University of Alberta Faculty of Law Blog

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.

IBA 2020 Reflections: The Honorable David Lametti on Achieving Justice

Tansi Nîtôtemtik, 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

Until next time, 

Team ReconciliAction

 

 

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

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

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

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

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

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

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

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

IBA Seminar 1: LEGAL ETHICS AND PROFESSIONALISM

Tansi Nîtôtemtik,

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

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

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

6.3 HARASSMENT AND DISCRIMINATION

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

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

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

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

 

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

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

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

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

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

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

 

Until next time 

ReconciliAction YEG

 

 

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

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

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

“The Spanking Law” remains on the Books

Tansi Nîtôtemtik,

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

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

Correction of child by force

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

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

Why repeal s.43? 

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

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

What progress has been made?

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

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

Until next time,

Team ReconciliAction YEG

 

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

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

³Code, supra note 1. 

⁴CFCYL supra note 2. 

⁵Ibid at para 40. 

⁶Ibid at paras 24-30.

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

^8Ibid.

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

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

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

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

Joyce Echaquan: Death by Racism

 

Tansi Nîtôtemtik,

 

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

(Image Credit: THE CANADIAN PRESS/Paul Chiasson)

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

 

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

 

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

 

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

 

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

 

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

 

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

(Image Credit: Global News)

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

 

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

 

Until Next Time,

 

Team ReconciliAction YEG

 

 

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

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

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

⁴ Ibid.

⁵ Jesse Feith, supra note 2

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

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

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

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

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

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

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

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

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

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

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). 

5 Years After TRC: A National Standard

(Image Credit: Debwe, led by Mushkiiki Nibi Kwe (Lindsey Lickers) with artists Leah Roberts, Maybella King Reynolds & Shaneixqui Brown.) 

 

Tansi Nîtôtemtik, 

 

TRC Call to Action #4 calls for federal legislation that establishes a national standard for Indigenous child welfare.  These national standards were to include provisions that; 

• Affirm the right of Indigenous governing bodies to manage their own child welfare; 
• Require the legacy of residential schools to be considered by decision-makers in courts and child welfare agencies, and 
• Establish a placement requirement that prioritizes culturally appropriate care.^[1] 

 

The Act Respecting First Nations, Inuit and Métis Children,Youth and Families (the Act, formerly Bill C-92) came into force in January 2020.^[2]  ReconciliAction YEG wrote about Bill C-92 both after it was first introduced, and after the Act came into force.^[3] We won’t reinvent the wheel with today & tomorrow’s post, but we want to specifically address how this legislation responds to the Call of the TRC. 

 

The Act directly acknowledges the TRC Call for a legislated national standard in the preamble, which on the surface, immediately addresses Call to Action #4. It states: 

 

Whereas the Truth and Reconciliation Commission of Canada’s Calls to Action calls for the federal, provincial and Indigenous governments to work together with respect to the welfare of Indigenous children and calls for the enactment of federal legislation that establishes national standards for the welfare of Indigenous children.^[4]

 

Additionally, section 8(a) of the Act states that the purpose of the Act is to “affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services”.^[5]

 

While this legislation is a huge step forward with its statutory recognition of Indigenous government’s inherent jurisdiction over child welfare, it has been problematic from its introduction. Cindy Blackstock, executive director of the First Nations Child and Family Caring Society of Canada, called the legislation “a colonial Faustian bargain” in that it requires Indigenous groups to “accept the flawed bill in its current state or get nothing.”^[6]  These flaws include a total lack of statutorily allocated funding, over-reliance on the best interests of the child as interpreted by colonial courts, failure to fully recognize Indigenous jurisdiction, and no measures for accountability or data collection.^[7] The Yellowhead Institute published an in-depth assessment of the benefits and drawbacks of the final iteration of the Bill just after it was passed, but understanding the bargain referred to by Dr. Blackstock means understanding the two phases of the legislation.^[8]

 

Phase 1 of the Act is the National Standards.  This became effective immediately upon enactment, and sets a floor for how Indigenous child welfare must operate.^[9] Where the Act conflicts with provincial law, the Act takes precedent.^[10] This is a positive, because provincial child welfare standards vary from province to province, and the National standard will ensure that this minimum standard is consistent across Canada. 

 

Phase 2 of the Act is where Indigenous Laws can prevail over the National Standard, and the existing Provincial law. On its face, this sounds like a positive, but looking closer at the provisions acknowledging inherent jurisdiction, it appears more like inherent jurisdiction, if Canada says so.  Indigenous governing bodies can exercise jurisdiction either by giving notice of intent, or by making a request to enter into a coordination agreement with the relevant governments.^[11] Notice of intent to exercise jurisdiction allows the Indigenous governing body to handle child welfare matters according to provincial and federal law, but does not give force to Indigenous laws.^[12]  A coordination agreement would allow both jurisdiction and prevailing Indigenous law if reasonable efforts were made to reach an agreement within 12 months, and if the prevailing Indigenous law is not in conflict with the “best interests of the child”.^[13] 

 

Team ReconciliAction assigns a grade of C+ to the federally legislated national standard, and a grade of D to the Act’s affirmation of inherent jurisdiction. While a national standard for Indigenous child welfare has set a floor for the care of Indigenous children, the floor appears to be too low still without any allocated funding or accountability measures included as part of the standard. Additionally, an affirmation of the inherent jurisdiction that was never relinquished by Indigenous groups in the first place, merely amounts to lip service when colonial oversight is still imposed. 

Check back tomorrow for more on Call to Action #4, and tell us what you think of our assessment below!

 

Until next time, Team ReconciliAction YEG

¹  Truth and Reconcilliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconcilliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 320.

² An Act Respecting First Nations, Inuit and Métis Children, Youth and Families, SC 2019, c 24 [The Act].

³ ReconciliAction YEG, “Systemic Barriers and Indigenous Children: Bill C-92”, (21 March 2019), online: University of Alberta Faculty of Law Blog <https://ualbertalaw.typepad.com/faculty/2019/03/systemic-barriers-and-indigenous-children-bill-c-92.html>; ReconciliAction YEG, “An Overview of Bill C-92”, online: University of Alberta Faculty of Law Blog <https://ualbertalaw.typepad.com/faculty/2020/01/an-overview-of-bill-c-92.html>.

⁴ The Act, supra note 2 [emphasis added].

⁵ Ibid, s 8.

⁶ Cindy Blackstock, “Opinion: Will Canada continue to fail Indigenous girls?”, The Globe and Mail (6 June 2019), online: <https://www.theglobeandmail.com/opinion/article-will-canada-continue-to-fail-indigenous-girls/>.

