University of Alberta Faculty of Law Blog

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

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

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

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

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

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

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

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

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

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

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

Until Next Time,

Team ReconcilAction YEG

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

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

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

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

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

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

[7] Ibid

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

\

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

Tansi Nîtôtemtik,

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

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

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

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

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

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

1. Read the MMIWG and TRC reports.

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

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

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

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

4. Take action at every available opportunity yourself

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

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

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

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

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

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

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

http://nctr.ca/reports.php

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

Until next time, 

Team ReconciliAction

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5 Years After TRC: Midpoint Recap

Tansi Nîtôtemtik,

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

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

 

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

Until next time, 

Team ReconciliAction YEG

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Join the conversation by following us on social media

Twitter: @ReconciliYEG;

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Is it Reconciliation? New funding announced for Indigenous child welfare

(Image Credit: THE CANADIAN PRESS/Adrian Wyld)

Tansi Nîtôtemtik,

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

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

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

New funding announced

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

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

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

Breakdown of the new funding

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

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

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

What do we think?

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

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

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

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

Links to previous posts on Indigenous Child Welfare

Part I: Sixties Scoop

Intergenerational Injustice & Indigenous Child Welfare

Ohpikihawasowin (the raising of children)

Moving Forward and Looking Back: Indigenous Children

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

ILSA Speaker Series: Panel Discussion and the Aboriginal Justice Award

Systemic Barriers and Indigenous Children: Bill C-92

Systemic Barriers and Indigenous Children: Bill 22

Influential Indigenous Women: Dr. Cindy Blackstock

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

The Role of the Indigenous Community in Child Development

Indigenous Mothering and the Impacts of the Child Welfare System

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

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

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

De-colonizing Racine v Woods

An Overview of Bill C-92

An Overview of Bill 22

5 Years After TRC: Reducing Children in Care

5 Years After TRC: Reducing Children in Care Part 2

5 Years After TRC: A National Standard

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

 

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

Until Next Time, 

Team ReconciliAction

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

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

³ Ibid.

⁴ Ibid.

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

⁶ supra note 2.

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

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

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

5 Years After TRC: Youth Injustice

(Christie Belcourt, The Crow Taught Her. She Listened. via “Feature artist for April 2020: Christi Belcourt”, (19 April 2020), online: Alberta Native News <https://www.albertanativenews.com/feature-artist-for-april-2020-christi-belcourt/>.)

 

Tansi Nîtôtemtik,

Last week we discussed Canada’s response to TRC Call to Action #30, which addresses the over-incarceration of Indigenous people in Canada. Today we will evaluate Call to Action #38, which calls upon the “federal, provincial, territorial, and Indigenous governments to commit to eliminating the overrepresentation of Indigenous youth in custody over the next decade.”^[2]

 

Since the Youth Criminal Justice Act (YCJA) came into force in 2003, overall youth incarceration has been significantly reduced.^[3]  However, the population of incarcerated Indigenous youth has not been decreasing at the same rate, and the proportion of the incarcerated youth population that is Indigenous has been steadily increasing.^[4]  

 

As of 2018, the proportion of incarcerated Indigenous youth had risen to 43%, up from 26% in 2008.^[5] Both of these numbers are disgraceful given that Indigenous youth account for about 8% of the Canadian youth population.^[6]  But what else do these numbers tell us?

 

1. If the overall incarcerated youth population is decreasing, it's because fewer non-Indigenous youth are being imprisoned.  
2. Indigenous youth offenders are still consistently incarcerated for unlawful conduct.
3. Indigenous youth offenders are far more likely to be imprisoned than non-Indigenous youth offenders.

 

This over-incarceration of Indigenous youth has been linked to the similar overrepresentation in the child welfare system, and those affected have been dubbed “Crossover Kids”. A report analyzing this link was released this past April by the Manitoba Centre for Health Policy (MCHP).^[7]  In Manitoba, around 25% of children identify as Indigenous, yet Indigenous children and youth make up an unconscionable 90% of children in care and  80% of corrections admissions.^[8]  The report found a very high likelihood of overlap for Indigenous youth who were 24 times more likely to have experienced both systems, than non-Indigenous youth in the province.^[9]  In determining the reasons for this overlap, the report was careful to note that Indigeneity is NOT an indicator for criminality, but instead placed the blame squarely on Canada, citing: 

 

• Colonial assimilation policies and practices, such as residential schools and the Sixties Scoop; 
• Systemic racism in both Child and Family Services and the youth criminal justice system,  and 
• Structural violence and "chronic underfunding" of services to Indigenous communities which amount to a denial of basic human rights, or necessary resources.^[10]

 

So what is Canada doing to reduce incarceration of Indigenous youth since the TRC report called them to action in 2015?

 

An amendment to the YCJA came into force in December of 2019, which will work to reduce youth over-incarceration by: 

• encouraging the use of extrajudicial measures and judicial reviews as alternatives to laying charges for administration of justice offences; 
• limit the use of custodial sentences for administration of justice offences;
• require that circumstances of Indigenous accused and of accused from vulnerable populations are considered at bail, and
• ensure that the conditions imposed on youth at the bail stage or at sentencing are only those necessary to address the offending behaviour.^[11] 

 

On November 18th, the Government of Canada announced $5 million in funding that will be spread across eight organizations who do preventative and restorative justice work with Indigenous youth.^[12]

 

Whether these initiatives will have any impact on over-incarceration of Indigenous youth remains to be seen. Unfortunately, they do not address the systemic racism, systemic violence, over-representation in child welfare, and the chronic underfunding of Indigenous communities that are known factors in Indigenous youth offending. These new measures are the equivalent of putting a bandaid onto a severed artery. Without a sweeping reform in Canada’s approach to reconciliation, we are not likely to produce improved outcomes for Indigenous youth. Team ReconciliAction assigns Canada a Grade of ‘F’ on the response to Call to Action #38.   

