: <https://www.bluequills.ca/educational-philosophy/>.

⁹ Jake Cardinal, "Alberta Announces COVID Support Funding For Five First Nations Colleges" (13 August 2020), online: <https://www.albertanativenews.com/alberta-announces-covid-support-funding-for-five-first-nations-colleges/>.

 

IBA 2020 Reflections: Advocacy in a Pandemic

Tansi Nîtôtemtik, 

We had the pleasure of attending the Indigenous Bar Association (IBA) conference last Friday, so we have paused our analysis of the TRC Calls to Action this week in order to share what we learned from the conference. 

 

Today we will discuss the presentation, “Advocacy in a Pandemic”. At the IBA conference, Emily Snyder and Christy Anderson of the University of Saskatchewan, alongside Brock Roe of JFK Law, presented their initial research findings on the legal issues and challenges faced in Indigenous legal advocacy during the COVID-19 pandemic. Phase one of the project was an online survey. The presenters indicated that the results presented at the conference were not intended to be a strong quantitative analysis, but to give a sense of the depth and breadth of the issues faced. 

 

The online survey was sent to 510 potential respondents. One hundred and twenty-two respondents completed the surveys between June and July 2020. Out of the completed surveys:

 

• 40 of the respondents identified as either Indigenous or as having both Indigenous and non-Indigenous kinship;

 

• 56% of the respondents identified as women and 3% of the respondents identified their gender through non-binary expressions of sex, gender, and sexuality, and;

 

• The respondents’ Aboriginal law practices mostly encompass the jurisdictions of B.C., Ontario, and Alberta.

 

We would like to share some of the researchers’ key findings that were presented at the conference that demonstrate that Indigenous communities are facing multiple and complex legal barriers and challenges during the COVID-19 pandemic. 

 

According to the survey, 85% of the respondents strongly agreed or agreed that the Indigenous clients they work with have encountered additional legal challenges because of the COVID-19 pandemic. Many of the respondents indicated that the challenges are not new, but underlying systemic issues that have worsened during the pandemic.

 

The researchers found that 59% of respondents indicated that they were experiencing challenges in serving Indigenous clients during the COVID-19 pandemic. One respondent wrote that the Crown has repeatedly indicated that they cannot make commitments on litigation timelines due to all the resources being diverted to the COVID-19 response. This means further delays for Indigenous clients. 

 

The findings from the survey may indicate that pandemic-related issues are worsening along gender lines. The researchers found that 36% of respondents had concerns that Indigenous clients are being impacted unevenly by the pandemic in relation to gender and law. Of that 36%,  respondents indicated concerns about increased instances of family violence and family care responsibilities. Other issues that were mentioned were housing issues, economic inequality, gendered violence, and remote geography. Some wrote that women’s roles in negotiating agreements for their communities are compromised because of extra family responsibilities as a result of the pandemic.

 

More than half (54%) of the respondents were concerned that Indigenous clients are experiencing additional challenges in drawing on their legal traditions during the pandemic. Many respondents indicated that the pandemic is exacerbating already existing systemic inequality and the pandemic is being used to undermine Indigenous governance jurisdiction and sovereignty. There have been jurisdictional issues including who has the authority to regulate who enters and leaves communities. An Indigenous man noted that the government continues to support and encourage the resource extraction industry during the pandemic. While provincial governments have closed provincial parks and prohibited overnight camping to discourage people from traveling to remote locations and potentially spreading the virus, resource extraction workers continue to move in and out of camps in Indigenous communities.

 

The majority of respondents (60%) indicated they were experiencing personal challenges during the pandemic that were making it difficult to do their work. Indigenous respondents were more likely to indicate that they were experiencing personal challenges than non-Indigenous respondents. Of those who responded, women and men experienced similar personal barriers, however, there were gendered aspects to the challenges. Female respondents spoke more often about childcare responsibilities and mental health concerns than male respondents. Male respondents indicated they were facing challenges with technology and with feeling disconnected from their clients.

 

The presentation highlighted how the pandemic has worsened existing challenges in Indigenous advocacy. The researchers closed by sharing that phase two of the project will expand to include interviews and will also focus on gaps from the surveys, including regional gaps, and increasing the diversity of representation from Indigenous and LGBTQ2S+ lawyers. The research team said they will be working on publishing the findings of the project, and we will be keeping a keen eye out for their future work!

 

The above research from the IBA presentation indicates that the COVID-19 pandemic is worsening existing systemic barriers to Indigenous legal advocacy. This means it is even more important for Canada to respond to and implement the TRC’s Calls to Action. When our social system marginalizes certain groups during the ‘good times’, we cannot expect it to support them in the ‘bad times’.

 

We would like to thank the Faculty for sponsoring our attendance at the IBA conference last week so that we could share our reflections with our readers.

 

We wish you a safe and happy weekend. Please check out the blog next week to read our team’s evaluations of TRC Calls to Action 13 through 17: Language & Culture, and Calls to Action 18 through 21: Health.

 

Until next time, 

Team ReconciliAction

IBA 2020 Reflections: The Honorable David Lametti on Achieving Justice

Tansi Nîtôtemtik, 

 

Thank you for tuning in for our reflections this week.  The IBA conference is a yearly highlight for so many, and we are grateful to the Faculty administration for sponsoring our attendance so that we may share the highlights with our readers. 

 

(Artwork: Bradly Wohlgemuth in Katerina Tefft, “Canadian justice system failing Aboriginal people”, (13 August 2013), online: The Manitoban <http://www.themanitoban.com/2013/08/canadian-justice-system-failing-aboriginal-people/15822/>)

 

Today’s post will reflect on the Achieving Justice for Indigenous Peoples in Canada presentation given by Canada’s Attorney General and Minister of Justice, The Honorable David Lametti.  It was nice to see Minister Lametti speak on the topic of Justice and Indigenous people, and engage directly with the Indigenous legal community on how to improve the current system.  

