University of Alberta Faculty of Law Blog

TRC Call to Action #60: Aboriginal Beliefs and Spirituality and the Whiteman’s Gospel

We call upon leaders of the church parties to the Settlement Agreement and all other faiths, in collaboration with Indigenous spiritual leaders, Survivors, schools of theology, seminaries, and other religious training centres, to develop and teach curriculum for all student clergy, and all clergy and staff who work in Aboriginal communities, on the need to respect Indigenous spirituality in its own right, the history and legacy of residential schools and the roles of the church parties in that system, the history and legacy of religious conflict in Aboriginal families and communities, and the responsibility that churches have to mitigate such conflicts and prevent spiritual violence.

In plain simple terms Call to Action #60 is a call to train individuals in religious cultural safety, so that people of different faiths may understand each other better.^[1] This Call to Action aims to ensure churches and those Christian groups that were involved in the residential school system make a conscious and organized effort to educate their organizations on the harms of what those schools did and take an active role in respecting Aboriginal communities and their members' individual rights to practice spirituality according to the teachings of their ancestors.

Canada is a religiously pluralistic country because of its diverse population. This requires Canadians to act with tolerance and respect, including learning about each other’s faiths and beliefs, and accepting that differences can coexist. These actions can minimize or eliminate the divisiveness, hostility and prejudice seen throughout Canadian history towards Indigenous beliefs and practices associated with their spirituality.^[2]

There is a great responsibility of the church parties to mitigate the harms they caused to Indigenous peoples, and addressing these harms requires more than apologies. Our December 2, 2020 post on the Calls to Action #48 and 49 outlining the church parties apologies can be found here: https://ualbertalaw.typepad.com/faculty/2020/12/re-trc-call-to-action-48-49-settlement-agreement-parties-and-undrip.html

It is worth noting that although Pope Benedict expressed his sorrow for those who suffered at the Residential Schools, the Catholic Church has yet to issue a formal apology. This is shameful when considering that the Catholic Church ran 70% of the forced Indian Residential Schooling in Canada.^[3]   

Acknowledgements and apologies are an important first step, yet without action, they are empty words and empty promises of reconciliation. The spiritual harm and abuse that First Nations, Metis, and Inuit experienced during the era of colonial expansion require extensive education to understand the spiritual relationship with the Creator and with the Land that Indigenous peoples have. This education should include actively unlearning harmful views that place Indigenous ceremonies and practices as sinful in the eyes of God as referred to in the Anglican Church’s “Apology for Spiritual Harm”.  This apology was an excellent example of a church taking ownership.^[4] 

The arrogance of many churches resulted in grievous harm and the great loss of ceremonies and spiritual teachings that have sustained the First Peoples for generations upon generations. The intergenerational spiritual trauma created by the arrogance of many churches may begin to heal by furthering cultural education to church clergy, members, and leaders that identifies the importance of Aboriginal practices and ceremony.

Call to Action #60 is a very difficult recommendation to universally implement in Canada. It took Canada’s Supreme Court until 2017 with the Ktunaxa Nation v. British Columbia ^[5] case to issue a ruling on Indigenous religious freedom which in the end only ended up showing that the Supreme Court is unable to recognize its own colonial and culturally located position under the Charter.^[6]

There is no clear way to make it mandatory for a church organization to develop a curriculum of cultural education that would not violate their s. 2(a) Charter rights. This provision of the Charter works against Aboriginal Peoples in two ways, as previously mentioned and because protection under it requires claimants “to frame their religion in terms that are recognizable to the legal culture of Canada without reference to the colonial foundations of that very legal system or the broader colonial context of Canada”.^[7] Essentially indicating that Indigenous religious freedom, under s. 2(a), is currently an impossibility and poses a significant barrier.  

From a policy perspective, this is a very difficult recommendation for the government to implement that would be effective, it would need to work with Indigenous communities and organizations cohesively to do so and make significant changes in government policy. Moving forward, it remains up to each religious group to play its own part in working towards reconciliation through cultural education and it will be interesting to see who takes this seriously. ^[8]

Until Next Time,

Team ReconcilAction YEG

[1] Acadia University, “TRCtalk” online: <http://courseware.acadiau.ca/trctalk/category/calls/>. 

[2] Benna Crawford, “The Advantages of Religious Diversity” (29 Sept 2017), online: Classroom <classroom.synonym.com/the-advantages-of-religious-diversity-12087077.html>.

[3] CAID.ca, “Church Apologies for Indian Residential Schools”, online: <caid.ca/Dchurch_apology.html>. 

[4] Archbishop Fred Hiltz, “An Apology for Spiritual Harm” (July 12, 2019) online: <anglican.ca/news/an-apology-for-spiritual-harm/30024511/>.

[5] https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16816/index.do 

[6] Nicolas Shrubsole, Policy Options, “The Impossibility of Religious Freedom”, 2017 online: The impossibility of Indigenous religious freedom (irpp.org) 

[7] Ibid

[8] TRCtalk, supra note 1, Call to Action #60. 

\

Professional Development and Training for Public Servants

Tansi Nîtôtemtik,

Today Team ReconciliAction will be evaluating Call to Action #57, which calls for professional development and training for public servants.

57. We call upon federal, provincial, territorial, and municipal governments to provide education to public servants on the history of Aboriginal peoples, including the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.^[1]

Public servants are employees of the government. In reality, public servants carried out their government-mandated duties to facilitate residential schools and other historical injustices committed against Indigenous peoples. So, it is important for public servants to have an understanding of the historical implications of their role, and to receive training that instills sensitivity and respect for Indigenous peoples. Done properly, Call to Action #57 has the ability to “heighten our historical consciousness of colonialism, recognize the pain it inflicts, amend for its wrongs, and catalyze positive transformation.” ^[2]

So far, the Government of Canada has created an optional education program for employees in the Federal public service, titled the “Indigenous Learning Series” through the Canada School of Public Service.^[3] The course is described as focusing on the “rights, perspectives, cultures, history and heritage of First Nations, Inuit and Métis in Canada and their relationship with the Crown.” ^[4]Other actions taken by the Federal government include:

• The creation of online content through the online learning portal for government employees ^[5] 
• Launching three classroom courses for public servants;^[6] and 
• Establishing a Circle of Elders and Elders in Residence initiative to support the development of education for public servants. ^[7] 

(One example of a classroom course for public servants is the KAIROS blanket exercise which teaches participants about the Colonization of Turtle Island. Image credit, KAIROS.org https://www.kairosblanketexercise.org/2018/02/26/reflecting-on-the-blanket-exercise/)

On a provincial level, governments have responded to Call to Action #57 differently. In Alberta, a mandatory education program on Indigenous history and issues was approved for public servants in 2018 by then Premier Rachel Notley, which now exists as an introductory training program for public servants. ^[8] On a municipal level, only some cities have developed similar programs, including Winnipeg and Brandon, Manitoba. ^[9]

So far, the progress made on this Call to Action is promising. However, the momentum needs to continue, and these courses should be mandatory to ensure that all public servants get a uniform experience. All levels of government need to consider whether they have developed education programs in response to Call to Action #57, and if not, programs should be implemented. Due to the piecemeal approach taken so far, ReconciliAction is assigning a grade of B- on this Call to Action.

Thanks for reading! Let us know your thoughts on our evaluation in the comments below.

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.

²Mark Weiler (2017). Public servant schools in Canada: A concept for reconciliation. The Canadian Journal for the Study of Adult Education, 29(2), 1-20 at 4-5.

3Government of Canada, “Professional development and training for public servants” (Sept 5, 2019), online: <www.rcaanc-cirnac.gc.ca/eng/1524504124015/1557514077713>.

⁴Ibid.

⁵Ibid.

⁶Ibid.

⁷Ibid.

⁸Government of Alberta, “Indigenous Learning Initiative”, (2021) online:<www.alberta.ca/indigenous-learning-initiative.aspx#toc-0>.