Did we miss anything Canada is doing to fix the over-incarceration of Indigenous youth? Tell us in the comments!

 

Until Next Time, 

Team ReconciliAction

 

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¹  Patricia Monture-Angus, Thunder in my soul: a Mohawk woman speaks (Halifax, N.S: Fernwood Pub, 1995) at 59.

² Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 178.

³ Youth Criminal Justice Act, SC 2002, c 1 [YCJA]; Nicholas Bala, Peter J Carrington & Julian V Roberts, “Evaluating the Youth Criminal Justice Act after Five Years: A Qualified Success” (2009) 51:2 Can J Criminol & Crim Justice 131 at 139.

⁴ Nate Jackson, “Aboriginal Youth Overrepresentation in Canadian Correctional Services: Judicial and Non-Judicial Actors and Influence” (2015) Alta L Rev 927 at 928, 935.

⁵ Statistics Canada, Adult and youth correctional statistics in Canada, 2017/2018, by Jamil Malakieh, Catalogue no. 85-002-X (Ottawa: Statistics Canada, 2019) at 7.

⁶ Ibid. 

⁷ Marni Brownell et al, The Overlap Between the Child Welfare and Youth Criminal Justice Systems: Documenting “Cross-Over Kids” in Manitoba (Winnipeg, MB: Manitoba Centre for Health Policy, 2020).

⁸ Nicholas Frew, “Overlap between involvement in CFS care, Manitoba youth justice system ‘hard to deny’: co-author of new study”, (3 June 2020), online: CBC News <https://www.cbc.ca/news/canada/manitoba/study-children-youth-cfs-youth-criminal-justice-manitoba-1.5596165>.

⁹ Brownell et al, supra note 7 at 76.

¹⁰ Ibid at xviii.

¹¹ Canada, Department of Justice, Legislative background: an Act to Amend the Criminal Code, the Youth Criminal Justice Act and Other Acts and to Make Consequential Amendments to Other Acts (Bill C-75). (Ottawa: DOJ, 2018).

¹² Department of Justice Canada, “Government of Canada supports restorative justice initiatives across the country, including those supporting Indigenous communities and youth”, (18 November 2020), online: gcnws <https://www.canada.ca/en/department-justice/news/2020/11/government-of-canada-supports-restorative-justice-initiatives-across-the-country-including-those-supporting-indigenous-communities-and-youth.html>.

5 Years After TRC: Funding Reasonable Alternatives to Incarceration

(Image: Gladue Principles: Indigenous Peoples and the Canadian Criminal Justice System”, online: Wilfrid Laurier University <https://www.wlu.ca/professional-development/centre-for-public-safety-and-well-being/gladue-principles/index.html>)

 

Tansi Nîtôtemtik

 

Punitive sanctions for crime, in particular incarceration, actually increase the likelihood of recidivism over community-based restorative pathways.^[1] The Criminal Code of Canada requires courts to consider the restorative justice concepts of reparation and rehabilitation in sentencing.^[2] Moreover, the Supreme Court of Canada has confirmed that reconciliation efforts with Indigenous offenders necessitates a need for restorative justice in sentencing.^[3] 

 

Sentencing factors for Indigenous offenders

R v. Gladue was a pivotal decision for Indigenous people.^[4]  In this case, the Supreme Court of Canada responded to the Criminal Code reforms to sentencing enacted in 1996, and to the findings of the Royal Commission on Aboriginal People with respect to the over-incarceration of Indigenous people in Canada.^[5]  This decision introduced what was intended to become a new set of normative legal practices, commonly referred to as Gladue factors.  The Gladue factors are meant to address the disproportionate likelihood of incarceration for Indigenous offenders, and require contextual assessment of the ways that Indigenous identity and collective and individual experiences may have contributed to a given offence.^[6]  Gladue clarified the statutory obligation imposed by section 718.2(e) of the Criminal Code, which requires courts to consider the circumstances of Aboriginal offenders,  and set out the following factors for courts to consider when sentencing an Indigenous offender: 

1. The systemic and background factors of the offender that may have had a role in bringing the offender before the courts, and
2. Sentencing procedures or other sanctions that may be appropriate for the offender based on the offenders’ heritage or cultural connection.^[7]

More than a decade after Gladue, the Supreme Court of Canada reaffirmed and clarified these factors in  R v. Ipeelee.^[8]  The Court in Ipeelee analyzed sentencing of Indigenous offenders post-Gladue, and found several errors in the application of the law.^[9]  These errors included; the need for an offender to establish a causal link between background factors and the commission of the offence, and the failure to apply Gladue factors to sentencing for serious offences.^[10]

 

The obligation to seek alternatives to incarceration

Since Ipeelee, there is still evidence that the courts have difficulty applying Gladue factors,^[11] and the proportional incarceration rate of Indigenous people has continued to rise despite a decline in custodial sentences overall.^[12]  It is apparent from cases such as R v. Sangris, R v. C(R) and R v. Paul, where Gladue factors were “considered” but ultimately dismissed despite circumstances involving residential school and intergenerational trauma, that our current system is perpetuating harm against Indigenous people.^[13]  The Supreme Court of Canada’s outright rejection of judicial attempts to minimize the principles set forth in Gladue and statutorily by s.718.2(e), has reinforced that the responsibility of addressing over-representation is an obligation to be borne by all actors in the Canadian justice system.^[14]  The justice system requires the support of government in order to comply with this statutory obligation. 