⁷ Naiomi Walqwan Metallic, Hadley Friedland & Sarah Morales, The Promise and Pitfalls of C-92:  An Act respecting First Nations,  Inuit, and Métis Children,  Youth and Families (Toronto, Ontario: Yellowhead Institute, 2019).

⁸ Ibid.

⁹ The Act, supra note 2, ss 4, 8(b).

¹⁰ Ibid, s 4.

¹¹ Ibid, s 20.

¹² Ibid, s 20(3).

¹³ Ibid, ss 10–15, 20(3), 21, 22, 23.

TRC Call to Action #3 - Jordan’s Principle

In 1999, little Cree boy Jordan River Anderson was born in Norway House Cree Nation in Manitoba. He had multiple disabilities and complex medical needs which meant he would need to stay in a hospital. When he was 2 doctors said he could be moved to a special home that could accommodate his extensive needs. However, the federal and provincial governments couldn’t agree on who should pay for his home care costs, which meant Jordan would remain in a hospital for the remainder of his life which ended tragically at the age of 5.¹ Jordan was never able to go home, nor did he ever have the opportunity to be surrounded by family or community. This is a frustrating analogy to the residential school and Indian Hospital experiences many First Nations children endured.  Even at the turn of the new millennium, this was a sad reminder that Reconciliation has a very long way to go.

Following his death, in 2007 the Federal House of Commons² unanimously passed Motion-296 supporting and affirming that the government should immediately adopt a child-first principle: “Jordan’s Principle”, which intended to ensure no jurisdictional gaps or delays would ever happen again in providing First Nations children prompt access to required services, products, or supports they need. Furthermore, it would ensure that the first governmental body to be approached would be the one to pay for the child’s care, leaving jurisdictional disputes over responsibility of the costs to a later date.³

A child’s access to healthcare and quality of that care should not be up for debate, and has no business being a political dispute. Yet, unfortunately, that is what happens for many First Nations children who are either denied universal health care, endure unequal and delayed care, or are institutionalized in non-indigenous institutions away from family and community, all because governments have politicized their health and not honored their treaty obligations to health.⁴

The TRC Call to Action #3 states that Jordan’s Principle be fully implemented by all levels of government. By failing to promptly acknowledge inadequacies and implement comparable funding to Indigenous children without any delays, Canada discriminates against First Nations children. This on-going battle is a heavy hindrance to Reconciliation. Elder Elmer Courchene said it best on the Jordan River Anderson Documentary, The Messenger: "“Do justice, loving justice, caring justice, honest justice, respectful justice for our little ones. Simple.” ⁵ 

Due to hard fought battles, recent changes and implementations by different levels of governments in Canada have resulted in improved funding outcomes.  In November 2018, a Memorandum of Understanding was signed by eleven First Nations and Federal, Provincial and Territorial governments. This trilateral agreement was the first of its kind.⁶ Since 2018, additional tribunal and judicial rulings have attempted to cement eligibility rules for First Nations children and families. This will be discussed more in detail on tomorrows blog.

Please read tomorrow’s blog entry to find out what final grade ReconciliAction YEG gives Canada for TRC Call to Action #3.

 

[1] https://fncaringsociety.com/sites/default/files/Jordan's%20Principle%20Information%20Sheet.pdf

[2]https://www.fnha.ca/what-we-do/maternal-child-and-family-health/jordans-principle/faqs

[3] Private Member’s Motion M-296, 1st Sess, 39th Parl, 2007 (tabled by Jean Crowder, Nanaimo-Cowichan NDP, unanimously passed by House of Commons, 12 December 2007). See Vandna Sinha & Anne Blumenthal, “From the House of Commons resolution to Pictou Landing Band Council and Maurina Beadle v. Canada:  An update on the implementation of Jordan’s Principle” (2014) 9:1 First People’s Review 80.

[4]https://www.cerp.gouv.qc.ca/fileadmin/Fichiers_clients/Documents_deposes_a_la_Commission/P-772-31.pdf#:~:text=Jordan%E2%80%99s%20Principle%3A%20Reconciliation%20and%20the%20First%20Nations%20Child,process%20of%20truth%20and%20healing%2C%20leading%20toward%20recon-

[5] https://www.youtube.com/watch?v=cOT6snSDe4w

[6]https://rdnewsnow.com/2018/11/16/alberta-first-nations-sign-new-agreement-to-uphold-jordans-principle/

 

5 Years After TRC: Reducing Children in Care

Tansi Nîtôtemtik, 

 

Today we are looking at TRC Calls to Action #1 and #2.  Both of these Calls to Action call on governments to address the staggering number of Indigenous children in the child welfare system. The 2016 census showed that a shocking 52.2% of children in care were Indigenous.^[1] Why is this figure so shocking? Well, only 7.7% of children in Canada are Indigenous.^[2]  

(Image credit: Government of Canada; Indigenous Services Canada, “Reducing the number of Indigenous children in care”, (2 November 2018), online: <https://www.sac-isc.gc.ca/eng/1541187352297/1541187392851>) 

 

Call to Action #1 calls for a commitment from governments to reduce Indigenous children in care through resourcing, monitoring and educating child welfare organizations, and requiring child-welfare investigators and decision makers to consider culturally appropriate environments and the effects of residential schools on children and caregivers. Call to Action #2 calls for annual published data on child welfare services and Indigenous children.^[3]

 

To evaluate Call to Action #1, Team ReconciliAction first needed to know if there has been a reduction of Indigenous children in care since 2015. However, the most recent federal data on the number of Indigenous children in care comes from the 2016 census. Due to the absence of annual published data, we have assigned a failing grade for Call to Action #2.  Finding out the number of Indigenous children in care would have been a simple task if Call to Action #2 had been adequately responded to.  Luckily for our readers, we law students are no strangers to research. 

 

News reports from June 2020 state that the proportion of Indigenous children in care in Saskatchewan hit an 11-year high for the number of children in care, with 86% of these children being Indigenous.^[4]  Following a similar upward trend, Alberta Human Services reported a 4% increase in Indigenous children in care in 2018, raising Alberta's figure to 70%.^[5]  Finally, between 2016 and 2018, BC saw an increase in the number of Indigenous children in care from 61% to 63%.^[6] 

 

The number of Indigenous children in care may be further impacted by recent published judicial interpretations of the Act respecting First Nations, Inuit and Métis children, youth and families since it's coming into force in January 2020. Several courts across the country have interpreted the new priority placement provision in the Act in a way that places or keeps the Indigenous child in foster care, by skipping over or deeming 'not applicable' placements that are legislated as ahead of foster homes in priority.^[7] We will discuss this Act in greater detail next week when we look at Call to Action #4.

