University of Alberta Faculty of Law Blog

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
8. 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.
9. 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.

5 Years After TRC: Parenting Programs (Part 2)

Tansi Nîtôtemtik,

 

In yesterday’s post, we began our investigation of Canada’s response to Call to Action #5 with a summary of the historical events leading up to the Truth and Reconciliation Commission’s (TRC) final report. In short, the devastating effects of the residential school experience and discriminatory child welfare apprehensions has left some Indigenous families without parenting “role models”.^[1] 

 

In Calls to Action #1 through #5, the TRC concluded that improving outcomes for Indigenous children starts with keeping them in their communities and investing in culturally appropriate programs to help them grow up safely.^[2] This includes preventative programs to improve parenting skills as a way of keeping Indigenous children in their family homes.^[3]

 

In response to the Call #5, the Government of Canada website states that starting in 2017, it committed “more than $1.4 billion in new funding over 6 years [...] for First Nations child and family services.”^[4]  The Government of Canada has committed to “shifting the programming focus to prevention and early intervention: Canada is working with partners to fundamentally change the system to be truly child-centered, community-directed and focused on prevention.”^[5] This includes “a dedicated Community Well-Being and Jurisdiction Initiatives stream of funding to support First Nations communities to lead the development and delivery of prevention services and to assert greater control over the well-being of their children and families.”^[6] Canada is moving in the right direction by shifting their focus to provide preventative programs with the potential to thwart problematic parenting behaviours before they begin. Unfortunately it is possible that “soft supports” like parenting programs may not provide sufficient support for Indigenous parents to keep custody of their children unless coupled with “material supports” like housing or respite programs.^[7]

 

Parenting programs have been implemented to some extent, but they lack funding and qualified staffing to be sufficiently effective at promoting happy and healthy Indigenous families.^[8] The results of a 2017 Government of Canada survey found that 76% of respondents believed that parenting and healthy family programs would help prevent Indigenous children from being removed from their families.^[9] The same survey found that parenting programs available in First Nations communities are mostly “underfunded, not consistent or poorly-run.”^[10] Most of these programs lack sufficient staffing and/or funding to function properly and effectively.^[11]

 

In summary, more funding is needed for parenting programs in order to help with the reduction in the number of children in care. While these programs exist to some extent in First Nations communities, they lack sufficient funding to be properly effective. We give Canada a grade of C- for developing culturally appropriate parenting programs. The lower grade reflects the need for additional funding and support to maintain these programs where they exist, and the need to continue to develop additional programs.

 

Our Final Report Card for Calls to Action #1 through #5 demonstrates a need for Canada to double down on its efforts to develop preventative programs to improve outcomes for Indigenous children and their families.

Until next time, Team ReconciliAction YEG

 

¹Canada, 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 139-144.

²Ibid at 144.

³Ibid.

⁴Government of Canada, “Child Welfare”, online: <https://www.rcaanc-cirnac.gc.ca/eng/1524494379788/1557513026413>.

⁵Ibid.

⁶Ibid.

⁷Judith Mosoff et al, “Intersecting challenges: mothers and child protection law in BC”, (2017) 50:2 UBC L Rev 435 at 446.

⁸Indigenous Services Canada, “Improving child and family services in Indigenous communities: Survey summary report”, online: <https://www.sac-isc.gc.ca/eng/1530823640599/1535381807721>.

⁹Ibid.

¹⁰Ibid.

¹¹Ibid.

5 Years After TRC: Parenting Programs

Tansi Nîtôtemtik,

The Truth and Reconciliation Call to Action #5 states: “We call upon the federal, provincial, territorial, and Aboriginal governments to develop culturally appropriate parenting programs for Aboriginal families.”

Photo: BC Aboriginal Child Care Centre

In the summary of the Final Report of the Truth and Reconciliation Commission of Canada, this complex issue is summarized as follows:

 

“Intergenerational impact of the residential school experience has left some families without strong role models for parenting. An investment in culturally appropriate programs in Aboriginal communities has the potential to improve parenting skills and enable more children to grow up safely in their own families and communities." ^[1]

 

Colonial imposed ideas of parenting and family structure have long justified the apprehension of Indigenous Children and the separation of children from their families, communities and homes.  The government, church leaders and Indian agents administering Residential schools left parents with no option. Parents who would not willingly send their children to residential schools, which they saw as dangerous and harsh, were labelled to be unfit parents ‘indifferent to the future of their children.’^[2] This would subsequently ‘justify’ apprehension.

 

It has been well documented that children removed from their families and communities faced harsh discipline, institutionalized neglect, and a lack of supervision in which students were prey to sexual and physical abusers.^[3] A further disconnect was perpetuated by arranged marriages for girls upon finishing their ‘education.’^[4] The policies of Residential Schools, the Sixties Scoop, and the current disproportionality of Indigenous children in care have created, and continue to create, an intergenerational trauma within Indigenous families. These policies have severed ‘knowledge-sharing between parents and children and have ‘adversely affected parenting skills and the success of many Aboriginal families.’ ^[5]

 

Today, Canada’s child-welfare system is often criticized for simply ‘continuing the assimilation that the residential school system started.”^[6] This includes statements from the United Nations Committee on the Rights of the Child, who in 2012 expressed concern about the “frequent removal of children in Canada from families as a ‘first resort’ in cases of neglect, financial hardship, or disability.”^[7]

 

Call five follows research that has concluded that “the provision of family supports and prevention services might be a better response to concerns than the removal of the child.”^[8] The goal of parenting programs are to provide educational opportunities for guardians to develop parenting skills which may have been systematically displaced by government policies.

 

Parenting programs should be flexible to permit communities to determine how they want to improve health and well-being for their members. Culturally-sensitive parenting education is necessary for parents to develop child-raising skills that reflect the values in their community. While one small piece in a much larger puzzle, culturally appropriate parenting programs may result in fewer children being placed in care. Tomorrow we will look at how parenting programs have been implemented thus far.

 

Thank you for reading,

 

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) at 144 [TRC].

²Ibid, at 4.

³ Union of Ontario Indians, An Overview of the Indian Residential School System, (2013) online: <www.anishinabek.ca/wp-content/uploads/2016/07/An-Overview-of-the-IRS-System-Booklet.pdf>.

⁴ TRC, supra note 1 at 4.

⁵ Ibid, at 138.

⁶ Ibid.

⁷Ibid.

⁸Ibid.