⁹Rights Watch Blog (Canadian Civil Liberties Association and Pro Bono Students Canada), “TRC Call to Action #57 slated to be implemented Spring 2018”, online: <rightswatch.ca/2018/02/02/trc-call-to-action-57-slated-to-be-implemented-spring-2018/>.

Feature on Action & Justice Everyday: The Individual duty of Reconciliation

Tansi Nîtôtemtik,

Yes, we've said our goodbyes for the year and wrapped things up for the term.  As it turns out, it is hard to stay away when there is so much happening every day and we have been given this opportunity to use our voice.  

Today we want to highlight another blog that we feel brings an important personal context to the social and legal issues faced by Indigenous people in Canada. 

On his blog, Action & Justice Everyday, Community Organizer & Public Speaker, Michael Redhead Champagne recently asked the following question: Which Calls to Action/Calls for Justice do you work on every day?

Most of the focus on the ReconciliAction YEG blog has been geared toward the systems where the injustices against Indigenous people originated and continue to be perpetuated.  Reconciliation, to our team, is the duty that these systems have to right these historic wrongs and take active steps that will improve nation-to-nation relations and eliminate the ongoing systemic discrimination.  Champagne's post brings attention to the fact that reconciliation isn't just about systemic level oppression and action, but about efforts made at the individual level as well.  

The post first draws attention to the TRC Calls to Action released 5 years ago, the Report of the Inquiry on MMIWG Calls to Justice released in 2018, and the UN Declaration on the Rights of Indigenous people, before highlighting just a small sampling of recent events that illustrate how much work is still to be done. 

Champagne encourages non-Indigenous Canadians who want to further reconciliation to take some of the duty of reconciliation upon themselves.  He provides the following simple framework to do this: 

1. Read the MMIWG and TRC reports.

   • Bonus if you include additional reports like UNDRIP, or regional documents too

2. Select at least one Call to Action (TRC) and one Call for Justice (MMIWG)

3. Write them down and put them somewhere that you will see them everyday

   • we have to face this every day, join us in our pain so we can celebrate our victories and our healing together

4. Take action at every available opportunity yourself

5. Encourage your family, friends, co-workers, workplaces and communities to do the same

Team ReconciliAction couldn't agree more that these reports (even just the summaries) are so important for Canadians to read. Plus, with 94 Calls to Action and 231 Calls for Justice, there is surely a Call that can speak to everyone on an individual level. 

You can read the full Action & Justice Everyday post here: 

https://www.michaelredheadchampagne.com/blog/action-justice-everyday

The MMIWG Report and Calls for Justice can be found here: 

https://www.mmiwg-ffada.ca/final-report/

The TRC Summary and Calls to Action can be found here:

http://nctr.ca/reports.php

Let us know which Call to Action or Call for Justice you plan to work on every day in the comments below!

Until next time, 

Team ReconciliAction

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5 Years After TRC: Midpoint Recap

Tansi Nîtôtemtik,

As Team ReconciliAction gets ready to sign off for the semester, we wanted to take today to provide a report card for the TRC Calls to Action we have covered so far this year.  Check back tomorrow for our reflections on this term.  

So how is Canada doing on Calls to Action numbers 1 through 49?  Check out our infographic below, and let us know if you agree with our evaluation so far of Canada's response to the TRC to far. 

 

That's it for substantive material for this semester. We hope you've enjoyed reading, and be sure to check back tomorrow so we can say goodbye until 2021!

Until next time, 

Team ReconciliAction YEG

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Join the conversation by following us on social media

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Establishing Indigenous Law Institutes

Tansi Nîtôtemtik,

Today we move on to the TRC Calls to Action on Equity for Aboriginal People in the Legal System. The first of these Calls to Action is:

50. In keeping with the United Nations Declaration on the Rights of Indigenous Peoples, we call upon the federal government, in collaboration with Aboriginal organizations, to fund the establishment of Indigenous law institutes for the development, use, and understanding of Indigenous laws and access to justice in accordance with the unique cultures of Aboriginal peoples in Canada.^[1]

We have discussed the United Nations Declaration on the Rights of Indigenous Peoples, (“UNDRIP”) in our previous posts titled "TRC 5 Years Later: United Nations Declaration on the Rights of Indigenous Peoples” and "Indigenous Bar Conference Day 2/ Indigenous Rights at the forefront of Crisis in Canada - Honorable Jody Wilson-Raybould”. In Article 5 and 18, UNDRIP affirms the rights of Indigenous peoples to exercise jurisdiction over  their own laws and legal institutions. Article 5 acknowledges the right of Indigenous peoples to “maintain and strengthen their distinct political, legal, economic, social and cultural institutions”^[2] and Article 18 affirms the rights of Indigenous decision-making institutions. 

(Photo credit: Onondaga Nation, The Haudenosenee see the two-row wampum as a living treaty that represent the two ways of life between the Dutch settlers and Haudenosenee)

Indigenous peoples of Canada are diverse and have distinct legal orders and systems which have been used to maintain just and equitable societies since long before the colonization of their lands. These legal orders and systems carry distinct laws and understandings  of the same legal concepts that are fundamental to the governing Colonial law, such as those pertaining to property, evidence, and justice itself.^[3] 

Despite these distinctions, as Indigenous legal scholar Val Napoleon notes, “Indigenous law is concerned with the same human concerns as Canadian law including community safety, fairness, and accountability.”^[4] TRC Call to Action #50 emphasizes  the importance of creating a framework that promotes the use and development of Indigenous laws.

The Government of Canada proposed an investment of $10 million over five years towards Indigenous law initiatives through the Justice Partnership and Innovation Program in the 2019 budget, with a stated goal of improving “equality for Indigenous Peoples in Canada’s legal system.” ^[5]The call for proposals has now expired, and funding began in April 2020. 

Indigenous law institutes have emerged in response to Call to Action #50, and have taken on important access to justice work towards researching, developing and the codification of Indigenous law and access to justice. The Wahkohtowin Law and Governance Lodge at University of Alberta is one example of this emerging field of law, and has done important work to educate communities, carry out research and community engagement on resource needs, and produce governance resources.^[6] Another example is The University of Victoria which is in the process of establishing a National Indigenous Law Centre,^[7] that will exist in conjunction with its current Indigenous Law Research Unit. Both Wahkohtowin and the Indigenous Law Centre are funded, in part, by Government grants.^[8]

(Photo Credit: Wahohtowin Law & Governance Lodge)

The progress towards Call to Action #50 is promising. However, these institutions will require long-term funding commitments that prioritize the role of Indigenous law in the legal landscape of Canada. Only time will tell if these important institutions continue to be a priority for the colonial government. 

Until next time,

Team ReconciliAction YEG

¹Truth 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].

²United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR, 61st Sess,UN Doc A/61/295 (2007), art 5 [UNDRIP].

³University of Toronto Libraries, “Indigenous legal traditions” (2018) online: <exhibits.library.utoronto.ca/exhibits/show/canadianlawandidentity/cdnlegalsystemhistory/cdnlegalsystemsindig#>.

⁴Val Napoleon, “What is Indigenous Law? A Small Discussion” (2016) online: accessed via Wahkohtowin Law and Governance Lodge page <www.ualberta.ca/wahkohtowin/research.html?1=IndigenousLaw>.

⁵Department of Justice, “Justice Partnership and Innovation Program “(4 Nov 2019) online: <www.justice.gc.ca/eng/fund-fina/jsp-sjp/pfo-pfc.html>.

⁶Wahkohtowin Law and Governance Lodge, “About” (2020) online: <www.ualberta.ca/wahkohtowin/index.html>.

⁷ CBC News, "University of Victoria to House national Indigneous Law Center" (3 Sep 2020) online:<www.cbc.ca/news/canada/british-columbia/uvic-national-indigenous-law-centre-announcement-1.5711550>.