 

Evaluation of Call to Action #31

Call to Action #31 calls for sufficient and stable funding to implement and evaluate community sanctions that will provide realistic alternatives to imprisonment for Indigenous offenders and respond to the underlying causes of unlawful conduct.^[15]  Alberta allocated $700,000 in funding in 2019, to be distributed as grants for community justice initiatives.^[16] These funds were awarded to 14 organizations within the province, three of which are located near Indigenous communities.^[17]  In 2017, Canada allocated $10 million in funding over five years to an Indigenous Community Corrections Initiative through which 16 projects across Canada were awarded funds.^[18] This is a starting point, however the initiative awarded funds to only 16 out of 126 applicants. 

The combined provincial and federal cost to operate correctional facilities year after year is $5 Billion.^[19]  Considering that Indigenous people make up 33% of the prison population nationally and 45% percent of the prison population in Alberta, $10.7 Million in funding for community justice initiatives hardly seems sufficient.^[20] It is especially disheartening that at least 110 projects were denied funding when the provincial and federal governments allocate 500 times more money to prisons and jails.  

 

If funding continues to be allocated to prisons and jails rather than community based programming, the efficacy of these programs cannot be properly evaluated. These programs require additional resources to be a reasonable alternative to incarceration and to accommodate 30-45% of people eligible for an incarceral sentence. The judicial body may have a statutory obligation to consider alternatives to imprisonment, but the legislators who created that statutory obligation are not providing the necessary support to ensure that realistic options are available. 

 

Team ReconciliAction assigns a grade of ‘C’ for the response to Call to Action #31.  The funding allocated is neither stable nor sufficient to provide realistic alternatives and respond to underlying causes of unlawful conduct. 

Stay tuned tomorrow for our look at mandatory minimum sentencing. 

 

Until Next Time, 

Team ReconciliAction

 

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Several of the concepts discussed in today’s post were borrowed from the prosecution policy proposal prepared and submitted by Sarah Kriekle and Kristen Hamilton for the 2019 Kawashimon Negotiation Moot. This research is shared here with permission and great thanks to Sarah & Kristen.

¹ William Bales and Alex Piquero, “Assessing the Impact of Imprisonment on Recidivism.” (2012) 8:1 Journal of Experimental Criminology at 86.

² Criminal Code, RSC 1985, c C-46, s 718 [Criminal Code]

³ R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC) [Gladue]; R v Ipeelee, 2012 SCC 13 [Ipeelee]; see also R. v. Proulx, 2000 SCC 5 at 22 [Proulx].

⁴ Gladue, ibid.

⁵ Criminal Code, supra note 2 at s 718.2(e) [Criminal Code]; Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada, (Ottawa: Canada Communication Group, 1996) [RCAP].

⁶ Paula Maurutto and Kelly Hannah-Moffat, “Aboriginal Knowledges in Specialized Courts: Emerging Practices in Gladue Courts” (2016) 31:3 Canadian Journal of Law and Society, 451-471.

⁷ Gladue, supra note 3 at 66, 93.

⁸ Ipeelee, supra note 3.

⁹ ibid at 80.

¹⁰ ibid at 81, 84.

¹¹ See R v Sangris, 2014 NWTSC 23 (accused had been to residential school yet the judge found no link between systemic factors and the particular crime committed) [Sangris]; R v C(R), 2013 ONCJ 736 (judge concluded offender had a normal childhood despite being sexually abused by male cousins for two years) [C(R)]; R v Paul, 2014 BCCA 81 (accused had not experienced a difficult past - but his dad was a drug dealer and was murdered)[Paul].

¹² Office of the Correctional Investigator, Press Release “Indigenous People in Federal Custody Surpasses 30%” 21 Jan 2020 online:<https://www.oci-bec.gc.ca/cnt/comm/press/press20200121-eng.aspx>.

¹³ C(R) supra note 11; Paul, supra note 11; Marie-Eve Sylvestre and Marie-Andrée Denis-Boileau, “Ipeelee and the Duty to Resist” (2018) 51:2 UBC Law Review at 569-570.

¹⁴ Jonathan Rudin, "Looking Backward, Looking Forward: The Supreme Court of Canada’s Decision in R. v. Ipeelee." (2012) 57:17 The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference at 381.

¹⁵ 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 173.

¹⁶ Jonny Wakefield, “Restorative justice in Alberta ‘far tougher than spending time in jail’”, Edmonton Journal (7 January 2019), online: <https://edmontonjournal.com/news/local-news/restorative-justice-in-alberta-far-tougher-than-spending-time-in-jail>.

¹⁷ “Alberta Community Restorative Justice (ARCJ) grant table”, online: Alberta Government <https://open.alberta.ca/publications/alberta-community-restorative-justice-arcj-grant-table>.

¹⁸ “Indigenous Community Corrections Initiative - Projects funded since 2017”, (24 February 2020), online: Public Safety Canada <https://www.publicsafety.gc.ca/cnt/cntrng-crm/crrctns/cmmnt-ccrctns-nttv-prjcts-en.aspx>.

¹⁹ “Financial facts on Canadian prisons”, (23 August 2018), online: The John Howard Society of Canada <https://jhscan.wpengine.com/blog/financial-facts-canadian-prisons/>.

²⁰ Office of the Correctional Investigator, supra note 12; Dylan Short, “Indigenous inmates make up 45 per cent of all people in Alberta’s federal prisons”, Edmonton Journal (22 January 2020), online: <https://edmontonjournal.com/news/crime/indigenous-inmates-make-up-45-per-cent-of-all-people-in-albertas-federal-prisons>.