 

The Canadian Justice system has historically been oppressive to Indigenous people, from the creation of the Mounted Police for the purpose of driving Indigenous people onto reserves, to the problems created by over policing, lack of non-police services, and the continued over-representation of Indigenous people in the justice system.^[1]  In some provinces, an Indigenous male is more likely to be incarcerated then he is to finish high school.^[2]  The government has long been aware of the issues faced by Indigenous people in the justice system, even if we only look to such touchstone reports as Manitoba’s Aboriginal Justice Inquiry (AJI), the report of the Royal Commision on Aboriginal People (RCAP) and the final report of the TRC.^[3]  Through these reports,formal solutions and recommendations for improving the justice system for Indigenous people have been under discussion for over 30 years, which makes it all that much more disheartening to hear the Minister state that the problem of over-representation is getting worse, and not better.  This is a system that has been likened to a continuation of the horrific residential school system, and we cannot continue to discuss it without change for another 30 years.^[4]  

 

The Minister acknowledged systemic racism, and mentioned the need for reconciliation. Much of Minister Lametti’s presentation discussed diversifying the judicial bench at federal levels of court. He echoed his earlier calls from the September 2020 Diversity on the Bench forum, and encouraged IBA attendees to apply for judicial appointment.^[5] But perhaps the problem behind a lack of Indigenous applicants lies more with the broken system than Minister Lametti was willing to acknowledge.  The application process is an onerous one, and the historic profile of the judiciary is well - monochrome. Martha Jackman, a law professor at the University of Ottawa, and co-chair of the National Association of Women and the Law (NAWL) believes that many people self select out of the application process with the “probably accurate” belief that they won’t be appointed.^[6]  In addition, the requirement of both French and English fluency at the Supreme Court of Canada level is a barrier for Indigenous applicants who may well be “functionally bilingual”, but in their own language instead of French.^[7]  

 

A key moment during the talk came when former IBA president Koren Lightning-Earle posed a question to Minister Lametti about this bilingual criteria as a barrier to the appointment of Indigenous jurists. In a disappointing response, the Minister spoke to “tight word limits” and the need for lawyers to “plead in those two languages without the need of a translator” before stating that those with a goal of reaching the SCC should “begin learning [to speak] in either French or English”.^[8]  This statement ignores the deep and lasting effects of colonialism on Indigenous people, and is not reconciliatory in tone.  As one attendee pointed out, spoken French recalls traumatic memories of residential schooling for members of their family.  Team ReconciliAction is alive to the significance of both English and French languages in Canadian culture.  But Indigenous languages are the first languages spoken on this land. If Canada truly wants to reconcile and improve Cananda-Indigenous relations, Indigenous languages should be welcomed into colonial systems as an accepted form of bilingualism.

 

In the end, our takeaways from this session were as follows:

• Canada is keenly aware of the issues faced by Indigenous people in the justice system; and 
• Canada knows that the judiciary lacks Indigenous representation; and
• Canada can say many of the right words, like systemic racism, achieving justice, addressing reconciliation, diversity on the bench etc; but
• Canada isn’t willing to disrupt the colonial system to create meaningful change for Indigenous people at this time. 

 

We are grateful that we were able to be present for this discussion and we give our thanks to the engaged conference attendees who asked thoughtful and deliberate questions of the Minister and expected meaningful responses. We left Day 1 of the 2020 IBA conference hungry for Day 2 on October 23.  Stay tuned for tomorrow’s reflection on Advocacy in the Pandemic. 

 

Until next time, 

Team ReconciliAction

 

 

¹ Public Inquiry into the Administration of Justice and Aboriginal People, Report of the Aboriginal Justice Inquiry of Manitoba. Volume 1: The Justice System and Aboriginal People (Winnipeg: Province of Manitoba, 1991) [AJI]; See also Canada, Bridging the cultural divide: a report on Aboriginal people and criminal justice in Canada, Royal Commission on Aboriginal Peoples (Ottawa: The Commission, 1996) [RCAP];Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa: Truth and Reconciliation Commission of Canada, 2015) [TRC Summary]; Office of the Correctional Investigator Government of Canada, "Indigenous People in Federal Custody Surpasses 30% - Correctional Investigator Issues Statement and Challenge - Office of the Correctional Investigator", (16 April 2020), online: <https://www.oci-bec.gc.ca/cnt/comm/press/press20200121-eng.aspx>.

² Saskatchewan Human Rights Commission, Courageous Conversations: Engaging Citizens in Conversations that Matter, Chief Commissioner D. Arnot (Saskatchewan: Concentus Citizenship Education Foundation Inc., 2016).

³ AJI, supra note 1; TRC Summary, supra note 1; RCAP, supra note 1.

⁴ Nancy Macdonald, “Canada’s prisons are the ‘new residential schools’”, Maclean’s Canada (18 February 2016), online: <https://www.macleans.ca/news/canada/canadas-prisons-are-the-new-residential-schools/>.

⁵ John Schofield, “Federal justice minister invites diverse communities to make judicial applications”, The Lawyers Daily (18 September 2020), online: <https://www.cbabc.org/News-Media/News/2020/Federal-justice-minister-invites-diverse-communiti>.

⁶ Dale Smith, “Overcoming the diversity deficit on federal courts”, CBA National Magazine (14 October 2020), online: <http://www.nationalmagazine.ca/en-ca/articles/law/judiciary/2020/overcoming-the-diversity-deficit-on-federal-courts>.

⁷ Peter Zimonjic, “Functionally bilingual requirement for Supreme Court justices here to stay, says Wilson-Raybould”, (24 October 2016), online: CBC News <https://www.cbc.ca/news/politics/rowe-campbell-wilson-raybould-supreme-court-1.3819210>.

⁸ The Honorable David Lametti, Achieving Justice for Indigenous Peoples in Canada (Indigenous Bar Association Conference, Canada, 2020).

IBA Seminar 1: LEGAL ETHICS AND PROFESSIONALISM

Tansi Nîtôtemtik,

Continuing our coverage of the IBA conference, today we will be reflecting on Seminar 1: Legal Ethics and Professionalism. Which was presented by Kathleen Lickers, I.P.C. and Candice Metallic, IPC and they discussed the Federation of Law Societies of Canada’s - Proposed Model Code Amendments ^[1]. The  agenda included a brief background of the “Model Code”, an overview of the proposed changes to the FLSC model code and important impassioned discussions on systemic discrimination and harassment in the legal community.  

The Model Code was developed by the Federation of Law Societies (the “Federation”) to set general rules, guidelines and values for the conduct of legal professionals throughout  Canada and was adopted in 2009.  The Standing Committee was created by the Federation to review the Model Code regularly to ensure it kept up with changing policies so that it could respond to change in a timely manner. 

Due to increasing awareness of discrimination which remains prevalent in the legal profession, the Standing Committee is proposing amendments to Rule 6.3 of the Model Code concerning discrimination, harassment, reprisal and ex-parte communication that will include specific guidance regarding bullying issues and will clarify the relevant obligations. The final amendments will be submitted for approval in December of 2020 after having exhausted appropriate feedback. ^[2]

6.3 HARASSMENT AND DISCRIMINATION

6.3-1 The principles of human rights laws and related case law apply to the interpretation of this rule. A lawyer must not discriminate against a colleague, employee, client or any other person.

6.3-2 A term used in this rule that is defined in human rights legislation has the same meaning as in the legislation. A lawyer must not harass a colleague, employee, client or any other person.

6.3-3 A lawyer must not sexually harass any person. A lawyer must not sexually harass a colleague, employee, client or any other person.