 

Overall, Call to Action #1 cannot be assigned a passing grade for reducing the number of Indigenous children in care because the proportion of Indigenous children in care has not been reduced since the final report from the TRC was released in 2015. Perhaps tomorrow this grade can improve when we evaluate whether there has been progress on the individual means of reducing the number of Indigenous children in care as set out in TRC Call to Action #1. Stay tuned!

What do you think about progress on Calls to Action #1 & #2? Comment below. 

 

Until next time, Team ReconciliAction YEG

 

¹ Government of Canada; Indigenous Services Canada, “Reducing the number of Indigenous children in care”, (2 November 2018), online: <https://www.sac-isc.gc.ca/eng/1541187352297/1541187392851>.

² Ibid

³Truth and Reconcilliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconcilliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 319.

⁴ Anna McMillan, “Number of children in Saskatchewan’s care hits 11-year high, with 86% identified as Indigenous”, online: Global News <https://globalnews.ca/news/7020525/indigenous-children-saskatchewans-care-11-year-high/>.

⁵ Human Services Alberta, Child Intervention Information and Statistics Summary (Alberta: Human Services Alberta, Child Intervention Division, 2018).

⁶ Government of British Columbia, “Children and Youth in Care”, (31 March 2018), online: <https://mcfd.gov.bc.ca/reporting/services/child-protection/permanency-for-children-and-youth/performance-indicators/children-in-care>.

⁷An Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019 c 24 [The Act], s 16, When placing an Indigenous child, priority must be considered in order of, (a) with one of the child’s parents, (b) with another adult member of the child’s family,(c) with an adult who belongs to the same Indigenous group, community or people as the child, (d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs, or (e) with any other adult. Alberta (Child, Youth and Family Enhancement Act, Director) v KC, 2020 ABPC 62 [AB Director v KC] at paras 30–31, Interpreted as inapplicable when family and Indigenous governing body have not put forth kinship or other placement options; British Columbia (Child, Family and Community Service) v SH, 2020 BCPC 82 [BCCFS v SH] Placement priority provision interpreted as not applicable when no other placement alternatives or evaluations have been provided to the court.

Meet the 2020/21 Team: Anita Cardinal-Stewart

Tansi Nîtôtemtik,

My name is Anita Cardinal-Stewart and I am a nehiyaw iskwew (cree woman), 2nd year law student and this year I have the honor of not only being a member of the Law and Social Media class, but also as acting President of the Indigenous Law Students Association at the University of Alberta, Faculty of Law. I am proud member of Woodland Cree First Nations #474 which is situated on Treaty 8 territory and made up of four reserves in northern Alberta (Cadotte Lake, Simon Lake, Golden Lake, and Marten Lake). The Woodland Cree First Nation signed an Adhesion to Treaty No.8 on September 24, 1991 and is situated 85 kilometers northeast of the Town Peace River, Alberta, 500km NW of Edmonton, Alberta.¹

It is there my father moved us to after the Adhesion, and away from the Metis Settlement (East Prairie Settlement) that we had been living on since I was a young girl. East Prairie sadly never truly felt like home because we were not Metis but rather non-status “Indians”. It was only after Bill C-31², or a Bill to Amend the Indian Act, passed into law in April 1985 to bring the Indian Act into line with gender equality under the Canadian Charter of Rights and Freedoms, that our family could once again reclaim our status and move “home”,never forgetting how our Metis brothers and sisters had welcomed us.

Prior to law school, I was a Paralegal working in civil litigation, at a law firm where I had the privilege of working on files such as the Sixties Scoop, Newfoundland & Labrador Residential School claim settlement, Forced Sterilization (of which my mother is a Representative Plaintiff for) and many other historical sexual abuse claims. All which have been powerful motivations to enter into law school, albeit later in life than most as a mature student. I am a mother to three sons and doting kokum to 2 year old Niko. I want to continue to be a loud and active advocate for Indigenous Rights and youth initiatives, and as the Edmonton Program Leader for Level Justice and Circle Coordinator for Righting Relations I plan to use my time here to work vigorously to do so. In my spare time I am an ultra trail runner and most days you can find me training on the beautiful Edmonton river valley trails. 

Thank you for your time and I hope you continue to come along on this journey with us for the next 8 months. It was a pleasure. 

Until next time, Anita Cardinal-Stewart

Team ReconciliAction YEG

 

¹  Woodland Cree First Nation, “Home” (2015), online: Woodland Cree First Nation <“https://www.woodlandcree.net/>

² The Canadian Encyclopedia, “Bill C-31” (May 12, 2020), online: The Canadian Encyclopedia <https://www.thecanadianencyclopedia.ca/en/article/bill-c-31>

Meet the 2020/21 Team: Tamya Chowdhury

Tansi Nîtôtemtik,

My name is Tamya Chowdhury, and I am a third year law student at the University of Alberta. I am very excited to be a member of the Law and Social Media class for the 2020-21 academic year, especially in light of our blog’s theme ‒ assessing the Truth and Reconciliation Committee (TRC) Calls to Action, five years later.^[1] 

Prior to starting law school, I worked as a registered nurse in the neonatal intensive care unit. My experience in healthcare clearly demonstrated the inequities faced by Indigenous people and communities, through inadequate access to healthcare, increased involvement with the child welfare system, and systemic discrimination. Since beginning law school, I have learned more about the colonial roots of these inequities. It is impossible for Canadian society to address the current inequities without acknowledging and understanding their historic roots.

This summer, I read Bob Joseph’s book, 21 Things You May Not Know About the Indian Act ^[2] . The book highlights the effects of the Indian Act and suggests means of reconciliation with Indigenous peoples, namely through self-governance. After reading the book, I felt a renewed sense of optimism at the prospect of reconciliation, despite the numerous historic injustices faced by Indigenous peoples. This year, I look forward to exploring what progress has been made five years after the TRC Calls to Action and taking a critical look at where we have fallen short. 

Thank you for taking the time to read our blog! We hope you continue along with us over the next eight months as we delve into the TRC’s 94 Calls to Action. 

Until next time,

Tamya Chowdhury

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).

²Bob Joseph, 21 Things You May Not Know About the Indian Act (Port Coquitlam: Indigenous Relations Press, 2018).