⁸See Government of Canada, “Equity for Aboriginal people in the justice system” (5 Sep 2019) online: Delivering on Truth and Reconciliation Commission Calls to Action <https://www.rcaanc-cirnac.gc.ca/eng/1524503744418/1557511885830>. (“For example, through the Justice Partnership and Innovation Program, $134,127 has been provided to the University of Alberta for the development of the new Wahkohtowin Law and Governance Lodge, as announced by the Minister of Justice and Attorney General of Canada on August 14, 2019.”)

 

Is it Reconciliation? New funding announced for Indigenous child welfare

(Image Credit: THE CANADIAN PRESS/Adrian Wyld)

Tansi Nîtôtemtik,

Indigenous child welfare has been a recurring topic on this blog as one of the areas of colonial law that most negatively impacts Indigenous people. For those of you reading for the first time, or just wishing to do a deep dive, links to our previous posts on Indigenous child welfare have been included at the end of today’s post.   

To quickly recap, the Act respecting First Nations, Inuit and Métis children, youth and families ( the “Act”) came into force this year.  You may have heard the Act referred to as Bill C-92 as it was known prior to its enactment. With more Indigenous children in care now than at the height of residential schools, this law was a groundbreaking step forward.^[1] It finally acknowledges the right of Indigenous groups to exercise jurisdiction over child welfare laws and operations.

A big criticism of this Act is the glaring omission of any funding provision to support the development of Indigenous-run child welfare systems.  This is a surprising omission given the TRC’s call for adequate and sustainable funding, as well as the Canadian Human Rights Tribunal’s repeated finding of systemic discrimination against Indigenous children through inequitable funding as compared to all other children in Canada.

New funding announced

On November 27^th, Prime Minister Trudeau announced $542 million in new funding for Indigenous child welfare.^[2]  This funding is intended to propel the co-implementation of the Act with Indigenous governing bodies, and assist in building capacity to establish Indigenous-run child welfare systems.^[3]  The news release indicates that this funding is in addition to $3 billion already invested in funding support since 2019, however we have not found any publicly announced funding totalling $3 billion.^[4] The proposals related to Indigenous child welfare in the 2019 budget included:

•       $1.2 billion over three years, beginning in 2019–20 to provide access to services for First Nation children.
•       $220 million over five years, beginning in 2019–20, to provide services to Inuit children as work continues with Inuit and other government partners to improve local capacity to deliver services.^[5]

Obviously this $542 million is welcome news, especially since it appears to be new funding (as opposed to re-allocated funding).  However, as with all funding, ascertaining the benefits conferred requires understanding who and what is eligible, and how to access that money. 

Breakdown of the new funding

The federal government’s commitment will provide $542 million in funding over five years, broken down as follows:

• $425 million over five years for capacity-building funding for Indigenous jurisdictions.
• Nearly $73 million over five years for coordination agreement discussions.
• Over $35 million for internal services.
• Nearly $10 million over two years for governance engagement mechanisms.^[6]

The Assembly of First Nations (AFN) has projected a funding requirement of $3.5 billion over 5 years in order for First Nations to effectively assume jurisdiction and operations of child welfare services.^[7] This funding estimate does not take into account the funding requirements of Inuit and Métis communities. Existing funding to Indigenous governing bodies, as we have repeatedly highlighted on this blog, is chronically deficient and could not support the transition.

What do we think?

Our first concern with funding for improved Indigenous delivered services, is that an organization must first be provincially delegated in order to receive funding.^[8]  The concept of self governing bodies being required to seek permission from the colonial government is odd, but nevertheless common in funding models.

Our second concern is the funding amount.  If Prime Minister Trudeau’s representation of an existing $3 billion in funding is correct, then this new funding adds enough to meet the AFN projected funding requirement, though again, this does not factor in funding needs of Inuit and Métis governing bodies. The actual funding amount allocated is difficult to ascertain as Canada has not released an official budget in the past two years, so we are forced to accept these announcements at face value for now.

The third concern Team ReconciliAction has with this funding announcement, is that there is no mechanism for distribution of the funds.  The AFN entered into a protocol agreement earlier this year that included bi-lateral meetings and a joint finance table. However Inuit and Métis governing bodies have not yet made any such agreement.^[9]  There are also many First Nations that are not represented by AFN, who would require funding for the implementation of the Act.  This highlights an ongoing problem with the way that Canada provides pan-Indigenous funding. Canada ignores the known fact that these are distinct nations with distinct laws and distinct needs, and uses distribution models that create conflict between Indigenous groups who are then forced to fight for the funds they require.

Overall, it is a positive that there is funding for the implementation of this Act, though it remains disappointing that it was omitted from the legislation.  Indigenous people are tired of being told to wait for things that Canada stripped away over 150 years ago, but the roll-out of this funding is just another “wait-and-see” at this time.

Links to previous posts on Indigenous Child Welfare

Part I: Sixties Scoop

Intergenerational Injustice & Indigenous Child Welfare

Ohpikihawasowin (the raising of children)

Moving Forward and Looking Back: Indigenous Children

In the Media: Spirit Bear Teddy Bear Tea Party & Book Launch

ILSA Speaker Series: Panel Discussion and the Aboriginal Justice Award

Systemic Barriers and Indigenous Children: Bill C-92

Systemic Barriers and Indigenous Children: Bill 22

Influential Indigenous Women: Dr. Cindy Blackstock

In the Media: The Canadian Human Rights Tribunal Orders Compensation for First Nations Children

The Role of the Indigenous Community in Child Development

Indigenous Mothering and the Impacts of the Child Welfare System

Misconceptions of 'Bad Parenting' and the Impacts on Child Apprehension

In the Media: Dr. Cindy Blackstock & Dr. Hadley Friedland on Bill C-92

"Decolonization" and Why it Matters in the Context of Child Welfare

De-colonizing Racine v Woods

An Overview of Bill C-92

An Overview of Bill 22

5 Years After TRC: Reducing Children in Care

5 Years After TRC: Reducing Children in Care Part 2

5 Years After TRC: A National Standard

5 Years after TRC: A National Standard (Part 2)

 

Maarsii to everyone who participated in our polls on social media telling us to write this post, stay tuned tomorrow for more TRC response evaluations!

Until Next Time, 

Team ReconciliAction

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¹ Olivia Stefanovich & John Paul Tasker, “Ottawa, AFN pen agreement to map out funding for First Nations child welfare overhaul”, (7 July 2020), online: CBC News <https://www.cbc.ca/news/politics/indigenous-child-welfare-c92-funding-1.5639885>.

² “More support to advance reform of services for Indigenous children and families”, (27 November 2020), online: Prime Minister of Canada <https://pm.gc.ca/en/news/news-releases/2020/11/27/more-support-advance-reform-services-indigenous-children-and-families>.

³ Ibid.

⁴ Ibid.

⁵ Department of Finance Government of Canada, “Budget 2019: Chapter 3”, (19 March 2019), online: <https://www.budget.gc.ca/2019/docs/plan/chap-03-en.html#Chapter-3---Advancing-Reconciliation>.

⁶ supra note 2.

⁷ Jorge Barrera & 2019, “First Nations need billions in funding to take over child welfare services, says AFN regional chief”, (3 December 2019), online: CBC News <https://www.cbc.ca/news/indigenous/afn-special-chiefs-assembly-1.5381566>.

⁸ Government of Canada; Indigenous and Northern Affairs Canada; Communications Branch, “First Nations Child and Family Services”, (3 November 2008), online: <https://www.sac-isc.gc.ca/eng/1100100035204/1533307858805>.

⁹ Indigenous Services Canada, “The Assembly Of First Nations and Canada Sign a Historic Protocol Agreement to Advance the Transfer Of Child And Family Services To First Nations”, (7 July 2020), online: gcnws <https://www.canada.ca/en/indigenous-services-canada/news/2020/07/the-assembly-of-first-nations-and-canada-sign-a-historic-protocol-agreement-to-advance-the-transfer-of-child-and-family-services-to-first-nations.html>.