 6.3-4 A lawyer must not engage in any other form of harassment of any person. A lawyer is prohibited from engaging or participating in reprisals against a colleague, employee, client or any other person who has (a) inquired about their rights or the rights of others, (b) made or contemplated making a complaint of discrimination, harassment or sexual harassment, (c) witnessed discrimination, harassment or sexual harassment, or (d) assisted or contemplated assisting in any investigation of or proceeding related to a complaint of discrimination, harassment or sexual harassment.

 

The focus of this presentation was discrimination and harassment. Not to say that the issues around reprisal and ex-parte communication are not important, but for the context and time constraints the speakers wanted to draw attention to those particular issues.  As the current rules and commentary on discrimination and harassment are quite outdated, this effort to update them is aimed at reflecting what people are experiencing in the legal profession now.

The proposed amendments’ new language for  Rules 6.3.1 and 6.3.2 (proposed changes are found  in the commentary) is intended to remind counsel that they should not discriminate and indeed have an obligation not to discriminate or harass. The original language was unclear  and broad, unlike the new language which asserts and affirms the special responsibility of lawyers to respect the requirement of human rights laws and health and safety laws to create safe workplaces. In sustaining the principles of human rights laws, lawyers have a duty to learn and remain current, which grounds continuing professional obligations to keep abreast of new laws as they evolve and to evolve with them. 

These are all good changes, but there are gaps in addressing systemic discrimination in these proposed amendments. These gaps highlight the need for  advocacy from law associations not just from organizations like the IBA but from all Law Societies and others to draw out what is missing . Unlike the harassment and reprisal section, discrimination is the only area of these rules where the Federation is not wanting to extend to licensees beyond their law firms and work environment. Accountability for conduct in the office but not outside is a noted criticism.

Dismantling systemic discrimination should be one of those professional obligations and duties required to uphold the principles of human rights. The presenters commented that the Federation really missed the mark on this point.  By not addressing systemic discrimination, minorities whose distinctions (whether intentional or not) have the effect of imposing burdens or disadvantages on the individual or group. For example, refusing to provide legal services or even employ a person for reasons of personal characteristics. Many examples were given, all demonstrating that much work is needed and feedback from organizations like the IBA is essential to provide a vehicle for change and to further realize ideas for services and programs to combat discrimination. These goals should be the focus of the Federation and not forgotten about. 

We would like to leave off with a quote from the Honourable Senator Murray Sinclair:

 “Discrimination becomes systemic when it becomes embedded within and perpetuated by an organization, culture, or social system, either intentionally or as an accidental bi-product of innocently motivated practices that adversely affect a defined group because of undeniable attributes.”^[3]

 

Until next time 

ReconciliAction YEG

 

 

 [1] Federation of Law Societies of Canada (FLSC), “Model Code of Professional Conduct” (2019) online: <flsc.ca/national-initiatives/model-code-of-professional-conduct/>.

[2] FLSC, “Consultation Report” (Jan 29, 2020) online (PDF): <flsc.ca/wp-content/uploads/2020/01/Consultation-Report-Draft-Model-Code-Amendments-with-Draft-Rules-and-Commentary.pdf>.

[3] Senator Murray Sinclair, “Systemic Discrimination”, (Dec 17, 2018) online (blog): <sincmurr.com/2018/12/17/systemic-discrimination/#:~:text=Systemic%20Discrimination%20Posted%20on%20December%2017%2C%202018%20by,bias%20built%20into%20the%20structure%20of%20a%20system>.

IBA Conference Reflections: Royal Commissions, Inquiries and Inquests

(Image Credit: Indigenous Bar Association Twitter, October 8, 2020)

Tansi Nîtôtemtik,

Last Friday, the ReconciliAction YEG team had the privilege of attending the first days of the 32nd Annual Indigenous Bar Association (IBA) Conference. This year, the Conference is being held virtually on October 8-9 and 23rd. This year’s Conference is titled: “DISRUPTED SYSTEMS: Justice for Indigenous Peoples, Black Community Alliances, and the Global Pandemic as Catalyst for Lasting Change.” As always, the IBA has put together an amazing program with thought-provoking topics and inspiring stories. 

This week we will be taking a short break from our review of the TRC to reflect on the Conference. But first, we are sending a huge congratulations to ReconciliAction YEG team member Anita Cardinal-Stewart on her election to the National Indigenous Law Students Association (NILSA) as Vice President First Nations and as a Student Representative on the IBA Board! We are so excited to see the great things you will achieve in your new roles!

The presentation we are reflecting on today is “Royal Commissions, Inquiries and Inquests”, where a panel discussed Royal Commissions, Inquiries and Inquests, and how to make these proceedings can be used to make positive change for Indigenous peoples. The panel discussion was moderated by Alexandria (Ajay) Winterburn, and featured Kent Roach, Dr. Kim Stanton and Jonathan Rudin. In her introduction, Ajay Winterburn made a powerful statement: ”Indigenous people have been studied to death...in fact, they have been studied beyond death.” This comment captures the frustration associated with being studied so many times, yet being given so little in terms of resources or practical solutions that would actually change the systemic biases that continue to impact Indigenous peoples. 

Royal Commissions and Inquiries

A Royal Commission and Commission of Inquiry are very similar. They are both official inquiries into matters of public concern and national importance appointed by the Governor in Council. Commission findings must be reported to the Cabinet. Generally, Royal Commissions have a broader scope than Commissions of Inquiry, and generate more hearings, reports and research.^[1]

Dr. Stanton shared about her experiences with the Ghanian National Reconciliation ^[2] Commission in 2004, and talked about how she wondered why the Canadian government took so long to undertake a similar investigation. As Canada works through the TRC Calls to Action, it is important to remember its delay in making commitments towards reconciliation and the resulting need for urgency.

Inquests

An inquest is a public hearing conducted by a coroner that is heard by either a judge or jury of community members. Inquests are governed by provincial law, so the format depends on the province it is held in. The purpose of an inquest is to learn about the circumstances of a death. The findings of the inquiry will result in recommendations to prevent further deaths.^[3]  

The panel noted that there has been no inquest into the death of Colten Boushie, despite the exceptional circumstances of his death.^[4] The reticence of Saskatchewan’s government to conduct an inquest reflects a lack of desire to change the practices that resulted in the tragic loss of yet another young Indigenous person.^[5]  

Overall, the insights of the panel left us with a lot of new information and a new perspective on the use and purpose of commissions and inquests as a tool for change. Join us tomorrow as we continue our reflection!

Until next time,

Team ReconciliAction YEG

 

^{1University of British Columbia Library, “Government Publications: Canada” (Mar 23, 2020) online: <guides.library.ubc.ca/c.php?g=307049&p=2051354#:~:text=Royal%20Commissions%20and%20Commissions%20of,into%20matters%20of%20national%20concern.&text=Royal%20Commissions%20are%20appointed%20under,otherwise%20independent%20of%20government%20influence.>.}

²United States Institute of Peace, “Truth Commission: Ghana” (Jan 14, 2003) online: <usip.org/publications/2003/01/truth-commission-ghana>. 