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>.

Year End Reflection: Elise Wouters

"Our Home and Native Land" by Jennifer Adomeit. Image retrieved from <nwac-store.myshopify.com/products/our-home-and-native-land-jennifer-adomeit-ceramic-tile-trivet>

Tansi Nîtôtemtik,

In many ways, writing this post trying to sum up my experience over the last eight months has been my most challenging post of the year. One year ago, when I agreed to co-lead ReconciliAction YEG for the 2019-2020 academic year, I expected to learn a lot and to share that learning, to be challenged and to challenge, to listen and to advocate. However, I do not think I accurately anticipated how personally meaningful my time spent on this project would be. I struggled for several days about how I wanted to “sign off”. I believe my struggle stemmed from a feeling that there was more to do, more to talk about, more advocacy to be engaged in andmore progress to be made on the journey to Reconciliation. I realized that “signing off” felt wrong and artificial because it is the opposite of the spirit of the message I want to leave. If anything, my time on the blog has ignited within me an even stronger desire to be intentional in involving myself in initiatives and projects working to bring about Reconciliation in Canada. This is particularly true as I embark on my legal career in the next few weeks.

In my opening post[1] on this blog, I shared that my perception of my role as advocate was to listen and help to create a space for voices to be heard that otherwise would be suppressed or lost in the complexity of legal processes. Eight months and twenty-three posts later, I am now keenly aware that simply creating a space for Indigenous voices is painfully inadequate if Reconciliation is ever to be accomplished. In particular, the posts I wrote on Indigenous Candidates and Issues in the Federal Election[2]; on child welfare and the tireless advocacy of Dr. Cindy Blackstock and Dr. Hadley Friedland[3]; on Principles in Métis Governance[4], on Questioning the Presumptions of Sovereignty in Canada[5], and most recently providing an update on Canada’s current progress on completing the TRC Calls to Action[6], demonstrated this lesson for me in different ways. The research I carried out for those posts was clear: the fight for Reconciliation cannot only carried out by the federal government and Indigenous communities. All Canadians must insist on the kind of Canada where the inherent Indigenous rights of self-determination and self-governance is a reality, not just an ideal. How do we do that? Vote for political leaders in your ridings who support Indigenous values and initiatives; stay up to date on current events and help others around you  become aware of important issues; support Indigenous businesses, artists, authors, leaders, and events (etc.); follow Indigenous activists and advocates on your preferred social media platforms; and get involved with already existing initiatives implementing Reconciliation efforts in Canada.

The overall message I want to get across is this: everyone in Canada should find a way to get involved in Reconciliation. Yes, even if you are a settler! I am a settler and as such, I urge those of you in our readership who are also settlers: please, do not disqualify yourself! I guarantee there is some area in your life that aligns with an initiative or project working towards various goals of Reconciliation in Canada that could use your skill set or at the very least an extra set of hands. You may even find that your previous passions align with Reconciliation efforts. I came to this blog with a keen passion for developing themes I had previously researched and written on the contribution of systemic factors to perpetuating inequality for Canadians. For that reason, many of my posts this year focused on institutionalized structural violence[7]and continued systems of colonization and their role in perpetuating inequality in particular on Indigenous women and girls[8] and in child and family service delivery in Canada.[9] I also was able to highlight the decolonizing force of Indigenous women and girls[10] and efforts in decolonization in service delivery.[11] The key is to get started. NOW. We must not only learn, we must do; we must not only commit to valuing Reconciliation in Canada, we must take active steps to insist on making Reconciliation a reality. Our blog title swapped out “Reconciliation” for “ReconciliAction” for a reason!

Before I wrap up, I want to thank my co-lead Alanna Wiercinski and our wonderful team of contributors: Kira Davidson, Russell Green, Sheila Raffray, and Kailey Hubele – your hard work and passion has inspired me and has allowed ReconciliAction YEG to carry on the tradition of excellence begun by our predecessors.

On behalf of myself and the rest of the team, I also want to thank our faculty advisors, Dr. Hadley Friedland and Dr. Moin Yahya – your faith in and the support and guidance offered to our Team made for a truly impactful learning experience for all of us.

As much as I wanted to avoid the “sign off”, this is unavoidably my last post for ReconciliAction YEG, and while my involvement in Reconciliation efforts has only just begun, my time on this project is at an end. I wanted to end by thanking you, our readers, for supporting us in our journey. While this is ReconciliAction YEG’s last post for this academic year, the project has been confirmed for another year with a new team of contributors. Stay tuned for their first post on September 14, 2020.

In the meantime, we hope you will stay involved in pursuing the goal of Reconciliation in Canada, by listening and learning, and perhaps by taking steps to get involved in Reconciliation initiatives in your area. I have no doubt we will meet again, so I sign off not with goodbye, but…

 

Until next time,

 

Yours Sincerely,

Elise Wouters

Team ReconciliAction YEG, Team Co-Lead

---

[1] ReconciliAction YEG, “Meet the Team: Elise Wouters” (11 September 2019), online (blog): University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2019/09/meet-the-team-elise-wouters.html>.

[2] ReconciliAction YEG, “In the Media: Indigenous Candidates and Indigenous Issues in the Federal Election” (11 October 2019), online (blog): University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2019/10/in-the-media-indigenous-candidates-and-issues-in-the-federal-election.html>.

[3] ReconciliAction YEG, “In the Media: Dr. Cindy Blackstock & Dr. Hadley Friedland on Bill C-92” (14 November 2019), online (blog): University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2019/11/in-the-media-dr-cindy-blackstock-dr-hadley-friedland-on-bill-c-92-.html>.

[4] ReconciliAction YEG, “The Principles of Métis Governance: Asserting the Right to Remain ka tipaymishooyahk (“We who own ourselves”)” (11 February 2020), online (blog): University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2020/02/the-principles-of-métis-governance-asserting-the-right-to-remain-ka-tipaymishooyahk-we-who-own-ourse.html>.

[5] ReconciliAction YEG, “Questioning the Presumptions of Sovereignty in Canada” (06 February 2020), online (blog): University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2020/02/questioning-the-presumptions-of-sovereignty-in-canada.html>.

[6] ReconciliAction YEG, “Reconciliation Report Card: ‘Beyond 94’ Update” (16 March 2020), online (blog): University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2020/03/reconciliation-report-card-beyond-94-update.html>.

[7] ReconciliAction YEG, “Navigating Structural Violence with Indigenous Families in Child Welfare” (15 January 2020), online (blog): University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2020/01/navigating-structural-violence-with-indigenous-families.html>.