5 Years After TRC: Excluded from the Residential School Settlement

(Image: iStock Photo)

 

Tansi Nîtôtemtik,

 

A Record-Breaking Settlement

The Indian Residential Schools Settlement Agreement (IRSSA) resulted in the largest settlement to date in Canadian history.^[1] It included unique non-financial measures including the creation of the Truth and Reconciliation Commission which developed the Calls to Action we are evaluating, a fund for commemoration projects to memorialize the impact of residential schools, and a fund to provide mental health supports to all plaintiffs included in the settlement.^[2]  

 

Individual plaintiffs were eligible for payment through the Common Experience fund, which would pay eligible survivors a set amount based on the duration of residence in a residential school.  In addition to the Common Experience Payment (CEP), survivors who experienced physical or sexual abuse were also eligible for the Independent Assessment Process (IAP).^[3]  IAP was an adjudicative process that offered additional reparations on top of the common experience  
payment, and involved the survivor recounting the abuses that occurred.

This process was not without issue.  The large fund combined with an allowance in the agreement for counsel to charge
up to 15% of the settlement attracted lawyers from all walks, including those who had little training or experience with
trauma-informed work (as should have been required here).  Charging 15% of the settlement payout was meant to be reserved for the most complex of settlements, yet several lawyers took advantage of vulnerable claimants and routinely charged this.^[4] Many survivors who sought acknowledgment and apology over financial compensation were re-traumatized by the incredible detail required during IAP or accepted smaller payouts because they were simply unable to share their trauma in that room.^[5]  

 

Many survivors not eligible to make a claim

The harms of these schools remain significant, but did you know that many survivors of residential schools were excluded entirely from the settlement, as well as the 2008 apology from the Prime Minister? 

 

The settlement agreement did not include; 

• Day school survivors, and those who attended residential schools during daytime hours,
• Métis who attended Métis residential or boarding schools, 
• those who attended schools in Newfoundland and Labrador, and 
• those who attended schools that were otherwise not considered to be under federal jurisdiction.^[6]  

 

Any school not found to be a residential school under some level of federal responsibility was excluded from the settlement.^[7] 

 

Of course all of these schools operated within the policy set out by the Indian Act and its mandate to deal with the “Indian Problem” by “killing the Indian within the child”.^[8] Whether or not the federal government funded or oversaw the operation of these schools, their fundamental purpose was guided by federal law and policy. 

 

Many Class Action Suits 

These exclusions led to a number of new class action lawsuits by affected survivors who had been excluded. 

 

• The Indian Day School Settlement Agreement has been approved for up to $1.4 billion for Day School survivors, but this settlement still excludes survivors who did not attend a federally operated day school.^[9]  
• A proposed settlement of $50 million was approved in 2016 for survivors of Newfoundland and Labrador schools, based on a breach of fiduciary duty by Canada.^[10] This may set a precedent for future claims that involve schools not previously found to be federal jurisdiction.  
• A memorandum of understanding has been entered into by Canada and the Métis students who attended the Île-à-la-Crosse mission boarding school in Saskatchewan, but Métis students who attended Timber Bay Residential School are working to appeal their class action certification after it was dismissed by a Saskatchewan judge.^[11] 
• There is yet another class action by Day Scholars, or students who attended federally operated residential schools but returned home at night.  In this case, negotiations have broken down and the action proceeds to trial in 2021.^[12]

Canada’s response to Call to Action #29

Call to Action #29 calls upon Canada to work collaboratively with survivors who were not included in the initial settlement. Team ReconciliAction gives Canada a grade of ‘D’ on this call.

 

 

The harms caused by residential and day schools are broad reaching, and a common experience for students who attended any school that followed the assimilation policies of the Indian Act, regardless of federal jurisdiction.  Forcing survivors to fight for piecemeal reparations for these broad reaching common harms is not reconciliatory.  Team ReconciliAction is uncertain if Canada is merely waiting for more survivors to pass away or if the government legitimately believes it should not take responsibility for the consequences of its policies. Either way, the reconciliatory approach requires Canada to initiate negotiations will all affected survivors, and to negotiate with repairing the harms as the forefront objective.

 

Do you think Canada deserves a ‘D’, even after some of the largest settlement payouts in history? Let us know in the comments.

 

Until Next Time, 

Team ReconciliAction

 

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¹ Tabitha Marshall, “Indian Residential Schools Settlement Agreement”, (11 July 2013), online: The Canadian Encyclopedia <https://www.thecanadianencyclopedia.ca/en/article/indian-residential-schools-settlement-agreement>.

² 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 130.

³ Ibid at 169.

⁴ See for example Bird v Blott, 2019 ABQB 764, a recently certified class action suit in which a Calgary lawyer is alleged to have earned $21 million on approximately 5600 mishandled IRS claims.

⁵ Sarah Petz, “Settlement process retraumatizes some residential school survivors, report says”, CBC News (20 February 2020), online: <https://www.cbc.ca/news/canada/manitoba/residential-school-survivors-settlement-report-1.5470001>.

⁶ Truth and Reconciliation Commission of Canada, supra note 2 at 170.

⁷ Indian Residential Schools Settlement Agreement, (8 May 2006), online <http://www.residentialschoolsettlement.ca/settlement.html> at 63.

⁸ Truth and Reconciliation Commission of Canada, supra note 2 at 130.

⁹ McLean v Canada, 2019 FC 1075 [McLean v Canada].

¹⁰ Anderson v Canada (Attorney General), 2016 NLTD(G) 179 [Anderson v. Canada (Attorney General)].

¹¹ Priscilla Wolf, “Canada says it will address wrongs against Metis students who were forced into Saskatchewan residential school”, (22 July 2019), online: APTN News <https://www.aptnnews.ca/national-news/canada-says-it-will-address-wrongs-against-metis-students-who-were-forced-into-saskatchewan-residential-school/>; “Metis Residential Schools Class Action | Merchant Law Group LLP”, online: <https://www.merchantlaw.com/class-actions/current-class-actions/metis-residential-schools-class-action/>.

¹² “Day Scholar Update, February 2020”, online: Justice for Day Scholars <http://www.justicefordayscholars.com/update/day-scholar-update-february-2020/> note: Day Scholars attended the residential schools during the day but returned home at night, whereas day schools that qualify for the approved day school settlement were ONLY day schools.

Truth without Reconciliation: Canada's Role in more than a Century of 'Unfairness' in Indigenous Health

(Artwork: 'Land out of Sight' by Lisa Boivin)

 

Tansi Nîtôtemtik,

 

Yesterday we discussed the informational gap in data collection that leaves us with an incomplete picture of health outcomes among Indigenous people.^[1]  However, even the incomplete data clearly shows worse outcomes in health indicators for Indigenous people when compared with non-Indigenous people.  The Truth and Reconciliation Commission compiled the following data regarding this gap as published in the Summary of the final report:

 

• Infant mortality rates for First Nations and Inuit children range from 1.7 to over 4 times the non-Aboriginal rate. 
• Between 2004 and 2008, the “age-specific mortality rate” at ages one to nineteen in the Inuit homelands was 5.3 times the rate in the rest of Canada.
• First Nations people aged forty-five and older have nearly twice the rate of diabetes as the non-Aboriginal population.
• First Nations people are six times more likely than the general population to suffer alcohol-related deaths, and more than three times more likely to suffer drug-induced deaths.
• The overall suicide rate among First Nation communities is about twice that of the total Canadian population. 
• For Inuit, the suicide rate is six to eleven times the rate for the general population. 
• Indigenous youth between the ages of ten and twenty-nine who are living on reserves are five to six times more likely to die by suicide than non-Aboriginal youth.^[2]

 

Today we will show how these worsened outcomes are a direct result of colonization and government policy in Canada. We will then evaluate progress on TRC Call to Action #18 which calls for acknowledgment of this causation and recognition and implementation of Indigenous healthcare rights as identified under international law, constitutional law, and Treaty.^[3]

 

Colonial Roots

(Image Credit: Stephanie McConkey, The Indigenous Determinants of Health as Predictors for Diabetes and Unmet Health Needs Among Urban Indigenous People:  A Respondent-Driven Sampling Study in Toronto, Ontario The University of Western Ontario, 2018) [unpublished], fig 1.) 