³Ontario Ministry of the Solicitor General, “Death Investigations” (March 1, 2019) online: <mcscs.jus.gov.on.ca/english/DeathInvestigations/Inquests/AidToInquests.html#:~:text=An%20inquest%20is%20a%20public,the%20circumstances%20of%20a%20death.&text=The%20Chief%20Coroner's%20Rules%20of%20Procedure%20for%20Inquests%20is%20available,.inquiries%40ontario.ca>.

⁴Colten Boushie was a 22-year-old Cree man that was killed in 2016. For more information, click this link: https://www.nfb.ca/film/nipawistamasowin-we-will-stand-up/.

⁵See Stephanie Taylor, “One year after verdict, Colten Boushie's mom says 'time did not heal'” (Feb 9, 2019) CTV News, online: <ctvnews.ca/canada/one-year-after-verdict-colten-boushie-s-mom-says-time-did-not-heal-1.428818>.

Colonial Education and Reconciliation: an Overview

Tansi Nîtôtemtik,

 

To close out our week on the Truth and Reconciliation Committee’s Calls to Actions concerning education, we wish to take a step back and examine the societal and historical function of public education and its central role in understanding what reconciliation means. In doing so we wish to bring into question the compatibility between the imagined bounds of the current Canadian educational system and the very concept of reconciliation.

 

The Canadian state has long used education as an intentional colonial weapon. The state’s imposition of systematic violence against children under the guise of ‘education’ was a central tool in the commission of cultural genocide.^[1] This was an open and stated purpose of education, with John A. MacDonald declaring the following before the House of Commons: “Indian children should be withdrawn as much as possible from the parental influence and the only way to do that would be to put them in central training industrial schools where they will acquire the habits and modes of thought of white men.”^[2] The deliberate use of education to colonize went to equally insidious colonial policies - facilitating land acquisition for settler development. ^[3]

 

As we have noted this week, the Federal Government retains constitutional authority over First-Nations and Inuit Education and continues to govern this authority under the same Indian Act, just 25 years after the last residential school closed.^[4] In the face of this recent history, what understanding of reconciliation can be actualized under even the loftiest ambitions of our current educational system and legal framework?

 

Audrey Lorde - Courtesy of Silver Press

The term ‘reconciliation’ is a malleable and mutable concept. The word entered the Canadian Jurisprudence in the 1990 case of R v Sparrow,^[5] a landmark decision which recognized that the Musqueam band held existing Aboriginal rights to fish which were protected under section 35 of the Constitution Act - a right that couldn’t be infringed ‘without justification.’^[6]  The concept of reconciliation presented in Sparrow reads quite narrowly – the act of ‘reconciliation’ in Sparrow wasn’t between the Crown and the Musqueam people but was centered on reconciling the Federal Government’s power over Musqueam people, with the Federal Government’s duty to Musqueam people.^[7]

 

The legal use of ‘Reconciliation’ has evolved through the case law since Sparrow, and while the concept is still inconsistent it has adopted further meaning which seeks to reconcile the ‘pre-existence of Aboriginal peoples with the Crown’s assertion of sovereignty over Canadian territory.’^[8] This meaning and understanding invokes mutuality, principles of self-governance, and a call to deeply examine both the historical realities and legal fictions that have structured our present society. ^[9] These understandings of what reconciliation means continue to be conflated in law and governance – a modern building on the half-completed foundation of the one that stood before.

 

This last week we gave out failing or poor grades to almost all Calls to Action on Education. In addition to the four calls to Action in Education which we covered, the remaining three ^[10] also receive failing grades, as they have received little or no attention from governing bodies:

•  #7: We call upon the federal government to develop with Aboriginal groups a joint strategy to eliminate educational and employment gaps between Aboriginal and non-Aboriginal Canadians
•  #9:  We call upon the federal government to prepare and publish annual reports comparing funding for the education of First Nations children on and off reserves, as well as educational and income attainments of Aboriginal peoples in Canada compared with non-aboriginal people
• #11: We call upon the federal government to provide adequate funding to end the backlog of First Nations students seeking a post-secondary education.

Notably, the Calls to Action on education focus on eliminating current gaps in funding and education within the system as it currently exists. There is no excuse for the current Federal government, which ran two elections campaigns on providing educational opportunities to Northern communities, ^[11] to have not met the low bar set by these Calls to Action. But what can a reimagined public and social education system provide that extends beyond the scope of maintaining a status quo? 

 

To pose a hypothetical - if the government had acted responsibly and had miraculously earned A’s in all Calls to Action relating to education, which meaning of ‘reconciliation’ would it have aspired to: nation-to-nation mutuality or sovereign paternalism? Are the highest aspirations for Indigenous education bound by a ceiling in which First Nation, Inuit and Metis students are simply receiving a passable or comparable colonial education to non-Indigenous students? Can the same colonial legal and education systems that so recently sought to destroy the very humanity of Indiginous people be relied upon to provide just outcomes? 

 

The ideas of contemporary thinkers such as Audre Lorde and Paulo Freire, who both provided a reimagined definition of  ‘education,’ can help guide this conversation. Audre Lorde gave a speech in 1984 at Berkley which was directed at the exclusion of women of colour in academia. ^[12] In it, she posits: “For the master's tools will never dismantle the master's house. They may allow us temporarily to beat him at his own game, but they will never enable us to bring about genuine change ^[13]. Oppressive societal systems can’t be simply recalibrated to fix the harm they’ve done - they must be stripped down and reinvented. 

 

In 1968 Paulo Freire published his seminal work, “The Pedagogy of the Oppressed,” within one year of Pierre Elliot Trudeau attempting to pass the White Paper. While Freire’s writing centered around his experiences teaching in his home country of Brazil, it foreshadowed the effect that the residential school system would have in Canada. Freire fiercely critiqued any educational system which was unilaterally imposed by those in power against those whom they oppress. Regardless of intent - these systems harm both the oppressor and the oppressed.^[14] Freire presents education as an instrument – one which may either ‘facilitate the integration of the younger generation into the logic of the present system’ or ‘ become the practice of freedom, the means by which men and women deal critically and creatively with reality and discover how to participate in the transformation of their world.’^[15] 

Photo: Paulo Granchi Sobrihno

“There's no such thing as neutral education. Education either functions as an instrument to bring about conformity or freedom.” – Paulo Freire

 

Our position is that the Calls to Action on Education are but a starting point for the conversations that this country needs to undertake as it pertains to education and ‘reconciliation’. Education is more than curriculum – it is the vessel upon which we structure society and relate to each other. It can be an immensely powerful tool to get as close as we can to a functioning understanding of ‘reconciliation’.