[8] ReconciliAction YEG, “Indigenous Mothering and the Impacts of the Child Welfare System” (12 November 2019), online (blog): University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2019/11/indigenous-mothering-and-the-impacts-of-the-child-welfare-system.html>.

[9] ReconciliAction YEG, “Intro to Child Welfare: The Origins of Systemic Factors Affecting Indigenous Children and Youth” (04 November 2019), online (blog): University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2019/11/intro-to-child-welfare-the-origins-of-systemic-factors-affecting-indigenous-children-and-youth.html>.

[10] ReconciliAction YEG, “The De-Colonizing Force of Indigenous Girls and Youth” (20 November 2019), online (blog): University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2019/11/indigenous-girls-and-youth-as-de-colonizing-force-.html>.

[11] ReconciliAction YEG, “Decolonizing Child Rearing: Highlight on the Opokaa’sin Project” (16 January 2020), online (blog): University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2020/01/decolonizing-child-rearing-highlight-on-the-opokaasin-project.html>; See also ““Decolonization” and Why it Matters in the Context of Child Welfare” (27 November 2019) <ualbertalaw.typepad.com/faculty/2019/11/decolonization-and-why-it-matters-in-the-context-of-child-welfare.html>.

Reconciliation Report Card: 'Beyond 94' Update

Tansi Nîtôtemtik,

Image retrieved from CBC News <newsinteractives.cbc.ca/longform-single/beyond-94?&cta=20>.

In this, our final week of regular content for the academic year, our current team of ReconciliAction YEG contributors wanted to interact with our predecessors over the last two years and provide a “Report Card” of sorts on topics in Reconciliation previously covered on the blog. We wanted to provide a meaningful check-in on topics that are still relevant, and in doing so, highlight Canada’s current state of Reconciliation. We would like to discuss the areas where improvement and attention are needed, and point towards opportunities for our readers to get involved in the process of Reconciliation.

Today’s post interacts with one written in ReconciliAction YEG’s first year, featuring CBC’s ‘Beyond 94’ interactive website on the progress of the Truth and Reconciliation Commission’s 94 Calls to Action.[1] You can read the post here.[2] That post, written March 23, 2018, reported that the current progress on the 94 Calls to Action was as follows:

• 10 Calls to Action had been completed;
• 0 Calls regarding child welfare, education, and health care had been completed;
• 1 Call had been completed regarding language and culture;
• 2 Calls had been completed regarding justice; and
• 7 Calls had been completed regarding Reconciliation.[3]

As of CBC’s most recent update of the Beyond 94 website, on January 22, 2020, these numbers have not changed; today, only 10 Calls to Action have been completed.

Encouragingly, there are an additional 60 Calls to Action with an “In Progress” status. 21 Calls to Action are classified under “Projects underway” and 39 Calls to Action under “Projects proposed.” However, 24 Calls to Action are listed as “Not started.”

Of the 21 Calls to Action “In Progress – Projects underway,” there are:

• 6 Calls regarding child welfare, education, and health care;
• 4 Calls regarding language and culture;
• 0 Calls regarding justice; and
• 11 Calls regarding Reconciliation.

17 Calls had projects undertaken during or before 2018. A few of those projects undertaken regarding Reconciliation are related to church parties involved with residential schools in the past. These groups are working towards Reconciliation by implementing educational programs for clergy working with Indigenous groups; church participation in culture revitalization projects; and renouncing the Doctrine of Discovery and the principle of terra nullius. Notably, those Calls to Action involving government funding seem to be stalemated, such as progress on Call 78, which since 2018 has not seen government monetary contribution to the previously promised $10 million over seven years to the National Centre for Truth and Reconciliation.

4 Calls had projects undertaken in 2019 or later. Significantly, 2019 saw the passing of An Act respecting Indigenous languages (Bill C-91) as well as an act that would create the Office of the Commissioner of Indigenous Languages (Calls 14 and 15). However, neither of these fully address the elements of Calls 14 and 15.

Of the 39 Calls to Action “In Progress – Projects proposed,” there are:

• 10 Calls regarding child welfare, education, and health care;
• *All Calls regarding language and culture either completed or in projects underway*;
• 11 Calls regarding justice; and
• 18 Calls regarding Reconciliation.

28 Calls had projects proposed in or before 2018. Some of the Projects proposed regarding Reconciliation have “died in the Senate,” such as progress on Call 80 which called for the establishment of a National Day for Truth and Reconciliation. Other projects, such as the one undertaken in response to Call 57, which called for the programs to be created to educate public servants on the history of Aboriginal peoples, have made important progress. The KAIROS Blanket Exercise, now required participation for University of Alberta first year law students, was developed in response to Call 57. One of our contributors helped facilitate the KAIROS Blanket Exercise a few months ago, and you can read about her experience here.[4]

11 Calls had projects proposed in 2019 or later. Some of these projects are highlighted, as follows:

• In response to Calls 66, 73, and 74, the 2019 federal budget committed funding to:
  • the creation of an online residential school cemetery registry as well as to provide opportunities for commemoration (Calls 73 and 74); and
  • provide $15.2 million over three years for a pilot program to support Indigenous youth reconciliation initiatives (Call 66).

• In December of 2019, the Trudeau government promised to introduce legislation within a year to implement UNDRIP (Calls 43 and 44).

• In response to Call 34, which called upon the criminal justice system to better address the needs of offenders with Fetal Alcohol Spectrum Disorder (FASD), Manitoba opened Canada’s first sentencing court specifically for offenders with FASD.

• In response to Call 27, which called for lawyers to receive appropriate cultural competency training, the Law Society of British Columbia moved to require Indigenous cultural competency training for all lawyers practising in the province by 2021.

• In response to Call 28, which calls for law students to be required to take a course in Aboriginal people and the law, two universities in Canada – Lakehead University and Windsor University – have mandated an Indigenous law course as required for its law students.

Two years have passed since our original post featuring CBC’s Beyond 94 website and almost five years since the release of the TRC’s 94 Calls to Action in 2015. However, only 10 Calls have been completed and 24 Calls remain unaddressed. While it is hopeful that 15 additional Calls are being responded to through proposed projects or projects already underway but in most cases, a commitment to the completion of the Calls to Action in the long-term is required. The federal government must do more than promise action and funding – Reconciliation must be a prominent value and a targeted goal not only for Canada’s government but also for Canadian citizens if meaningful progress towards the completion of the Calls to Action is to be made. Like that first ReconciliAction YEG contributor to discuss Beyond 94 two years ago, we stand in agreement today in 2020 with what she had to say on the pace of Canada’s progress in completing the Calls to Action:

[It] is unacceptable. The TRC Calls to Action are not a to-do list… they are steps that must be taken imminently to better the plight of Indigenous survivors in Canada.[5]

 With 10 Calls to Action complete in the 5 years since the release of the TRC Final Report, the average pace of completion is 2 per year. At that rate, all 94 Calls to Action will not be completed until 2062. The time for Reconciliation is now.