 

Well over 100 years ago Indigenous people faced a period of starvation. During that time, rations were withheld as a tactic to force Indigenous people to give up the lands originally selected as reserve lands. Often, these actions forced the relocation of Indigenous people to agriculturally unproductive lands.^[4] The driving of Indigenous communities from fertile land meant that, as the TRC states, “reserve housing was poor and crowded, sanitation was inadequate, and access to clean water was limited.”^[5]   During the same period, children were being whisked away to poorly constructed residential schools that were understaffed and undersupplied with food, clothing, sanitation, and medical supplies, and other necessities.^[6] 

 

The result was the en masse death of Indigenous people from tuberculosis. Those not killed by this lung disease were often severely weakened and likely to succumb to measles, smallpox, and other infectious diseases.^[7] Despite the high death rates in the schools and Indigenous communities, health resources and hospital care was restricted in 1937 “to those required for the safety of limb, life or essential function.”^[8]  Policies that ignored the health of Indigenous people through multiple generations have had a lasting impact on the health of Indigenous people. Some survivors still suffer from untreated physical ailments from residential schools or an inability to access medical care. The impact of intergenerational trauma on health is also apparent in the high rates of substance-related death and suicide.

 

Contemporary Indigenous Health

(Image Credit: THE CANADIAN PRESS/Paul Chiasson)

 

Let us fast forward to today. First Nations and Inuit households are three and four times as likely to live in an overcrowded dwelling and/or one in need of major repairs.^[9] There are also several communities living under long-term boil water advisories or who do not have access to running water and indoor toilets, including the Neskantaga First Nation who recently had to evacuate due to water access being cut off.^[10]  The current conditions sound pretty similar to 100 years ago when “reserve housing was poor and crowded, sanitation was inadequate, and access to clean water was limited”, doesn’t it?^[11]  In the words of Spirit Bear, Bearister with First Nations Child & Family Caring Society, Canada has not yet “fixed the unfairness” that created and continues to perpetuate these health indicators.^[12]

 

While Canada has formally acknowledged the health care gap to be a result of colonial policy and has allocated additional funding for healthcare improvements, we are not seeing the change.^[13]  Indigenous patients, not the system, continue to bear the brunt of the blame for having poorer health outcomes.  We have seen horrifying instances of healthcare failures in the deaths of Joyce Echaquan, Elder Hugh Papik, Brian Sinclair & Katie Ross; where people in need of healthcare for treatable illness or injury died after being accused or suspected of substance use on the basis of their Indigeneity.^[14]  We have seen provincial leaders flatly deny any problem of systemic racism that would impact healthcare for Indigenous people.^[15] Healthcare is a right protected by the constitution and by treaty.  However, Indigenous people are still being denied this basic right, and Canada continues to fail these people with a lack of formally implemented Indigenous healthcare rights.

 

Evaluation of Canada’s Response to Call to Action #18

On this basis, Team ReconciliAction is assigning a grade of ‘D’ to Canada on Call to Action #18.  

A formal acknowledgment and an increase to short term funding is the bare minimum for a passing grade. Truth is the first step in reconciliation. However, reconciliation here requires;  

• a formal Indigenous health rights framework that works to counter pervasive systemic racism in healthcare; 
• addressing the century-old housing and clean water crises that lead to poorer health; and  
• a commitment to long term and sustainable funding to ensure substantive equality in access to healthcare.

Canada has a duty to actively correct the ‘unfairness’ against Indigenous people created by colonialism and government policy.  Telling the truth about it is only the first step in meeting this Call to Action.

 

Thank you for reading today after a presumably long night of nail-biting over the US election non-results. Check back tomorrow for more on the TRC Calls pertaining to Indigenous health. 

Until Next Time,

Team ReconciliAction YEG

 

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¹ ReconciliAction YEG, “Improving Indigenous Health”, (3 November 2020), online: University of Alberta Faculty of Law Blog <https://ualbertalaw.typepad.com/faculty/2020/11/improving-indigenous-health.html>.

² 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 160.

³ Ibid.

⁴ Ibid at 94.

⁵ Ibid.

⁶ Ibid at 99.

⁷ Ibid at 94.

⁸ Ibid at 98.

⁹ Chantelle A M Richmond & Catherine Cook, “Creating conditions for Canadian aboriginal health equity: the promise of healthy public policy” (2016) 37:1 Public Health Reviews 2; see also Heather Tait, Aboriginal Peoples Survey, 2006: Inuit Health and Social Conditions, Catalogue no. 89-637-X, No. 001 (Ottawa: Statistics Canada, Social and Aboriginal Statistics Division, 2008).

¹⁰ Helen Fallding, “Disease factory Consequences of living without tap water and flush toilets”, Winnipeg Free Press (3 November 2010), online: <https://www.winnipegfreepress.com/no-running-water/health/disease-factory--consequences-of-living-without-tap-water-and-flush-toilets.html>; Jody 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.

¹¹ Truth and Reconciliation Commission of Canada, supra note 2 at 94.

¹² Spirit Bear, Spirit Bear’s Guide to the Truth and Reconciliation Commission of Canada Calls to Action (Ottawa: First Nations Child & Family Caring Society of Canada) at 3.

¹³ Government of Canada; Indigenous and Northern Affairs Canada, “Health”, (23 April 2018), online: Delivering on Truth and Reconciliation Calls to Action <https://www.rcaanc-cirnac.gc.ca/eng/1524499024614/1557512659251>.

¹⁴ ReconciliAction YEG, “Joyce Echaquan: Death by Racism”, (5 October 2020), online: University of Alberta Faculty of Law Blog <https://ualbertalaw.typepad.com/faculty/2020/10/joyce-echaquan-death-by-racism.html>.

¹⁵ 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/>.

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

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>. 

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).

“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).}

Orange Shirt Day: “Every Child Matters”

Today we honor those who attended Residential Schools throughout Canada and we acknowledge the truth of their experiences by commemorating and raising awareness of the Orange Shirt day movement which is on September 30th every year. ¹

Learning about the legacy of the Residential schools, its survivors and the memory of those children who did not survive, it felt important to understand and learn about the origins of how the Orange Shirt movement began. On Sept 25th, 2020, ReconciliAction YEG attended a live facebook event where Phyllis Webstad (co-founder of the Orange Shirt Day movement) told her story and gave us a glimpse into a past that has shaped our present and will most certainly influence our future. ²

Phyllis Webstad is a 3rd generation residential school survivor.  Her parents and grandparents both endured 10 years each of the stark and brutal living conditions at the St. Joseph's Mission Indian Residential School, located 20 minutes past Williams Lake, B.C. Phyllis spent a year at St. Joseph’s Mission from  1973-74, long enough to understand what she called, “pee your pants terror” and why her granny who raised her, was not ever able to show love and affection. Phyllis’s own son years later would sadly attend Gordon Residential School in Punnichy, Saskatchewan before its closure in 1996. It was the last federally funded residential school to close,³  making it four generations who attended residential school in her family.

Figure 1 Gordon Residential School, Pinnichy, Saskatchewan, ca 1946 ACC MSCC/S7-P75-103/ photo credit https://www2.uregina.ca/education/saskindianresidentialschools/gordons-indian-residential-school/

The Canadian government had made it mandatory for every First Nations child between 7 and 16 years of age to attend residential schools in April of 1920.⁴

At 6 years old Phyllis was old enough to attend residential school. Her granny, in preparation of that departure, took her on a rare trip into town to buy a new shirt for her first day at the “Mission”. What caught her eye was a “shiny orange shirt”, it was bright and made her excited. She wore it proudly to attend the residential school that she described as both “intimidating and scary”. Once she arrived at the school any feelings of excitement in seeing her cousins quickly dissipated when her hair was cut and she was made to strip out of her clothes. It was especially hard giving up her orange shirt, yet she had no choice, her feelings did not matter sadly no one’s did, and the shirt was never given back. Donning communal clothing, all ties to her identity and culture were ripped away like a cruel joke.