5 Years After TRC: Excluded from the Residential School Settlement

(Image: iStock Photo)

 

Tansi Nîtôtemtik,

 

A Record-Breaking Settlement

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

 

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

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

 

Many survivors not eligible to make a claim

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

 

The settlement agreement did not include; 

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

 

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

 

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

 

Many Class Action Suits 

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

 

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

Canada’s response to Call to Action #29

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

 

 

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

 

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

 

Until Next Time, 

Team ReconciliAction

 

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

² Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 130.

³ Ibid at 169.

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

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

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

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

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

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

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

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

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

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

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

 

Tansi Nîtôtemtik,

 

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

 

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

 

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

 

Colonial Roots

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

 

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

 

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

 

Contemporary Indigenous Health

(Image Credit: THE CANADIAN PRESS/Paul Chiasson)

 

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

 

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

 

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

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

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

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

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

 

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

Until Next Time,

Team ReconciliAction YEG

 

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

² Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 160.

³ Ibid.

⁴ Ibid at 94.

⁵ Ibid.

⁶ Ibid at 99.

⁷ Ibid at 94.

⁸ Ibid at 98.

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

¹⁰ Helen Fallding, “Disease factory Consequences of living without tap water and flush toilets”, Winnipeg Free Press (3 November 2010), online: <https://www.winnipegfreepress.com/no-running-water/health/disease-factory--consequences-of-living-without-tap-water-and-flush-toilets.html>; Jody Porter, “Few left behind in Neskantaga First Nation prepare for winter without water”, CBC News (26 October 2020), online: https://www.cbc.ca/news/canada/thunder-bay/neskantaga-left-behind-1.5776993.

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

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

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

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

¹⁵ Kristy Kirkup & Tu Thanh Ha, “Indigenous woman records slurs, taunts of Quebec hospital staff before her death”, The Globe and Mail (29 September 2020), online: <https://www.theglobeandmail.com/canada/article-indigenous-woman-records-slurs-taunts-of-quebec-hospital-staff-before/>.

Mi'kmaq March in Solidarity: Raising Voices Together

Tansi Nîtôtemtik,

We feel a heavy burden of responsibility to speak out when we see a wrong being committed. This responsibility means using our voice whenever we can to shine a spotlight on important issues. We here at ReconciliAction YEG have heard the cries of the Mi’kmaq peoples in Nova Scotia located on Mi’kma’ki. Their voices have been loud and in distress because of violent acts of terrorism, bullying and threats of more violence directed at Mi’kmaq fishermen in the last few months.  We have also noticed, along with the rest of the world, the lack of action from the Canadian Government and Law Enforcement in the face of this suffering.

What have the Mi’kmaq fisheries done to warrant violence from the rest of the industry? This is not really a question of what they have done, but rather an unfounded fear of what could they do if allowed to continue to exercise their inherent constitutionally protected treaty right to fish for a moderate livelihood; rights that have been affirmed in the Marshall decisions.^[1]

On September 17, 1999, the Supreme Court acquitted Donald Marshall Jr. of three federal fishery offences and affirmed the Mi’kmaq treaty right to hunt, fish and gather in pursuit of a “moderate livelihood.” This right includes the right to sell the catch, and not to get rich, but to be able to take care of their families and communities. Unfortunately, the SCC did not nail down an exact meaning of “moderate livelihood”. 

In November 1999, the Supreme Court issued a clarification, known as Marshall 2, confirming that Mi’kmaq fisheries would still be regulated by the federal government for conservation purposes. However, the decision still did not clarify the meaning of “moderate livelihood”, and Canada has failed to fully implement the Marshall decision because of that lack of clarification.^[2]

The cause of the violence in Nova Scotia is not a legitimate conservation issue. Many experts and scientists agree that conservation is not either a present nor foreseeable problem if practiced as is by the Mi’kmaq fisheries.^[3] The Mi’kmaq people have been fishing in that area for thousands of years—not hundreds—but thousands—and have never needed conservation-driven seasonal limits or catch restrictions because they did not overfish like the non-indigenous fishing industry. They did not exploit the resource then and they don’t exploit it now. The impetus for the current violence is systemic discrimination and a fear of First Nations people finally emerging from the shadow of colonialism. This is about refusing to honour treaties with Indigenous people.

On Saturday October 24, the “All Eyes on Mi’kma’ki” gripped our nation and cities across Canada, including Edmonton. “All Eyes on Mi’kma’ki” was a peaceful march initiated to help spur government action, to come together in solidarity and in response to the escalating tensions between commercial fishermen and Mi’kmaq fishermen. It received nationwide attention and created an opportunity for further conversation about what Canada is doing to protect affirmed “Treaty Rights” and First Nations people in the face of direct violence from non-Indigenous people. One of our writers here at ReconciliAction YEG, Anita Cardinal-Stewart, President of the University of Alberta Faculty of Law’s Indigenous Law Students Association and Vice-President of the First Nations for the National Indigenous Law Students Association, attended and spoke at the rally that day in Edmonton. 

(Photo Credit: Darlene Hildebrandt/In this photo: Anita Cardinal-Stewart) 

She described the initial atmosphere as being peppered with some worry about anti-protestors and the participant safety. But as the march went forward she said it was clear that the people present had gathered in solidarity with Mi’kma’ki and a desire to a have peaceful walk, the organizers did a wonderful job of ensuring that. As the supporters gathered outside at the Edmonton RCMP headquarters, young Cree singer Noah Simon’s powerful voice rang out over the crowd to the beat of a drum and the air was filled with purpose and conviction. It was a clarifying moment of solidarity and understanding that necessary change and action is required for justice to be effected. Hate and discrimination have no place in our present nor our future. Canada must do better. 