Yours Truly,

Team ReconciliAction YEG

---

[1] Unless otherwise indicated, all information retrieved from CBC News, “Beyond 94: Truth and Reconciliation in Canada” (last updated 22 January 2020), online: CBC News <newsinteractives.cbc.ca/longform-single/beyond-94?&cta=32> [Beyond 94].

[2] ReconciliAction YEG, “In the Media: “Beyond 94”” (23 March 2018), online: University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2018/03/in-the-media-beyond-94.html>.

[3] Ibid.

[4] ReconciliAction YEG, “Reflection Post: The KAIROS Blanket Exercise, View from a Facilitator”, (20 September 2019) online (blog): University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2019/09/reflection-post-the-kairos-blanket-exercise-view-from-a-facilitator.html>.

[5] Supra note 2.

 

Indigenous Ownership in the TMX and the Potential for Poverty Alleviation in Indigenous Communities

Tansi Nîtôtemtik,

"We still have issues in the communities about poverty and water and housing," said President of the Indian Resource Counsel Stephen Buffalo about the benefits of Indigenous ownership of the Trans Mountain project.

Image retrieved from: <www.cbc.ca/news/business/tmx-trans-mountain-reconciliation-ownership-stake-1.5350454>.

This week, ReconciliAction YEG has been covering topics in the Trans Mountain Pipeline Project. Today’s topic discusses the question of how Indigenous ownership of a stake in the Trans Mountain Pipeline, which transports oil and other products from Edmonton to the Vancouver area, could contribute to the alleviation of poverty in Indigenous communities.

Three main interest groups are looking to own a stake in the pipeline project: “Project Reconciliation based in Calgary, the Iron Coalition led by chiefs in the Edmonton area, and the Western Indigenous Pipeline Group based out of [British Columbia].”[1] The groups are hoping to take advantage of the opportunity for First Nations across the country to collectively purchase a 51 per cent stake in the Trans Mountain Pipeline.[2] At a Calgary summit held by the National Coalition of Chiefs in November of 2019, the main topic was poverty on reserves and how to tackle the problem.[3] One possible answer is to empower Indigenous communities to increase their financial stake in Canadian energy products.[4]

Delbert Wapass, the founder of Project Reconciliation, says Indigenous ownership in the pipeline would help empower communities to be self-sufficient for generations into the future and that in the past, Indigenous groups have been “economically starved out of any large opportunities.”[5] Wapass comments, “We are always a recipient of – rather than controlling our own destiny. We don’t want to be dependant (sic) on government.”[6] Other Indigenous leaders have said an ownership stake could additionally ensure the environment is protected through Indigenous monitoring of the pipeline.[7] Ownership in the pipeline could contribute to the alleviation of poverty by providing an economic return in the form of wealth generation that can “pave the way for true reconciliation through self-determined generational wealth, poverty elimination and future projects” such as sustainable infrastructure projects.[8] Additionally, ownership stake in the pipeline would allow key decisions to be made by Indigenous communities, such as implementing the program of the First Nations Fisheries Council which would connect First Nations communities to employment opportunities across the marine sector.[9]

Before Indigenous ownership in the pipeline becomes a reality, two main hurdles must be overcome. First, the federal government must take steps to engage Indigenous groups in negotiating ownership. While Prime Minister Justin Trudeau has stated in the past that the government would be open to Indigenous ownership of the pipeline and has discussed assembling a “committee of experts to advise about the possibility of selling a financial stake of the project to First Nations,”[10] it is only recently that they have taken steps in the right direction. On February 10, 2020, Finance Minister Bill Morneau announced the beginning of a new set of consultations with Indigenous groups.[11] The consultations will determine if and how Indigenous groups might take part in the ownership of the Trans Mountain Pipeline and its expansion project.[12] With up to 129 communities to be consulted over the next several weeks, there is a need to ensure they have a chance for meaningful economic participation in the pipeline.[13] The second hurdle is that Indigenous groups must be committed to working together towards a common purpose or else risk the federal government selling the project to someone else.[14] One Indigenous group, the Iron Coalition, has concerns about making a bid on the pipeline too soon and warns that the ownership of the pipeline is “too important to get wrong.”[15] An Indigenous ownership stake in the Trans Mountain Pipeline Project has the potential to be “a significant step along the spectrum from managing poverty to managing wealth” and stands to positively redefine the relationship between Canada and Indigenous communities as it relates to major resource development.[16]

Ultimately, Indigenous ownership in the Trans Mountain Pipeline Project could be an important step towards Reconciliation between Canada and Indigenous Peoples. The return on investment would provide a key source of wealth that would allow Indigenous Peoples to gain autonomy by reducing their reliance on financial support from the government and thereby contributing to the assertion of their inherent rights to self-determination and self-governance. Recent developments in the Trans Mountain Pipeline Project indicate that the coming weeks will prove to be crucial as the federal government proceeds with the promised consultations and the Indigenous interest groups work to unite towards the common goal of ownership in the Trans Mountain Pipeline.

Until next time,

Team ReconciliAction YEG

---

To receive daily alerts to the blog, sign up here 

Be sure to stay up to date on other happenings with ReconciliAction YEG: 

Follow us on Twitter at:@ReconciliYEG

Connect with us on Facebook at: www.facebook.com/reconciliActionYEG/

Check out our Instagram at: @reconciliactionyeg

---

[1] Kyle Bakx, “Indigenous groups urged to unite or risk losing out on Trans Mountain pipeline ownership” (07 November 2019), online: CBC News <www.cbc.ca/news/business/tmx-trans-mountain-reconciliation-ownership-stake-1.5350454>.

[2] Jill Croteau, “First Nation chiefs work to defeat on-reserve poverty, pitch pipeline investment at Calgary summit” (04 November 2019), online: Global News <globalnews.ca/news/6126288/first-nation-chiefs-poverty-pipeline-calgary/>.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Delbert Wapass, Wallace Fox & Shane Gottfriedson, “Opinion: Native ownership of Trans Mountain pipeline would replace First Nation poverty with prosperity” (last updated 06 May 2019), online: The Province <theprovince.com/opinion/op-ed/opinion-native-ownership-of-trans-mountain-pipeline-would-replace-first-nation-poverty-with-prosperity>.