 

This past week our team attended the Indigenous Bar Association’s Disrupted Systems conference. We will be featuring key panels and presenters from the October 9th session over the next several days. 

 

Until tomorrow,

 

Team ReconciliAction YEG 

 

¹ Discussion around the prefix of ‘cultural’ is contentious. See generally: Daniel Shwartz, “Cultural Genocide Label for Residential Schools Has No Legal Implications, Experts Say” CBC (13 June 2015), online: <https://www.cbc.ca/news/indigenous/cultural-genocide-label-for-residential-schools-has-no-legal-implications-expert-says-1.3110826>

² House of Commons Debates (9 May 1883), 1107–1108. 

³ Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 3.

⁴Indian Act, RSC 1985, c I-5, ss 114-117.

⁵ R v Sparrow, [1990] 1 SCR 1075. 

⁶ Ibid.

⁷ Ibid. 

⁸ Joshua Ben David Nichols, A Reconciliation Without Recollection? (Toronto: University of Toronto Press, 2020) at 41.

⁹ Ibid.

¹⁰ Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 147-150.

¹¹  Liberal Party of Canada, “Forward a Real Plan for Success: Building a Better Future With Indigenous Peoples” online: <https://liberal.ca/our-platform/>

¹² Audre Lorde, The Master’s Tools Will Never Dismantle the Master’s House (Berkley, Sister Outsider: Essays and Speeches, 2007) at 110- 114.

¹³ Ibid. 

¹⁴ Paulo Freire, The Pedagogy of the Oppressed (New York, Herder and Herder, 1972)

¹⁵ Ibid. 

TRC 5 Years Later: Early Childhood Education

Tansi Nîtôtemtik,

 

Early childhood education activities have been linked to “better educational attainment, physical health and gainful employment”.^[1] First Nations children who attend early childhood programs are more likely to meet communication milestones for speaking and understanding speech than their counterparts who did not attend such a program.^[2] These programs focus on methods to overcome the challenges of living in poverty, food insecurity, abuse or neglect, separation from parents, and/or loss of Indigenous knowledge, culture or language.^[3]

 

Unfortunately, in 2011,  78% of Indigenous children aged 0 to 5 years old did not have access to “intensive early childhood programs”,^[4] meaning these children are at an educational and employment disadvantage compared to their counterparts who attend such a program.

 

Call to Action #12 calls upon all levels of government to “develop culturally appropriate early childhood education programs for Aboriginal families.”^[5] The Call asks for “stable and adequate funding” to support the development of early childhood programs and, as was also mentioned in our examination of Call #5, to “address some of the deficit in parenting skills that is the legacy of residential schools.”^[6]

 

According to its website, the Government of Canada administers two Indigenous early learning programs:

1. The Aboriginal Head Start On Reserve program (AHSOR), and
2. The Aboriginal Head Start in Urban and Northern Communities program (AHSUNC).^[7]

Since 1995, the AHSUNC has provided funding for structured half-day preschool programs for approximately 4,600-4,800 First Nations, Inuit and Métis children per year.^[8] Three years later, AHSOR was created to target children living in First Nations communities, and reached 14,000 participants in the 2015-2016 reporting year.^[9] Both programs focus on “Indigenous culture and language; education and school readiness; health promotion; nutrition; social support; and parental involvement.”^[10] 

 

As part of these programs, the Government of Canada committed $1.7 billion over 10 years to early learning and childcare for Indigenous children.^[11] The funds will be managed in partnership with First Nations, Inuit, and the Métis Nation.^[12] The government’s vision includes “[...] happy and safe Indigenous children and families, strong cultural identity, and a comprehensive and coordinated system that is anchored in self-determination, centred on children and grounded in culture.”^[13]

 

Indigenous early childhood education programs have a 25-year history in our country. The programs reach an estimated 18,600 to 18,800 Indigenous children per year, however Statistics Canada identified 136,100 Indigenous children ages 0 to 4 years in 2011.^[14] To reiterate the TRC’s final report, this means over three-quarters of Indigenous children are either not receiving or not accessing these early childhood education programs. This is a lost opportunity.

 

The promised additional funds and continued support for these programs meets the TRC’s suggestion for “stable and adequate funding”^[15] and potentially meets the call to “maximize Aboriginal control over Aboriginal education”^[16] by partnering with Indigenous governments. More information about the actual “partnership” between the federal government and Indigenous governments is necessary to understand if Canada is doing more to meet Call #12. Unfortunately, aside from the additional funding, there is no data to determine if Canada is developing or improving access to culturally appropriate child education programs. We award Canada a C for Call #12 given the promise of stable funding.

 

 

Until next time, Team ReconciliAction YEG

 

¹ Health Canada and the Public Health Agency of Canada, Evaluation of the Aboriginal Head Start in Urban and Northern Communities Program 2011-2012 to 2015-2016, by Office of Audit and Evaluation (Ottawa: Health Canada and the Public Health Agency of Canada, 2017) at 9 [Audit].

² First Nations Information Governance Center, “Early Childhood Education in First Nations Communities”, online: http://fnigc.ca/sites/default/files/ docs/reees_1_lifepath_childhood_0.pdf (poster providing stats regarding early childhood education).

³ Audit, supra note 1 at 9.

⁴ Canada, Truth and Reconciliation Commission, Honouring the Truth and Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg: The Commission, 2015) at 152 [TRC Report].

⁵Ibid at 152.

⁶Ibid.

⁷Government of Canada, “Indigenous Early Learning and Child Care”, online: https://www.canada.ca/en/employment-social-development/programs/indigenous-early-learning.html

⁸Audit, supra note 1 at 1.

⁹Ibid; Government of Canada, “Aboriginal Head Start on Reserve”, online: https://www.sac-isc.gc.ca/eng/1572379399301/1572379483050

¹⁰Ibid.

¹¹Government of Canada, “Indigenous Early Learning and Child Care”, online: https://www.canada.ca/en/employment-social-development/programs/indigenous-early-learning.html

¹²Ibid.

¹³Ibid.

¹⁴Statistics Canada, “Table 4: Age distribution and median age for selected Aboriginal identity categories, Canada, 2011”, online: https://www12.statcan.gc.ca/nhs-enm/2011/as-sa/99-011-x/2011001/tbl/tbl04-eng.cfm.

¹⁵TRC Report, supra note 2 at 152.

¹⁶Ibid.