“Felt like grownups were playing a cruel joke on them” - Phyllis Webstad

At the “Mission”, there was no hugging, no touching (at least not in a good way), no looking at each other and family members of the opposite gender were never allowed to speak to one another. Everyone would cry quietly every night. Phyllis said when siblings were especially lonely they would go to what they referred to as “the invisible line” outside and walk up and down far enough away from each other so no one would notice because that was the only way they could visit.

She also talked about how granny always distanced herself from children as they got older, (all 10 of her children had attended residential schools).She would show love and affection to babies, but as soon as they reached 5, she grew more distant. Granny had been preparing them all for an environment where they did not matter. It was a place where she knew none of them would matter and where the phrase, “Every child matters” originated.⁵

If reconciliation first begins with telling the truth, then the next most meaningful thing we can do is listen to the stories from survivors and remember those who did not survive, because every child deserves to be remembered and every child matters.

Today please consider wearing an orange shirt to show your support. Thank you for reading.

Until next time ReconciliAction YEG

A word from the President of the Indigenous Law Students Association, University of Alberta: https://www.facebook.com/watch/?v=354798429098801  

 

[1] Orange Shirt Society, “September 30” online: Orange Shirt Day </www.orangeshirtday.org/>. [Orange Shirt Society]

[2] Medicine Wheel Education, “Thank you to everyone who joined us live for the Orange Shirt Day online classroom….” (16 September 2020) posted on Medicine Wheel Education, online: Facebook: <www.facebook.com/medicinewheeleducation/videos/1317463278595862>.

[3] University of Regina, “Gordon’s Indian Residential School” online: Shattering the Silence <www2.uregina.ca/education/saskindianresidentialschools/gordons-indian-residential-school/>. 

[4]The Canadian Encyclopedia, “Residential Schools” online: Timeline  <www.thecanadianencyclopedia.ca/en/timeline/residential-schools>.

[5] Orange Shirt Society, supra note 1, Phylis Story <www.orangeshirtday.org/phyllis-story.html>.

5 Years after TRC: A National Standard (Part 2)

(Image credit: Louise Brown, Toronto Star, "A study in First Nations 101" (June 20, 2006) online: canadiancrc.com/Newspaper_Articles/Tor_Star_First_Nations_101_20JUN06.aspx)

Tansi Nîtôtemtik, 

Today’s post continues our assessment of TRC Call to Action #4, specifically in relation to the following requirements of the national standard for Indigenous child welfare: 

    ii. Require all child-welfare agencies and courts to take the residential school legacy into account in their decision making. 

    iii. Establish, as an important priority, a requirement that placements of Aboriginal children into temporary and permanent care be culturally                               appropriate. 

The Residential School Legacy

While the last Residential School officially closed its doors in 1996,^[1] the legacy lives on. The number of Indigenous children in government care currently triples the number of those in residential schools at the height of their operation.^[2] 

Canada’s systemic removal of Indigenous children from their families, culture and communities through the Residential School system has resulted in generations of shared trauma, abuse and disconnection from culture. The impact of the Residential School system underlies a significant amount of child protection involvement.^[3] Therefore, it is unrealistic for child welfare agencies and courts not to take the Residential School legacy into consideration when making decisions regarding Indigenous children. 

The preamble of The Act Respecting First Nations, Inuit and Métis Children, Youth and Families^[4] recognizes TRC Call to Action #4 by recognizing the harm caused by Residential Schools. However, as noted in the Yellowhead Institute Paper, “an acknowledgment is not a commitment to do any particular thing.”^[5] A statutory requirement that child welfare agencies and courts consider the impact of Residential Schools is a governmental  commitment to healing that goes beyond the hollow recognition in the Act . 

Indian Child Welfare Act:^[6] The Gold Standard

The United States enacted the Indian Child Welfare Act (CWFA) in 1978, in response to overrepresentation of Indigenous children in the child welfare system. The CFWA is exemplary as it empowers Indigenous communities with inherent jurisdiction to resolve matters involving children in need of care.^[7] 

When determining the best course of action for an Indigenous child, the ICWA requires US courts to consider the following:

1. A genuine desire from the biological parents to place an Indigenous child in care.^[8]
2. Active efforts to keep the family together (e.g. rehabilitative programs) to be unsuccessful before any placement is ordered. ^[9]
3. A higher burden of proof to require placement/adoption.^[10]
4. A legislated order for placement to keep the child close to their family and community.^[11]

Placement of children in care

“...the significance of cultural background and heritage as opposed to bonding abates over time. The closer the bond that develops with the prospective adoptive parents the less important the racial element becomes.”^[12]

The above statement from the 1983 Supreme Court decision, Racine v Woods demonstrates the problematic thinking which led to the separation of generations of Indigenous families. In Woods, the Court ruled that it would be in the best interests of Leticia Racine, a seven-year-old girl, to stay with her non-Indigenous adoptive parents rather than with her Indigenous mother. 

Under the new legislation, Indigenous child placement is determined under a priority system with parents first, other family members, other community members, another Indigenous family, and finally, any other adult. However, there is a caveat--the priority system is only used to the extent that it is consistent with the best interests of the child.^[13] As jurisdiction is an area of ambiguity in the Act (see yesterday’s post for discussion), interpretation of BIOC in the context of Indigenous child welfare raises concerns.^[14] What standards will be used to determine BIOC? Can federal and provincial governments unilaterally override decisions about the best interests of Indigenous children? 

Quebec has challenged the Act on grounds of exclusive provincial jurisdiction over Indigenous child welfare matters.^[15] Other Canadian courts have begun to apply the principles of the Act. Generally, it appears that courts consider the federal nature of the Act as paramount to provincial legislation,^[16] However some courts have failed to consider the placement priority  in the Act if alternatives were not presented, perpetuating the removal of children from family and community.^[17] Although we are only eight months into the new legislation, some positive change seems to be coming from its application.

¹Union of Ontario Indians, An Overview of the Indian Residential School System, (2013) online (pdf):www.anishinabek.ca/wp-content/uploads/2016/07/An-Overview-of-the-IRS-System-Booklet.pdf at 2.

²Yellowhead Institute, An Act respecting First Nations, Inuit, and Métis Children, Youth and Families Does Bill C-92 Make the Grade? (March 21, 2019) online (pdf): yellowheadinstitute.org/wp-content/uploads/2019/03/does-bill-c-92-make-the-grade_-full-report.pdf at 5 [Yellowhead Institute Paper].

³Ardith Walkem, WRAPPING OUR WAYS AROUND THEM: Aboriginal Communities and the Child, Family and Community Service Act (CFCSA) Guidebook, (ShchEma-mee.tkt Project (Nlaka’pamux Nation Tribal Council): 2015), online (pdf): cwrp.ca/sites/default/files/publications/en/wowat_bc_cfcsa_1.pdf at 8.

⁴An Act Respecting First Nations, Inuit and Métis Children, Youth and Families, SC 2019, c 24, Preamble [The Act]. (“Whereas Parliament recognizes the legacy of residential schools and the harm, including intergenerational trauma, caused to Indigenous peoples by colonial policies and practices;”)

⁵Yellowhead Institute Paper, supra note 2 at 9.

⁶Indian Child Welfare Act, 25 USC §1901–1963 (1978) [ICWA].

⁷Sébastien Grammond, "Federal Legislation on Indigenous Child Welfare in Canada." Journal of Law and Social Policy 28:1. (2018): 132-151 at 141. https://digitalcommons.osgoode.yorku.ca/jlsp/vol28/iss1/7

⁸Ibid.

⁹Ibid.

¹⁰Ibid.

¹¹Ibid at 142.

¹²Racine v Woods, [1983] 2 SCR 173, 187-88.

¹³The Act, supra note 4 at 16(1).

¹⁴Yellowhead Institute Paper, supra note 2 at 17-18.