[8] Ibid.

[9] Ibid.

[10] Supra note 2.

[11] The Canadian Press, “Trans Mountain pipeline Indigenous ownership talks launched by federal government” (10 February 2020), online: Global News <globalnews.ca/news/6531738/trans-mountain-pipeline-indigenous-ownership-consultations/>.

[12] Ibid.

[13] Ibid.

[14] Supra note 1.

[15] Tony Alexis & Paul Poscente, “The Trans Mountain pipeline – and Indigenous ownership – is too important to get wrong” (25 July 2019), online: The Globe and Mail <www.theglobeandmail.com/opinion/article-the-trans-mountain-pipeline-and-indigenous-ownership-is-too/>.

[16] Ibid.

A Brief History of the Trans Mountain Pipeline Expansion Project

 

 Image by Brian Zinchuk for Pipeline News.

Tansi Nîtôtemtik,

In May, 2018, the Government of Canada purchased the Trans Mountain Pipeline Expansion Project (TMX) and its related assets from Kinder Morgan for $4.5 billion.[1] While the Government of Canada intends to put the pipeline back into the private sector, the TMX is presently under government control. With an expected “$46 billion in government revenues…in the first 20 years of operation,” the TMX is “Canada’s rise to the challenge of delivering oil extracted with stringent regulatory oversight and environmental protection to meet the world’s energy needs.”[2]

A large part of the construction of the TMX is the imperative consultation with Indigenous groups. Minister Morneau, Canada’s Finance Minister, said that these consultations are being guided by four main principles:

1. The potentially impacted Indigenous communities would have an opportunity for meaningful economic participation in the project;
2. Indigenous groups’ participation could help the economic development of their communities, in keeping with the spirit of reconciliation;
3. The government invested in the TMX to benefit all Canadians; and
4. The project would be built and operated on a commercial basis.[3]

The Duty to Consult

The duty to consult is a constitutional duty[4] imposed on the Crown when “the Crown proposes action that may adversely affect Indigenous rights or title.”[5] Consultation is a legal obligation, even where Indigenous rights are asserted but not yet proven.[6] Failure to engage in meaningful consultation with Indigenous groups could lead to the quashing of the project, as was demonstrated in the Federal Court of Appeal’s 2018 case of Tsleil-Waututh Nation v Canada (Attorney General) (“TWN 2018”).[7] One of the two reasons for quashing the TMX was the Crown’s failure to appropriately discharge its duty to  consult with affected Indigenous groups.[8] In particular, “Canada’s efforts fell well short of the mark set by the Supreme Court of Canada” in Phase III of the consultation framework.[9] Canada “failed in Phase III to engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns.”[10]

Two weeks ago, the Federal Court of Appeal, in Coldwater First Nation v Canada (Attorney General), approved the TMX expansion.[11] This is a major development in the TMX story and we will be addressing this decision in a spotlight post this Friday on the blog.

History of the Duty to Consult

Particulars of the duty to consult are set out in the 2004 Supreme Court of Canada (SCC) decision of Haida Nation v British Columbia (Minister of Forests).[12] In that case, it was recognized that the government’s “duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown.”[13] The case also outlined that “the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.”[14]

In Delgamuukw, [former] Chief Justice Lamer explained the nature and scope of the duty to consult:

The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to title…In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.[15]

In cases where deep consultation is required, the SCC in Haida Nation stated:

While precise requirements will vary with the circumstances, the consultation required…may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact the had on the decision. This list is neither exhaustive, nor mandatory for every case. The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases.[16]

Furthermore, consultation is to be done “with good faith to provide meaningful consultation appropriate to the circumstances,”[17] and must be responsive to Indigenous concerns.[18] These components of consultation play a large role in the current TMX proposal as there are “120 Indigenous in communities in Alberta and BC along the Trans Mountain pipeline’s corridor,” each with unique interests and rights affected.[19]

Indigenous Concerns

Many Indigenous groups have strongly opposed the TMX expansion. While the “[former] Natural Resources Minister Amarjeet Sohi… met with 65 Indigenous groups across 46 meetings,” many Indigenous groups remain unsatisfied.[20] Chief Leah George-Wilson for the UBCIC stated that:

Tsleil-Waututh again engaged in consultation in good faith, but it was clear that the federal government had already made up their mind as the owners of the project.[21]

There are many concerns that Indigenous groups have with the TMX expansion. For instance, the Coldwater First Nation “sits on an aquifer of potable water that they can drink without treatment.” A groundwater specialist determined that should the expansion proceed, it would cut through this aquifer, leading to concerns that a spill is imminent.[22]  For Chief Spahan of the Coldwater First Nation, a spill “is not a matter of if…but when.”[23]

Further still, Merle Alexander, “who represents the Shxw’owhamel First Nation near Hope, British Columbia” was once in favour of the pipeline but is now opposed to its expansion.[24] The biggest concern for this Indigenous community is that “an oil spill would destroy its sacred burial and archeological sites as well as the community’s sole source of water.”[25]

Conclusion

The TMX Project has been a continuous development over the last number of years and is a topic that is constantly evolving. Indigenous communities are being affected by the proposed project and new developments stemming from the 2020 Federal Court of Appeal decision will be numerous.

Until Next Time,

Team ReconciliAction YEG

---

To receive daily alerts to the blog, sign up here

Be sure to stay up to date on other happenings with ReconciliAction YEG:

Follow us on Twitter at:@ReconciliYEG

Connect with us on Facebook at: www.facebook.com/reconciliActionYEG/

Check out our Instagram at: @reconciliactionyeg

---

[1] Robyn Finley, “Radically Refining Roles: Proposed Indigenous Ownership of the Trans Mountain Pipeline” (18 November 2019) Burnet, Duckworth & Palmer LLP Energy Newsletter, online: <www.bdplaw.com/publications/> [Finley].

[2] Ibid.

[3] Ibid.

[4] See R v Kapp, 2008 SCC 41 at para 6.

[5]  Finley, supra note 1

[6] Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 35 [Haida Nation].

[7] “Trans Mountain Expansion Project” Major Projects Management Office of the Government of Canada, online: <www.mpmo.gc.ca/measures/256>; Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153 [TWN 2018].

[8] TWN 2018, ibid at para 6.