5 Years After TRC: Federal Education Legislation

Tansi Nîtôtemtik,

Call #10 relates to federal legislation governing Indigenous education, and is stated as follows:^[1]  

We call on the federal government to draft new Aboriginal education legislation with the full participation and informed consent of Aboriginal peoples. The new legislation would include a commitment to sufficient funding and would incorporate the following principles: 

1. Providing sufficient funding to close identified educational achievement gaps within one generation.
2. Improving education attainment levels and success rates.
3.  Developing culturally appropriate curricula.
4. Protecting the right to Aboriginal languages, including the teaching of Aboriginal languages as credit courses
5. Enabling parental and community responsibility, control, and accountability, similar to what parents enjoy in public school systems.
6. Enabling parents to fully participate in the education of their children.
7. Respecting and honouring Treaty relationships

 

While education is predominantly a provincial obligation and responsibility, First Nations and Inuit education falls under the constitutional jurisdiction of the federal government.^[2] The federal legislative authority for First Nations and Inuit education remains to be the Indian Act,^[3] with 107,000 students between the ages of 4 to 21 continuing to be educated under this framework.^[4]

 

Federal funding for First Nations education has been long underfunded - with disparate government reporting making it difficult to know precise numbers. While a relatively recent argument of the federal government is that this number can’t be specifically calculated,^[5] responding reports have estimated the funding gap between students being educated on-reserve and provincial counterparts to be 30% as recently as 2016.^[6]

 

Call #10 arose largely out of concerns for the federal government’s attempt to pass Bill C-33, the First Nations Control of First Nations Education Act in 2014.^[7] This deceptively named bill ‘dramatically’ increased federal control over every aspect of First Nations education,^[8] and was met with fierce opposition before it was shelved that same year. This occurred during the ongoing Truth and Reconciliation Commissions’ reporting and highlighted the vulnerability of the First Nation’s authority over education. There have been no further attempts to address the federal legislative framework of First Nations education.

 

Currently, First Nations communities and organizations designated by First Nations communities do have ‘control’ over how education is administered, however this is severely handicapped by the limited funding provided by the federal government. Until 2019, funding was proposal-based and not guaranteed – contingent on onerous reporting burdens.^[9]While having input on the administration of education on reserves, providing past the minimum standards has been restricted by unequal funding and in many instances the minimum standards are not being met. ^[10]

 

In January of 2019, Indigenous Services Canada did implement a new funding model that moved away from proposal-based programs and into a more straightforward formula-based funding model, which also worked towards addressing some of the principles of call #10. There was an estimated 30% increase in overall funding, with the inclusion of $1500 per student per year to support language and culture programming.^[11] This is a welcomed move in policy, however it does not concern federal Legislation and outcomes are yet to be reported on. 

 

For our grading purposes, the 2019 policy amendments are but a small concession made by the federal government, and not enough to earn a grade higher than a “D”. The language included is vague and doesn’t guarantee an elimination of the funding gap, relying on statements such as ‘ensure base funding is comparable to provincial systems.’^[12] While new, these policies so far have been unable to account for change or stress on the funding system – leaving First Nation schools additionally vulnerable during the Covid-19 epidemic.^[13]

 

 

The enacting federal legislation for First Nations education continues to be the Indian Act, and policy amendments are vulnerable to be changed on a whim when new governments are elected or when current governments shift away from campaign promises. Call #10 is direct, it calls for federal legislation - this has not been done. Our assigned Grade is a D.  

 

Until Tomorrow,

ReconciliAction YEG

 

¹ Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015).

² Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91(24). Métis Education follows a different framework across provinces, we hope to explore this in further detail in the coming weeks. 

³ Indian Act, RSC 1985, c I-5, ss 114-117.

⁴ Indigenous Services Canada, "Backgrounder - New Funding and Policy Approach for First Nations Kindergarten to Grade 12 Education," (21 January 2019) online: <https://www.afn.ca/wp-content/uploads/2019/01/2019.01.21_BG-Word_K-12Education-EN.pdf>.

⁵ Jody Porter, "First Nations Students Get 30 Per Cent Less Funding Than Other Children, Economist Says", CBC (14 March 2016) online: <https://www.cbc.ca/news/canada/thunder-bay/first-nations-education-funding-gap-1.3487822>.

⁶ Don Drummond &amp; Ellen Kachuck Rosenbluth, “The Debate on First Nations Education Funding: Mind the Gap” (2013) Queen’s University Working Paper No 49, online: &lt;queensu.ca/sps/sites/webpublish.queensu.ca.spswww/files/files/Publications/workingpapers/49-Drummond-Rosenbluthv3.pdf

⁷ Bill C-33, An Act to establish a framework to enable First Nations control of elementary and secondary education and to provide for related funding and to make related amendments to the Indian Act and consequential amendments to other Acts, 2nd Sess, 41st Parl, 2014. 

⁸ Judith Rae, "The Federal Control of First Nations Education Act", Olthuis Kleer Townshend LLP, online: <https://www.oktlaw.com/federal-control-first-nations-education-act/#:~:text=The%20Harper%20government's%20proposed%20First,and%20dramatically%20increases%20federal%20control.>.

⁹ Indigenous Services Canada, "First Nations Education Transformation" (4 April 2019) online: <https://www.sac-isc.gc.ca/eng/1476967841178/1531399315241>

¹⁰ See e.g. Janet French, "Northlands School Division Struggling with Leadership, Fiances", Edmonton Jounrnal (15 June 2019) online: <https://edmontonjournal.com/news/local-news/northland-school-division-struggling-with-leadership-finances>.

¹¹ Indigenous Services Canada, "New Policy and Funding Approach for First Nations Kindergarten to Grade 12 Education" (4 April 2019) online: <https://www.sac-isc.gc.ca/eng/1553859736924/1553859762978>

¹² Ibid. 

¹³ Jorge Barrera, "First Nations Back-to-School COVID-19 Funding Falls Far Short, Says AFN Regional Cheif", CBC (26 August 2020) online: <https://www.cbc.ca/news/indigenous/first-nations-school-funding-covid19-1.5701135>

 

Lets Talk Gaps in Education for On & Off Reserve First Nations Peoples

Tansi Nîtôtemtik,

    8. We call upon the federal government to eliminate the discrepancy in federal education funding for First Nations         children being educated on reserves and those First Nations children being educated off reserves. ^[1]

TRC Call to Action #8 is aimed at addressing gaps in the provision of basic services of education for on and off reserve members and reforming institutionalized inequities in the quality and delivery of educational programs.^[2] These gaps are not only important for the Canadian government to acknowledge and address, but important for all for Canadians to be made aware of because education is a basic inherent human right.  This right that has that has been bungled horrifically by the past actions of Canadian governmental policies (i.e. Residential Schools).^[3] Indigenous peoples got too much so called “education” (and we use that term very loosely) and now too little because of the lack of support and funding available for those wishing to pursue education betterment of themselves and communities.