After some words from leaders in the community, the walk continued unprohibited to Gallagher Park. Along the way the marchers raised their collective voices in support for Mi'kmaq and Treaty rights and honks from passing vehicles in support was a welcome sound. Once there, the camera crews and law enforcement slowly dissipated, and it felt like an intimate moment to reflect, talk and listen to those who would be speaking.  It was at that time that Anita spoke to the crowd of supporters about the Marshall decisions, Treaty relations, and hope for a better future. A future where Canada and Canadians no longer ignores what it means when we say, respect and honor the Treaties because, “We Are All Treaty People”, so let us turn all eyes on Mi'kma'ki.   We are pleased to present part of her speech which you can find here: https://www.facebook.com/759855656/videos/pcb.1280855755582514/10164845669325657/ 

Thank you for reading. 

Until next time.

 

Team ReconciliAction YEG

 

[1] R v Marshall, [1999] 3 SCR 456. 

[2] The Canadian Encyclopedia, "Marshall Case" (11 April 2020), Online: <https://thecanadianencyclopedia.ca/en/article/marshall-case>.

[3] Vanessa Minke-Martin, "Mi'kmaw Fishery Dispute is Not About Conservation, Scientist Says" (09 October 2020), Online: <https://www.hakaimagazine.com/news/mikmaw-fishery-dispute-is-not-about-conservation-scientists-say/>. 

IBA Reflections: BC First Nations Justice Strategy

Tansi Nîtôtemtik, 

 

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

(Illustration: “Meta” by Jason Sweeney)

 

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

 

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

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

 

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

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

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

 

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

 

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

 

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

Until Next Time,

Team ReconciliAction YEG

 

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

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

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

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

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

⁶ Chief Doug White, supra note 1.

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

⁸ Chief Doug White, supra note 1.

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

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

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).

Joyce Echaquan: Death by Racism

 

Tansi Nîtôtemtik,

 

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

(Image Credit: THE CANADIAN PRESS/Paul Chiasson)

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

 

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

 

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

 

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

 

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

 

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

 

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

(Image Credit: Global News)

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

 

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

 

Until Next Time,

 

Team ReconciliAction YEG

 

 

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

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

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

⁴ Ibid.

⁵ Jesse Feith, supra note 2

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

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

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

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

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

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

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

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

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

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

5 Years After TRC: 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.

In the Media: Political, Institutional, and Community Responses to the MMIWG Final Report

Tansi Nîtôtemtik,

Since its release on June 3, 2019, the political, institutional, social and community responses to the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) have been nearly as various as they are numerous. Today’s post highlights some of the responses of Indigenous, institutional and political leaders. However, it is recognized that today’s post in no way comprehensively describes the full effects and consequences of the deeply moving and complex nature of the Final Report.

Indigenous Voices and Perspectives

Marion Buller, the chief commissioner for the National Inquiry into MMIWG, stated the most important of the Calls for Justice according to those who testified in the Truth Gathering Process were those regarding responsive police services, adequate housing, guaranteed food supply, and clean drinking water.[1] However, much of what the Final Report stated was initially overshadowed by controversial discussion regarding the use of the word ‘genocide’ to describe the disproportionate rates of violence and homicide against Indigenous women, girls, and 2SLGBTQQIA peoples in Canada.

Lorelei Williams, who testified at the MMIWG inquiry as a family member to two lost Indigenous women, said she was grateful for the finding of genocide by the National Inquiry, stating: “The genocide part of it is really speaking out to me... Our people have been through this for a long time, so I’m grateful for that part of it.”[2] However, Lorelei expressed she ultimately does not trust the government to move forward with implementing the Calls for Justice.[3] Some, such as Andrea Landry, an Anishinaabe from Pawgwasheeng, stated the National Inquiry and the Final Report were not what she envisioned and expressed concern about the fact that a “… [c]olonial government can, and will, define, dictate and decide the outcomes of the inquiry… The choice to implement the recommendations within the [Final Report] is ultimately, a political one.”[4] Interestingly, Landry further commented she would have liked to have seen a section for Indigenous leaders and Indigenous communities outlining suggested next steps and highlighting the positive and preventative change already taking place.[5]

Lawyer and activist Pam Palmater also believes the decision to respond to the Calls for Justice is a political one, saying: “[I have] 100% confidence that federal, provincial, and municipal governments have the resources and capacity and ability to [implement the Calls for Justice]. I am very concerned about the political willingness to do it.”[6]

Institutional Responses

Winnipeg Chief of Police Danny Smyth offered an interesting perspective with respect to the Calls for Justice concerning police services. Considering the shortcomings in Canada's system of services relating to Indigenous Peoples, Chief Smyth opined "it is not that big of a stretch" to conclude the lack of resources resulted in genocide.[7] Positively, Chief Smyth reported that changes were already in place for policing services across Canada.[8]  

Political Responses and Action

On June 24, 2019, Prime Minister Trudeau announced the federal government’s 13 million dollar pledge to fund more than 100 projects to honour the lives and legacies of missing and murdered Indigenous women and girls.[9] Shortly following the release of the Final Report, Trudeau also promised to develop a national action plan to address the violence against Indigenous women, girls, and 2SLGBTQQIA people.[10] Crown-Indigenous Relations Minister Carolyn Bennett expressed the perspectives of the Inuit, First Nations, and Metis, in addition to family members, victims and survivors of violence would be consulted in the development of the national action plan.[11] Asked when the national action plan would be rolled out, Bennett commented the plan would be ready when Indigenous people think it is ready.[12]