[9] Ibid.

[10] Ibid.

[11] Coldwater First Nation v Canada (Attorney General), 2020 FCA 34.

[12] Supra note 5.

[13] Ibid at para 16.

[14] Supra note 6.

[15] Delgamuukw v British Columbia, [1997] 3 SCR 1010 at para 168.

[16] Haida Nation, supra note 6 at para 44.

[17] Ibid at para 41.

[18] Tsleil-Waututh Nation, supra note 7 at para 6.

[19] Ibid.

[20] “With Trans Mountain Expansion Greenlit Again, Indigenous Leaders Vow to Fight On” (18 June 2019) Global News, online: <www.globalnews.ca/>.

[21] Ibid.

[22] Nick Purdon & Leonardo Palleja, “Trans Mountain Pipeline: Why Some First Nations Want to Stop It – and Others Want to Own It” (5 October 2019) CBC News, online: <www.cbc.ca/news/>.

[23] Ibid.

[24] Camille Bains, “6 First Nations Launch New Court Challenge to Trans Mountain Pipeline” (9 July 2019) CBC, online: <www.cbc.ca/news/>.

[25] Ibid.

In the Media: BC's Bill 41 - Commitment to Implementing UNDRIP

Tansi Nîtôtemtik,

The Tyee - "A Historic Day for BC First Nations. Now the Work Starts" (28 October 2019). Retrieved from: <thetyee.ca/Opinion/2019/10/28/Historic-Day-BC-First-Nations/.jpg>.

On November 28, 2019, Bill 41: “Declaration on the Rights of Indigenous Peoples Act” received Royal Assent, making British Columbia the first province in Canada to commit to implementing the United Nations Declaration on the Right of Indigenous Peoples (UNDRIP). UNDRIP has a long and complex history in Canada which was explored on this blog in 2018. For more information on UNDRIP generally, please see previous posts: UNDRIP: An Overview[1] and UNDRIP Inaction: Why the Wait?[2].

What does the legislation do?
The legislation was implemented as a way to ensure that all future BC legislation is consistent with the 46 articles of UNDRIP.[3] S. 3 outlines that the BC government must work “in consultation and cooperation” with Indigenous Peoples to ensure BC laws align with UNDRIP.[4] The legislation also outlines that the BC government will create an action plan on how to implement UNDRIP in consultation with Indigenous Peoples.[5] Further, the government must create an annual report which will outline progress toward achieving the measures in s. 3 and the goals in the action plan.[6] The legislation also provides for the provincial government and Indigenous bodies to make decisions jointly or require consent of Indigenous bodies.[7] The legislation will apply to all existing and incoming legislation.[8] It is anticipated that the full implementation of the legislation will take significant time.[9]

Article 19 and 32 of UNDRIP
Articles 19 and 32 of UNDRIP have received some criticism in the past. Article 19 states that governments

shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Article 32 sets out that

1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.[10]

These articles have been the subject of criticism because they are viewed by some to give Indigenous Peoples veto power over projects that would require their consent.[11] However, it is important to note the difference between veto and consent: “Veto is about unilaterally overriding a decision made by someone else, whereas consent means recognizing that the consenting party has self-determination to make an informed decision about a matter affecting them.”[12] BC Premier John Horgan has stated that it is an “important tool to require conversations and consultation with Indigenous peoples about projects that will affect them.”[13]

Most importantly, the commitment that this legislation represents is a step forward toward reconciliation in BC. While it will undoubtedly take a significant amount of time to implement this to all existing legislation, the agreement to UNDRIP is a major step forward given the history of UNDRIP in Canada.

Implementation of the Act
BC has outlined that they will be working in partnership with Indigenous Peoples in the province on how to move forward.[14] Consultation will begin with determining which BC laws should be addressed first to align them with UNDRIP.[15] The BC government has specifically outlined child welfare and environmental assessment as important areas of concern.[16] For more information on the Act and how it will be implemented, click here.[17]

 

Until next time,

Team ReconciliAction YEG

---

To receive daily alerts to the blog, sign up here 

Be sure to stay up to date on other happenings with ReconciliAction YEG: 

Follow us on Twitter at:@ReconciliYEG

Connect with us on Facebook at: www.facebook.com/reconciliActionYEG/

Check out our Instagram at: @reconciliactionyeg

---

[1] Team ReconciliAction YEG, “UNDRIP: An Overview”, University of Alberta Faculty of Law Blog, online:  <https://ualbertalaw.typepad.com/faculty/2018/02/undrip-an-overview.html>.

[2] Team ReconciliAction YEG, “UNDRIP Inaction: Why the Wait?”, University of Alberta Faculty of Law Blog, online: <https://ualbertalaw.typepad.com/faculty/2018/02/undrip-inaction-why-the-wait.html>.

[3] Simon Little, “British Columbia becomes 1^st Canadian province to pass UN Indigenous rights declaration”, Global News, (26 November 2019) online: <https://globalnews.ca/news/6222331/british-columbia-passes-undrip/> [Simon Little].

[4] Bill 41, Declaration on the Rights of Indigenous People Act, 2019 4^th Sess, 41^st Leg, 2019 (assented to 28 November 2019), SA 2019 cl 3 [Declaration on the Rights of Indigenous People Act].

[5] Ibid at cl 4.

[6] Ibid at cl 5.

[7] Ibid at cl 7; West Coast Environmental Law, “Bill 41: A new law to uphold Indigenous rights in BC”, West Coast Environmental Law, (13 November 2019) online: <https://www.wcel.org/blog/bill-41-new-law-uphold-indigenous-rights-in-bc> [West Coast Environmental Law].

[8] Simon Little, supra note 3.

[9] Ibid.

[10] United Nations, United Nations Declaration on the Rights of Indigenous Peoples (2007) at 16, online: <https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf> [UNDRIP].

[11] Ibid at 22-23; Simon Little, supra note 3.

[12] West Coast Environmental Law, supra note 7.

[13] Simon Little, supra note 3.

[14] Government of British Columbia, “A New Path Forward”, Government of British Columbia, online: <https://declaration.gov.bc.ca/> [Government of British Columbia].

[15] Ibid.

[16] Ibid.

[17] Ibid.

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

---

To receive daily alerts to the blog, sign up here 

Be sure to stay up to date on other happenings with ReconciliAction YEG: 

Follow us on Twitter at:@ReconciliYEG

Connect with us on Facebook at: www.facebook.com/reconciliActionYEG/

Check out our Instagram at: @reconciliactionyeg

---

[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.