To eliminate the discrepancy between federal educational funding for First Nations on and off reserve, comparable funding should be a matter of grave importance and principle. Funding should also make way for successful inclusion of languages, culture, and traditional knowledge in accordance with each Nation’s history. In other words, funding should not only be provided for colonial education.

What do we mean when we mention gaps? These can include attainment and access to education, quality of education and the lack of comparable funding from different applicable levels of government. For many First Nations youth, particularly those on reserve, completing even high school is an unattainable goal. According to the Aboriginal Affairs and Northern Development Canada (AANDC) Nominal Roll Database in 2010/2011^[4], the graduation rate of First Nations people living on reserve in 2011 was 35.3 percent, compared to78 percent for the general population as a whole. ^[5]

To help address the education attainment gap, the Government of Canada has made significant investments, totaling $2.6 billion over 5 years for primary and secondary education on reserve. This includes funding to address immediate needs and to keep pace with cost growth over the medium term, as well as investments in language and cultural programming and literacy and numeracy. In addition, also working closely with various First Nations partners to implement an inclusive and comprehensive engagement process for education on reserve. ^[6] However, this funding fails to address off-reserve members and has yet to be proven effective or adequate. On January 21, 2019, a new co-developed policy and improved funding approach to better support the needs of First Nations students on-reserve was announced. This policy claims to replace outdated programs and improve access to predictable core funding that is comparable to provincial systems. Time will tell if the new funding approach proves fruitful and effective, and ReconciliAction YEG will keep an eye on this.

Looking at off-reserve education gaps, it is promising to see some provincial efforts to offer community-driven approaches to improve education and job training for Aboriginal people living off-reserve. For example, British Columbia’s Off-Reserve Aboriginal Action Plan (ORAAP) Protocol Agreement is a great initiative that all provinces should emulate.[6] For other off-reserve members, access to various bursaries and grants such as Indspire for example is available, ^[7] but it appears that off-reserve members face a barrier to accessing funding if their bands cannot assist. More work is needed to fill this gap. More work is needed everywhere and though on-reserve gaps are being acknowledged and acted upon, education gaps off-reserve remain.

Until next time ReconciliAction YEG

 

[1] http://trc.ca/assets/pdf/Calls_to_Action_English2.pdf

[2] Canadian Geographic, “History of Residential Schools” online: <indigenouspeoplesatlasofcanada.ca/article/history-of-residential-schools/>.

[3] Trends in high school graduation rates of First Nation students ordinarily resident on reserve, from 2006/07 to 2010/11, Aboriginal Affairs and Northern Development Canada (AANDC) Nominal Roll Database

[4] Don Drummond & Ellen Kachuck Rosenbluth, “The Debate on First Nations Education Funding: Mind the Gap” (2013) Queen’s University Working Paper No 49, online: <queensu.ca/sps/sites/webpublish.queensu.ca.spswww/files/files/Publications/workingpapers/49-Drummond-Rosenbluthv3.pdf>.

[5] Government of Canada, “Delivering on Truth and Reconciliation Committee Calls to Action” online: Education <rcaanc-cirnac.gc.ca/eng/1524495412051/1557511602225>. 

[6] Government of British Columbia, “Off-Reserve Aboriginal Action Plan (ORAAP)” online: <2.gov.bc.ca/gov/content/governments/indigenous-people/supporting-communities/urban-off-reserve-aboriginal-people/off-reserve-aboriginal-action-plan-oraap>.

[7] Indspire, “Students”, online: <indspire.ca/programs/students/>. 

“The Spanking Law” remains on the Books

Tansi Nîtôtemtik,

While many of the TRC Calls to Action require the Government of Canada to make sweeping institutional and structural changes, #6 is simply stated. TRC Call to Action #6 calls for Section 43 of the Criminal Code^[1] , also known as the “spanking law”, to be repealed. 

S.43 excludes “reasonable physical correction of children by their parents and teachers”^[2] from the definition of assault in the Criminal Code, as follows:

Correction of child by force

43 Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.^[3]

If you are surprised that corporal punishment against children is explicitly protected in the Criminal Code, you may be even more surprised to find that this law was unsuccessfully challenged in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) at the Supreme Court in 2004.^[4] In that decision, the Court clarified that “corrective force” will only be reasonable in certain situations, to create a “zone in which discipline risks criminal sanction”.^[5] For example, the Court reasoned that s.43 would not apply to children under two, children incapable of understanding the need for “correction”, or conduct that does not cause harm.^[6]  

Why repeal s.43? 

As a signatory to the United Nations Convention on the Rights of the Child, Canada has a responsibility to ensure that children are protected from all forms of abuse under Article 19(1).^[7] The United Nations Committee on the Rights of the Child has since recommended that Canada repeal s.43. The recommendation for repeal is supported by a substantial body of research showing that corporal punishment negatively effects children.^[8]

TRC Call to Action #6 recognizes that corporal punishment is “a relic of a discredited past and has no place in Canadian schools or homes.”^[9] The TRC’s interest in corporal punishment stems from the frequent and excessive use of such punishment in Residential Schools to control and discipline Indigenous children. Often this punishment became abusive, and has created generations of resulting trauma.^[10]   Many Indigenous groups carry strongly held beliefs that children are gifts “on loan” from the Creator, and should not be physically punished.^[11] The condonation of corporal punishment in s. 43 goes against these beliefs.

What progress has been made?

Upon completion of the TRC, a bill to repeal s. 43 was introduced to the Senate, but it did not progress. As of today, s.43 remains the law in Canada. 

Team ReconciliAction takes the position that this should have been one of the first TRC Calls to Action for the Government to complete. Let’s leave this antiquated law behind, and move towards a future of reconciliation that honors our children.  

Until next time,

Team ReconciliAction YEG

 

¹Criminal Code, RSC 1985, c C-46, s.43. [Code]

²Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 at para 1. [CFCYL]

³Code, supra note 1. 

⁴CFCYL supra note 2. 

⁵Ibid at para 40. 

⁶Ibid at paras 24-30.

⁷Laura Barnett, “The "Spanking" Law: Section 43 of the Criminal Code”, online: Library of Parliament^<lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/201635E#a3>, citing Convention on the Rights of the Child, 20 November 1989, Article 19(1). (Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.)

^8Ibid.

⁹Truth and Reconciliation Commission, “Canada’s Residential Schools: The Legacy,” The Final Report of the Truth and Reconciliation Commission of Canada (December 2015) at 66. 

^{10Facing History and Ourselves, “Stolen Lives: The Indigenous People of Canada and the Indian Residential Schools, Chapter 7: Punishment and Abuse”, online: <facinghistory.org/stolen-lives-indigenous-peoples-canada-and-indian-residential-schools/chapter-4/punishment-and-abuse>. (“The line between punishment and abuse was frequently crossed. Many in the schools’ administrations believed that the students’ independent spirit had to be broken in order for them to accept a new way of life. Students who did not adhere to school schedules and regulations received strappings (whippings) and were often humiliated in front of peers.” )}

¹¹Kathleen Harris, “TRC promise puts Liberals on track to repeal spanking laws” (Dec 22, 2015) online: CBC News <cbc.ca/news/politics/spanking-truth-reconciliation-laws-1.3376725>.