¹⁵See Jon Goud, “Quebec’s Misguided Challenge to Federal Indigenous Child Welfare Law” (Jan 23, 2020) blog: blogs.dal.ca/dlj/2020/01/23/quebecs-misguided-challenge-to-federal-indigenous-child-welfare-law/. (This appeal has been criticized as one that will simply delay much needed change in the child welfare system).

¹⁶See British Columbia (Child, Family and Community Service) v. S.H., 2020 BCPC 82 and Alberta (Child, Youth and Family Enhancement Act, Director) v K.C, 2020 ABPC 62.

¹⁷See Huron-Perth Children’s Aid Society v. A.C., 2020 ONCJ 251 (See paras 127-28, where the Court takes note of the parents' limited connection to their Metis culture in determining that the children should stay with a Metis foster family). 

Meet the 2020/21 Team: Sarah Kriekle

Tansi Nîtôtemtik, 

 

My name is Sarah Kriekle and I am a Co-Lead of this year’s ReconciliaAction YEG blog team along with Teresa Holmes. Throughout this week our posts will introduce our team and you will get to know Teresa and myself, along with Tamya Chowdhury, Anita Cardinal-Stewart, and Tyler Godard.  

 

I am a first-generation Albertan, first-generation law student, and the first in my family to attend post-secondary school.  Before law school, I worked in supply chain and planning for a manufacturing company while I completed my Bachelor of Commerce degree part time. Since starting law school I have developed a keen interest in Indigenous governance and legal orders, and am looking forward to incorporating the knowledge and skills I am learning now into my future practice. You can read a bit more about my law school experience here.

 

I live in Red Deer, Alberta, just north of the Red Deer River. This river used to be known as “Waskasoo Seepee” which translates to “Elk River” in Cree. Elk were originally misidentified as European red deer by early settlers, which is how the city and the river came to have its current name.^[1] The area of Red Deer in which I live later became part of Treaty 6 territory, the traditional lands of the Nahkawininiwak (Salteaux) & Nêhiyawak (Plains Cree), and a traditional gathering place for the Métis. 

 

My ancestry is a mix of Métis, Ukrainian, German, and Austrian. My family’s Canadian roots originated with the early French settlers and the Salteaux in the Red River area. They eventually migrated during the time of the Riel Rebellion to Lebret and Fort Qu’Appelle, SK, where they remained.  I have been lucky to find detailed stories about my family in various works by Métis historians Lawrence Barkwell and Dr. Heather Devine.  While learning about my ancestry, I have also uncovered more about my Ukrainian, German, and Austrian heritage. My maternal grandfather’s grandparents first came to Canada from Ukraine and settled in Manitoba, and my paternal great-grandparents came from Germany and Austria, and settled in Saskatchewan. 

 

To me, this blog represents an opportunity for me to dig deeper into the colonial fracturing of First Nations, Metis, and Inuit life, culture and legal orders, and the Calls to Action meant to begin Canada’s work repairing the damage.  I believe that we cannot reach a point of reconciliation without full acknowledgment of the harms created by colonialism, and ReconciliAction YEG provides an accessible platform to bring the discussion to a broad community. 

 

Our team welcomes and encourages any feedback or questions from our readers, and we are all looking forward to the upcoming year with the blog. Tune in to meet Tamya tomorrow!

Until next time, Sarah Kriekle

¹  Tyler Dixon, “Get Me Outdoors: Fort Normandeau”, (7 August 2017), online: Get Me Outdoors <http://getmeoutdoors.blogspot.com/2017/08/fort-normandeau.html>.

Team ReconciliAction stands with Black Lives Matter

 

Tansi Nîtôtemtik, 

 

For our final post this week, Team ReconciliAction wants to acknowledge the long-standing oppression and structural and systemic racism against Black people worldwide. The senseless murder of Ahmaud Arbery and the brutal police killings of Breonna Taylor and George Floyd earlier this year brought renewed international attention to racial profiling, systemic racism, and the disproportionate use of lethal force by police against Black people.  The fact is, racism is deeply rooted in Canadian policy and culture, and it is time for our country to face this reality head on.  

 

When this blog discusses systemic racism, it is usually in the context of the historic and contemporary systems that oppress Indigenous people.  Indigenous people have survived many systems that were, by design, genocidal. Despite rampant exposure to disease, disenfranchisement, banning of cultural practices, residential schools, the sixties scoop, chronic underfunding and inaccessible services, intergenerational trauma, and the current over-incarceration and overrepresentation in the justice and child welfare systems, Indigenous culture and community stand resilient as ever. However, Team ReconciliAction acknowledges that right now, it is the time to shine a light on the historical and contemporary injustices faced by Black people in Canada. 

 

In Canada, historical records  of Black slavery date back to 1629, with documented evidence of at least 3000 Black people enslaved.^[1]  In Alberta, Black people have been discriminated against since the earliest Black settlers arrived.  Amber Valley was a settlement of Black pioneers who immigrated to Canada after discriminatory policy in Oklahoma stripped them of land ownership.^[2]  Canada was initially marketed as a place more racially tolerant, but after around 1000 Black pioneers settled in the west, anti-black racism began to rear its vicious head. Capitalizing on legislation that provisioned for race-based immigration laws, Frank Oliver of Edmonton petitioned to have legislation enacted that banned Black immigrants from coming to Canada.^[3]  While this legislation was never enacted, other systemic barriers were put in place that eventually slowed Black immigration to Alberta. 

 

Today, the Black community makes up 3.4% of Canada’s total population, and yet a disproportionate 9% of all people killed by police in Canada are Black.^[4]  Not only are Black people more likely to face police violence, they also earn less on average than non-Black Canadians, are more likely to be unemployed or living in poverty, and are the minority group most subjected to hate crimes and speech.^[5] 

 

We talk about reconciliation in the context of Indigenous-settlor relations, but Canada’s racist and colonial history has caused deep and pervasive harm to the Black community.  Repairing this harm starts with recognizing it. 

 

University of Toronto Library has curated a reading list for those interested in self-education on anti-Black racism in Canada.  

 

You can also stream the film We are the Roots: Black Settlers and their Experiences of Discrimination on the Canadian Prairies for free at BaileyandSoda.com to learn more about the early settlers of Amber Valley in Alberta

 

We stand in solidarity with Black Lives Matter and other equity-seeking groups in their collective fights against police brutality and systemic inequality. We hope you continue to tune in over the coming year to get our take on Canada’s efforts to peel back the layers of colonial systems of oppression that pervade our modern society. 

 

The team will be back next week to introduce the writers that will bring you this year's content.  We look forward to your comments and feedback over the upcoming year.

 

Until next time, Team ReconciliAction YEG

 

 

¹ Leyland Cecco, “Canada urged to open its eyes to systemic racism in wake of police violence”, the Guardian (14 June 2020), online: <http://www.theguardian.com/world/2020/jun/14/canada-systemic-racism-history>.

² “Alberta: Home, Home on the Plains - Settlement : Black Settlers”, online: <http://wayback.archive-it.org/2217/20101208164117/http://www.abheritage.ca/pasttopresent/en/settlement/black_settlers.html> See also; Dr Jenna Bailey, We are the Roots: Black Settlers and their Experiences of Discrimination on the Canadian Prairies (Bailey and Soda Films).

³ Immigration Act, SC 1910, c 27 [Immigration Act], s 38“The Governor in Council may, by proclamation or order whenever he deems it necessary or expedient, — (c) prohibit for a stated period, or permanently, the landing in Canada, or the landing at any specified port of entry in Canada, of immigrants belonging to any race deemed unsuited to the climate or requirements of Canada, or of immigrants of any specified class, occupation or character.”; Barrington Walker, ed, The African Canadian Legal Odyssey (Toronto: University of Toronto Press, 2012) at 30, 45.

⁴ Inayat Singh, “Deadly Force”, CBC News (23 July 2020), online: <https://newsinteractives.cbc.ca/fatalpoliceencounters>.