Artistic Responses

Some responses to the release of the Final Report were artistic in nature, with the intention of remembering and raising awareness for Canada’s missing and murdered Indigenous women and girls. A billboard campaign occurred across Canada in June curated by Artists Against Racism featuring 12 works by Indigenous artists.[13] The executive director of Arts Against Racism, Lisa Cherry stated that many of the 12 cities (Halifax, Kamloops, Edmonton, Vancouver, Montreal, Ottawa, Saskatoon, Regina, Moncton, Toronto, Thunder Bay, and Winnipeg) were chosen according to where Indigenous issues have been the biggest and most problematic.[14] To learn more about the campaign, please visit Eagles Rising.[15]

The Final Report has prompted responses from a cross-section of political, institutional, Indigenous and community leaders and members. While not all responses will be beneficial in nature, the Final Report is sparking much needed dialogue about the crisis of murdered and missing Indigenous women and girls. These conversations, challenging as they may be are well overdue.  

 

Yours Truly,

 

Team ReconciliAction YEG

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[1] CTV News, ‘Power Play: Final MMWIG Report Released’ at 00h:02m:14s in “Key takeaways from the final MMIWG report” (3 June 2019), online (video): CTV News <www.ctvnews.ca/politics/key-takeaways-from-the-final-mmiwg-report-1.4450095> [perma.cc/7P4B-JS5P].

[2] CTV News, ‘Inquiry on Missing and Murdered Indigenous Women’ at 00h:00m:17s in “Key takeaways from the final MMIWG report” (3 June 2019), online (video): CTV News <www.ctvnews.ca/politics/key-takeaways-from-the-final-mmiwg-report-1.4450095> [perma.cc/7P4B-JS5P].

[3] Ibid at 00h:03m:50s.

[4] Andrea Landry, “As An Indigenous Woman I Was Triggered By The MMIWG Report. Here’s What Needs To Happen Now”, Chatelaine (last modified 5 June 2019), online: <www.chatelaine.com/opinion/as-an-indigenous-woman-i-was-triggered-by-the-mmiwg-report/> [perma.cc/3RVN-PXA3].  

[5] Ibid.

[6] CTV News, ‘Power Play: Serious issues need to be addressed’ at 00h:00m:29s in “Key takeaways from the final MMIWG report” (3 June 2019), online (video): CTV News <www.ctvnews.ca/politics/key-takeaways-from-the-final-mmiwg-report-1.4450095> [perma.cc/7P4B-JS5P].

[7] CTV News, ‘CTV National News: Historic Indictment’ at 00h:00m:30s in “Key takeaways from the final MMIWG report” (3 June 2019), online (video): CTV News <www.ctvnews.ca/politics/key-takeaways-from-the-final-mmiwg-report-1.4450095> [perma.cc/7P4B-JS5P].

[8] Ibid.

[9] David Reevely, “Liberals pledge $13M to ‘honour the lives and legacies’ of MMIWG”, Global News (24 June 2019), online: <globalnews.ca/news/5427735/mmiwg-liberals-13-million-pledge/> [perma.cc/92CB-234U].

[10] Rachel Aiello, “No timeline for federal ‘action plan’ responding to MMIWG inquiry”, CTV News (8 June 2019), online: <www.ctvnews.ca/politics/no-timeline-for-federal-action-plan-responding-to-mmiwg-inquiry-1.4457043> [perma.cc/2HN2-QHLB].

[11] Ibid.

[12] Ibid.

[13] Taylor Braat, “National billboard campaign hopes to continue MMIWG conversation”, Global News (last modified 12 July 2019), online: <globalnews.ca/news/5417338/national-billboard-campaign-mmiwg/> [perma.cc/S3CJ-9C97].

[14] Ibid.

[15] “Eagles Rising”, online: Artists Against Racism <artistsagainstracism.org/eaglesrising/> [perma.cc/BBL4-Z25N].

In the Media: Indigenous Candidates and Indigenous Issues in the Federal Election

Tansi Nîtôtemtik,

With the impending federal election nearly upon us, today ReconciliAction YEG highlights Indigenous candidates and provides a brief overview of what each party proposes to offer Indigenous voters if they get voted in on October 21^st.

Indigenous Candidates
The 2015 federal election saw the highest representation of Indigenous candidates to date, with a record-breaking 54 contenders, 10 of whom were elected.[1] As of October 1^st, 2019, Indigenous candidates in this year’s federal election total 42 contenders: 5 each for the Conservative Party of Canada (the “Conservatives”) and the Green Party of Canada (the “Green Party”); 2 running Independent (notably Jody Wilson-Raybould); and 15 each for the Liberal Party of Canada (the “Liberals”) and the New Democratic Party (the “NDP”).[2] At last count, 3 of the 42 are running in Alberta ridings. These include: Desmond Bull of the Louis Bull Tribe of the Maskwacis Nation running for the Green Party in the Maskwacis-Wetaskiwin riding[3]; Maggie Farrington, Chief Executive Officer of the Athabasca Chipewyan First Nation, running for the Liberals in the Fort McMurray-Cold Lake riding[4]; and Katherine Swampy a resident of Maskwacis and councillor for the Samson Cree Nation, running for the NDP in the Edmonton Centre riding.[5]

Party Platforms on Indigenous Issues
Some parties, such as the Conservatives, have yet to release the entirety of their platform with regard to Indigenous issues.[6] According to the National Post the Green Party is the only party to have made an official promise with regard to Indigenous Affairs since the start of the campaign on September 11^th, 2019. The Green Party has stated they will implement the Aalls to Action of both the Truth and Reconciliation Commission of Canada (TRC) and the Calls to Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls.[7] As well, they have promised to re-introduce legislation to enshrine in Canadian law the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).[8]