^{12Bill S-206, An Act to amend the Criminal Code (protection of children against standard child-rearing violence), 1st Sess, 42nd Parl, 2015 (First Reading December 8, 2015).}

Joyce Echaquan: Death by Racism

 

Tansi Nîtôtemtik,

 

Our schedule this week includes evaluations of Calls to Action #6 through #12, which focus on reconciliation as it relates to education. However, recent events have necessitated we pause this work for today. 

(Image Credit: THE CANADIAN PRESS/Paul Chiasson)

Last week, an Indigenous mother of seven filmed her final moments from a hospital bed. Joyce Echaquan pleaded for help while the nursing staff made cruel and racist remarks about her.^[1]  This woman was treated as contemptible and worthless by the medical staff charged with her care.  Joyce died of complications from hospital-administered morphine shortly after she live-streamed her inhumane treatment.^[2]

 

Today, we honor Joyce and bring attention to the gap in adequate healthcare for Indigenous people. Joyce was an Atikamekw woman from the Manawan Reserve community in central Quebec.^[3] She was 37 years old, and a mother to seven children ranging from 7 months old to 19 years old.^[4] Her seven children and bereaved husband are left to pick up the pieces after her entirely preventable death. 

 

The notion that Indigenous people experience difficulty in receiving necessary health care is not new. For her part, Joyce had struggled with heart health for some time, and had often expressed fear of the hospital.^[5]  Joyce is not the first Indigenous person in Canada to die needlessly in the care of our health systems due to systemic and ingrained racism. In 2008, Brian Sinclair died of a treatable bladder infection after being ignored in a waiting room for 34 hours.^[6]  In 2016, Elder Hugh Papik had a stroke, but  was dismissed as drunk by hospital staff, and later died.^[7] In 1988, Katie Ross died of an untreated gunshot wound while strapped to the hospital bed, after medical staff failed to properly assess her and diagnosed her with anxiety.^[8] Today we ask what is Canada doing to ensure that all Canadians have access to the same standard of care?

 

Canada has a serious data deficit when it comes to collecting accurate, up-to-date and complete data on health outcomes for First Nations, Métis and Inuit.^[9] We do know that health indicators like infant mortality, life expectancy, and access to health services lag behind for Indigenous people in comparison to non-Indigenous people.^[10] We also have horrific and extreme accounts of racism in healthcare experienced by Indigenous people - including forced sterilization in the prairie provinces as recently as 2018.^[11]

 

TRC Call to Action #24 calls for training for health care professionals to combat racism and understand the effects of the legacy of colonialism on Indigenous people.^[12]  As we will show in a few weeks, this type of training has been implemented in various forms across Canada.^[13] Outside of the TRC, other reports have been released addressing inequity in healthcare. In Quebec where Joyce sought medical care, the Viens Report issued 142 Calls to Action specific to the Quebec health care system and its treatment of Indigenous people.^[14] 

 

Despite the action taken to date, in September 2020, Joyce Echaquan died in hospital of racism. Following her death, the Premier of Quebec denied any issue of systemic racism.^[15] Sit with that for a second—the Premier flatly ignored the 488 page Viens Report and its 142 Calls to Action that target Quebec’s racism problem. Straight up denial is right out of the tired, old, racist playbook. It is tragic that Joyce’s husband and children would probably have welcomed her home after being treated in hospital if it weren’t for racism. It is unacceptable that in 2020 Joyce’s necessary medical care was ignored because of racism. 

 

Today we honor the life of Joyce Echaquan, who should still be with us today.  We support the protestors in Quebec who joined the Justice for Joyce march this past Saturday.  Most of all, we mourn along with Joyce’s seven children and her husband at the untimely loss of their mother and wife. 

(Image Credit: Global News)

A Go Fund Me has been organized for the care of Joyce’s seven children, if you would like to contribute you can do so here.  

 

Tomorrow we will return to our evaluation of TRC Call to Action #6.

 

Until Next Time,

 

Team ReconciliAction YEG

 

 

¹ We will not be providing a source for this video, as ReconciliAction does not support the plague of voyeurism of BIPOC death.

² Jesse Feith, “Indigenous woman records slurs by hospital staff before her death”, (30 September 2020), online: Montreal Gazette <https://montrealgazette.com/news/local-news/indigenous-woman-who-died-at-joliette-hospital-had-recorded-staffs-racist-comments>.

³ Kristy Kirkup & Tu Thanh Ha, “Indigenous woman records slurs, taunts of Quebec hospital staff before her death”, The Globe and Mail (29 September 2020), online: <https://www.theglobeandmail.com/canada/article-indigenous-woman-records-slurs-taunts-of-quebec-hospital-staff-before/>.

⁴ Ibid.

⁵ Jesse Feith, supra note 2

⁶ Jane Gerster, “A man was ignored to death in an ER 10 years ago. It could happen again”, (21 September 2018), online: Global News <https://globalnews.ca/news/4445582/brian-sinclair-health-care-racism/>.

⁷ “Review into Hugh Papik’s death calls for cultural training for health care workers”, (27 February 2017), online: CBC News <https://www.cbc.ca/news/canada/north/hugh-papik-aklavik-stroke-death-review-recommendations-1.4001279>.

⁸ Heather I Peters & Bruce Self, “Colonialism, Resistance and the First Nations Health Liaison Program” (2005) 4:1 Currents: New Scholarship in the Human Services 12.

⁹ An Overview of Aboriginal Health in Canada (Prince George, BC: National Collaborating Center for Indigenous Health, 2013) at 3.

¹⁰ Brenda Gunn, Ignored to Death: Systemic Racism in the Canadian Healthcare System (Submission to EMRIP the Study on Health, Robson Hall Faculty of Law, University of Manitoba, 2016) [unpublished] at 5.

¹¹ Avery Zingel, “Indigenous women come forward with accounts of forced sterilization, says lawyer”, CBC News (18 April 2019), online: <https://www.cbc.ca/news/canada/north/forced-sterilization-lawsuit-could-expand-1.5102981>.

¹² Truth and Reconcilliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconcilliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 322.

¹³ See “The Royal College of Physicians and Surgeons of Canada :: Indigenous health”, online: <http://www.royalcollege.ca/rcsite/health-policy/initiatives/indigenous-health-e>.

¹⁴ Government of Quebec, Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec: listening, reconciliation and progress (Quebec, 2019).

¹⁵ Kristy Kirkup & Tu Thanh Ha, supra note 3.