⁵ Graham Slaughter & Mahima Singh, “Five charts that show what systemic racism looks like in Canada”, CTVNews (4 June 2020), online: <https://www.ctvnews.ca/canada/five-charts-that-show-what-systemic-racism-looks-like-in-canada-1.4970352>.

Indigenous Sovereignty and the Treaties of Albany and Niagara

Tansi Nîtôtemtik,

The wampum belt is a symbol of sovereignty. Oneida Nation.
Retrieved from <www.oneidaindiannation.com/the-guswenta-two-row-wampum-belt-is-a-symbol-of-sovereignty>

Indigenous Governance requires recognizing sovereignty. As demonstrated in yesterday’s post, the Royal Proclamation of 1763 was an early recognition by the British Crown of the sovereignty of Indigenous nations. Early Crown-Indigenous treaties also recognized the sovereignty and right of governance for Indigenous peoples.

Seventeenth- and eighteenth-century treaties were “peace and friendship” agreements that sought allyship, defined territory, and established commercial and economic relationships.[1] Most treaties from the era did not involve cessation of land, but all treaties created relationships with rights and obligations on both sides and were the form of “diplomatic” relations between the European and Indigenous nations.[2]

When early treaties were negotiated, the colonizing powers of Great Britain and France believed that Indigenous nations “had sufficient independence and played a large enough role in North America for it to be good policy to maintain relations with them very close to those maintained between sovereign nations.”[3] The Supreme Court of Canada has acknowledged that the European powers’ use of treaties was a recognition of Indigenous nations as “independent.”[4] Two example of early treaties which recognized Indigenous sovereignty were the Treaties of Albany and Niagara.

The Treaty of Albany, negotiated in 1664, was “the first formal alliance between Aboriginal peoples in North America and the British Crown.”[5] The British, still a relatively weak power in North America, sought a powerful ally in the Iroquois Confederacy (Haudenosaunee) for economic and military aid against the French.[6] The agreement at Albany was an affirmation of Iroquois sovereignty and allowed the British and the Haudenosaunee to govern their own peoples, including the retention of exclusive jurisdiction for criminal law.[7] The agreement combined cultural elements from both nations – the British documented the treaty in written text and the Haudenosaunee recorded the agreement on a wampum belt “which was highly valuable and required great skill to fashion” and “demonstrated the sanctity with which they viewed their alliance with the British.”[8]

At the Treaty of Niagara negotiations in 1764, a “nation-to-nation relationship between settler and First Nations people was renewed and extended” and was again documented in both written text and on a wampum belt.[9] The written agreement was the Royal Proclamation of 1763 – the document became a treaty when the Haudenosaunee consented to it at Niagara.[10] The agreement also produced a culturally powerful two-row wampum belt that “recognizes interaction and separation of settler and First Nation societies.”[11] The wampum belt produced at Niagara illustrates a relationship of friendship between the Haudenosaunee and the British, but the parallel rows represent that each nation will remain distinct and “will not interfere with the internal affairs of the other.”[12] The Haudenosaunee cultural understanding of the wampum, read in conjunction with the Royal Proclamation, show that the parties agreed that each nation was to self-govern their own peoples.

The Truth and Reconciliation Commission has noted that treaties between “Indigenous nations and the Crown established the legal and constitutional foundations of this country”[13] – this foundation rests on mutual agreement between the British Crown and diverse Indigenous nations. Early Crown-Indigenous treaties, such as the Treaties of Albany and Niagara, highlight this recognition of sovereignty. The parties viewed themselves as distinct nations – like the separate but parallel rows on wampum – and these agreements show that the British Crown recognized Indigenous sovereignty and governance prior to Canadian Confederation.

 

Until Next Time,

Team ReconciliAction YEG

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[1]John J Borrows & Leonid I Rotman, Aboriginal Legal Issues: Cases, Materials & Commentary, 5^th ed (Toronto: LexisNexis Canada Inc, 2018) at 285 [Borrows & Rotman].

[2] Ibid at 281.

[3] R v Sioui, [1990] 1 SCR 1025 at 1053.

[4] Ibid.

[5] Borrows & Rotman supra note 1 at 11.

[6] Ibid.

[7] Ibid at 13.

[8] Ibid.

[9] John Borrows, “Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government” in Michael Asch, ed, Aboriginal and Treaty Rights in Canada: Essays on Law, Equity, and Respect for Difference (Vancouver: UBC Press, 1997) 155 at 161.

[10] Ibid.

[11] Ibid at 164.

[12] Ibid.

[13] 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: Library and Archives Canada, 2015) at 249.

The Royal Proclamation of 1763

Tansi Nîtôtemtik,

Image retrieved from Library and Archives Canada

The Royal Proclamation of 1763 was issued by King George III on October 7, 1763, following the Crown’s acquisition of French territory in North America under the Paris Treaty of 1763, following the Seven Years War. The Proclamation set out to establish separate colonial governments in the provinces of Quebec, East Florida, West Florida, and Grenada.

However, beyond establishing the limits of these four Crown colonies, the Proclamation is particularly significant for Indigenous governance in the fact that it reserved a large area of North America – specifically, the area West of the Appalachians, but excluding Quebec and Rupert’s Land (owned by the Hudson’s Bay Company) – for the exclusive use and possession of Indigenous peoples. It is for this reason that the Proclamation is also referred to as the “Indian Magna Carta”:

And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments, or within the Limits of the Territory granted to the Hudson’s Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid.[1]

In delineating the bounds of the colonial governments, the Proclamation explicitly states that the land not ceded to by Indigenous peoples was reserved to them, so that they might not be “molested or disturbed”: 

And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.[2]

Following this, the Proclamation “strictly forbid” all subjects from purchasing or settling on the reserved lands. It further set out that, in order to prevent any “frauds and abuses” occurring in the future, no private person could purchase reserved land, except with leave of the Crown, who could only purchase land from the Indigenous peoples:

And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved, without our especial leave and Licence for that Purpose first obtained.

And We do further strictly enjoin and require all Persons whatever who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described or upon any other Lands which, not having been ceded to or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements.

And whereas great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests and to the great Dissatisfaction of the said Indians, In order, therefore, to prevent such Irregularities for the future, and to the end that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent, We do, with the Advice of our Privy Council strictly enjoin and require, that no private Person do presume to make any purchase from the said Indians of any Lands reserved to the said Indians, within those parts of our Colonies where We have thought proper to allow Settlement; but that, if at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony respectively within which they shall lie; and in case they shall lie within the limits of any Proprietary Government, they shall be purchased only for the Use and in the name of such Proprietaries, conformable to such Directions and Instructions as We or they shall think proper to give for that Purpose.[3]

While at once affirming the rights of Indigenous peoples over their lands, the Proclamation is filled with statements that claim “Dominion” and “Sovereignty” over those territories, and speaks of the Crown’s “Protection” over the Indigenous peoples: “In placing these divergent notions within the Proclamation the British were trying to convince Native people that they had nothing to fear from the colonists, while at the same time trying to increase their own political and economic power.”[4]

The Royal Proclamation is argued by some to still be valid in Canada, given the fact that no other statute has overturned it.[5] It is, in fact, explicitly enshrined in Section 25 of the Constitution Act, 1982, relating to the application of the Charter of Rights and Freedoms:

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.

The relevant excerpt of the Proclamation can be read here.[6]

Until next time,

Team ReconciliAction YEG

 

[1] “Royal Proclamation, 1763”, Indigenous Foundations, online: <https://indigenousfoundations.arts.ubc.ca/royal_proclamation_1763/>

[2] Ibid.

[3] Ibid.

[4] John J. Borrows and Leonard I. Rotman, “Governance” in Aboriginal Legal Issues: Cases, Materials & Commentary, 5^th edition, eds. John J. Borrows and Leonard I. Rotman (Toronto: LexisNexis, 2018) at 17.

[5] “Royal Proclamation, 1763”, supra note 1.

[6] Ibid.