However, prior to the start of the campaign or as part of their official platform, most of the Parties have declared what they propose to do if they receive the winning vote. Both the Liberals and the NDP have stressed their commitment to implementing the 94 Calls to Action in the TRC Final Report and have made it a goal to lift the drinking water advisories across Indigenous communities in Canada within the elected term.[9]

The NDP and the Green Party have provided the most comprehensive breakdown in their platforms of what they propose to do for Indigenous voters and have touched on the important topics of housing, education, employment and economic development, and investment in public services.[10]

Little is known about the Conservative Party’s stance on Indigenous issues, except that Conservative Leader Andrew Scheer has said he is eager to build an open and positive relationship with Indigenous people.[11] However, he has also confirmed he would seek a judicial review of the Canadian Human Rights Tribunal decision ordering compensation of First Nations children harmed by on-reserve child welfare systems.[12] As the party currently in power, the Liberals are seeking judicial review of the First Nation child welfare compensation.[13]

The People’s Party of Canada has stated their intention to replace the “paternalistic Indian Act”.[14] As well, People’s Party Leader Maxime Bernier has said he wants to look into ways to bring clean drinking water to remote communities and to give Indigenous people individual property rights.[15]

Like the Conservatives, the Bloc Québécois have spoken little on the topic of Indigenous affairs, but they support the implementation of the UNDRIP and have promised to work toward administrative autonomy for Indigenous communities in the areas of education, justice, and culture.[16]

Voter Information
Please visit Elections Canada online to find your voter information, including who’s running, where to vote, and answers to any other voting questions. The 2019 federal election takes place October 21st, but advance voting happens October 10^th, 11^th, 12^th, and 13^th.[17]

The Canadian Broadcasting Corporation (CBC) has also provided a useful guide to voting in the 2019 federal election.[18] For a quick breakdown on how the parties compare on important key areas, including: Indigenous issues, child care, jobs, education, and healthcare, CBC has provided a useful comparison tool at Canada Votes 2019.[19] To explore how your views align with those of the parties, the 2019 Vote Compass can be found here.[20]

 

Yours Truly,

Team ReconciliAction YEG

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[1] Samantha Wright Allen, “‘We need to be at the table’: nominated Indigenous candidates near 2015’s record high”, The Hill Times (7 August 2019), online:  <www.hilltimes.com/2019/08/07/we-need-to-be-at-the-table-nominated-indigenous-candidates-near-2015s-record-high/210654>.

[2] “An Indigenous guide to the 2019 federal election”, CBC News (last modified 4 October 2019), online: <www.cbc.ca/news/indigenous/2019-federal-election-indigenous-candidates-1.5265989>.

[3] “Desmond Bull – Candidate for Maskwacis-Wetaskiwin (74)”, Green Party of Alberta (last visited 4 October 2019), online:<greenpartyofalberta.ca/cand-detail/?ID=74>.

[4] “Maggie Farrington: Your Liberal Candidate for Fort-McMurry-Cold Lake”, Liberal Party of Canada (last visited 4 October 2019), online: <maggiefarrington.liberal.ca>; Robynne Henry, “Farrington throws her name in for federal election”, Bonnyville Nouvelle (10 September 2019), online: <www.bonnyvillenouvelle.ca/article/farrington-throws-her-name-in-for-federal-election-20190910>.

[5] “Katherine Swampy For Edmonton Centre”, New Democratic Party of Canada (last visited 5 October 2019), online: <katherineswampy.ndp.ca>; “Katherine Swampy”, About.me (last visited 5 October 2019), online: <about.me/katherineswampy>.

[6] Olivia Stefanovich & Jorge Barrera, “Scheer’s relationship with Indigenous people is being tested in this election”, CBC News (4 October 2019), online: <www.cbc.ca/news/politics/scheer-conservative-indigenous-approach-2019-election-1.5130380>;

[7] National Post Staff, “Election 2019 platforms: Here’s what the Liberals, Conservatives, NDP and Greens are promising”, National Post (last modified 4 October 2019), online <nationalpost.com/news/politics/election-2019/federal-election-2019-platforms-guide-liberals-conservatives-ndp-green-platform-promises#indigenousAffairs>.

[8] Ibid.

[9] Jorge Barrera, “How do the main parties compare on these issues”, CBC News(last visited 5 October 2019), online: <newsinteractives.cbc.ca/elections/federal/2019/party-platforms/>; “Building A Better Future With Indigenous Peoples”, Liberal Party of Canada (last visited 5 October 2019), online: <2019.liberal.ca/our-platform/>.

[10] “Reconciliation”, New Democratic Party of Canada (last visited 5 October 2019), online: <www.ndp.ca/reconciliation>; “Reconciliation with Indigenous Peoples”, Green Party of Canada (last visited 5 October 2019), online: <www.greenparty.ca/en/platform/reconciliation-with-indigenous-peoples>.

[11] Stefanovich, supra note 6.

[12] Olivia Stefanovich, “Scheer says he’d seek ‘judicial review’ of First Nation child welfare compensation”, CBC News (3 October 2019), online: <www.cbc.ca/news/politics/scheer-trudeau-human-rights-first-nation-child-welfare-1.5307498>.

[13] Barrera, supra note 9.

[14] “Aboriginal Issues: A New Relationship Based on Mutual Respect”, People’s Party of Canada(last visited 5 October 2019), online: <www.peoplespartyofcanada.ca/aboriginal_issues_a_new_relationship_based_on_mutual_respect>.

[15] Ibid.

[16] “An Indigenous Guide”, supra note 2.

[17] “Voting (Home)”, Elections Canada (last visited 5 October 2019), online: <www.elections.ca/home.aspx>.

[18] Haydn Watters, “What you need to know to vote in Canada’s federal election”, CBC News(last modified 4 October 2019), online: <www.cbc.ca/news/politics/canada-voter-guide-2019-federal-election-1.5260336>.

[19] Barrera, supra note 9.

[20] CBC News, “Vote Compass”, CBC News (last visited 5 October 2019), online: <votecompass.cbc.ca/canada/>.

Reflection Post: The KAIROS Blanket Exercise, View from a Facilitator

Tansi Nîtôtemtik,

On Monday, September 9, 2019, the class of 2022 participated in the KAIROS Blanket Exercise. The class of 2022 is the fourth Faculty of Law class to complete the exercise. The Blanket Exercise is a 90-minute experiential workshop that aims to foster understanding about the shared history of Indigenous and non-Indigenous peoples.[1] Throughout the exercise participants get to “walk” through 500 years of the Indigenous Canadian experience, from pre-contact to present.

During a facilitated talking circle following the exercise students were asked to reflect upon two questions:

1. What is one thing you learned? and
2. What is one thing you want to know more about as a result of the exercise?

In one group a number of participants reflected upon the fact that they were unaware that the last Residential School closed in 1996 – the year they were born. Others shared they were unaware of the current devastating social, political and financial disparities between Indigenous and non-Indigenous Canadians. For example, the fact that the rates of suicide among First Nations communities is twice the national average, with Inuit rates being 6 to 11 times higher. When asked about what they wanted to learn, the students collectively expressed a desire to learn more, more about our past and present. Students expressed wanting to know more about reconciliation and the progress being made by Indigenous and non-Indigenous Canadians. They expressed interest in learning more about these issues by taking some of the many Indigenous Law courses offered by the Faculty of Law during the next three years.

The morning concluded with a closing smudge led by the Faculty of Law Elder in Residence Mr. Gilman Cardinal. Elder Cardinal reflected that he had never participated in such a smudge with so many participants. Elder Cardinal shared his hope for the future and that the Seven Generations teachings teach us that we are currently in the fourth generation of healing and have three generations ahead of us.

The Class of 2022 participating in the KAIROS Blanket Exercise is an example of healing. They have the opportunity to be a part of the next generation of lawyers graduating from the Faculty of Law with an awareness of the shared history between Indigenous and non-Indigenous Canadians. And perhaps even more importantly, a desire to ensure our past and present do not become our future.

To learn more about the KAIROS Blanket Exercise visit https://www.kairosblanketexercise.org/.

 

Until Next Time,

 

Team ReconciliAction YEG

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[1] Kairos Blanket Exercise, “The Blanket Exercise” (14 September 2019), online: < https://www.kairosblanketexercise.org/>.

Intro to Indigenous Law and Governance: Why Does This Topic Matter Now?

Tansi Nîtôtemtik,

Indigenous Governance has always, and should always, matter. However, Canadian society has historically viewed Indigenous Peoples as having no national identities, which has translated into a lack of knowledge on the part of the lay person.[1] This lack of knowledge is not where Canada, as a nation, should be.

Although Indigenous Governance should always be discussed, the timing of this topic for our blog is particularly current. There have been numerous media developments in recent years and as recently as the last few months. For example, the two volume Missing and Murdered Indigenous Women and Girls Final Reportwas released on June 3, 2019.[2] Furthermore, at the beginning of August 2019, it was announced that the Indigenous Law and Governance Centre at the University of Alberta would receive federal funding.[3] These two developments are a few of the many current issues and topics surrounding Indigenous Governance that we will be discussing in depth throughout this year. It is evident that the topic of Indigenous Governance is developing rapidly, and being aware of these advancements is essential. Through this blog, we hope to be able to effectively take on the role of conveying this information to you, our reader.

The ultimate goal for Canadian society is to be informed, to live harmoniously amongst one another, and work towards reconciliation. Given the historic societal view of Indigenous Peoples, the average non-Indigenous Canadian has a lot of work to do, and discussions on Indigenous Governance can begin to bridge this gap. There is a large amount of information that needs to be discussed to educate and bring Indigenous culture and Indigenous Governance to the forefront of our social consciousness. As a team this year, we hope to be able to inform our readers and help Canadians develop a better understanding and respect for Indigenous Peoples and their Governance. We are excited to embark on this learning journey with you.

 

Until next time,

 

Team ReconciliAction YEG

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[1]Gregory Younging, Elements of Indigenous Style: A Guide for Writing By and About Indigenous Peoples, (Edmonton, Alberta: Brush Education, 2018) at 77-78.

[2]“National Inquiry into Missing and Murdered Indigenous Women and Girls”, online: MMIWG <www.mmiwg-ffada.ca>.

[3]Folio, “Indigenous Law and Governance Centre at U of A Receives Federal Funding (14 August, 2019), online Folio <www.folio.ca>.

Intro to Indigenous Law and Governance: What is Indigenous Governance?

Tansi Nîtôtemtik,

Having established in our introductions last week that our theme this year is Indigenous Governance, you may now be wondering what exactly is “Indigenous Governance”.

The term “Indigenous Governance” is a term that, on its face, seems rather self-explanatory. To put it very, very simply, “governance” is a term that describes “how society[,] or groups within it, organize to make decisions.”[1]  When you pair this cursory definition of “governance” with the “Indigenous” descriptor, you are left with a phrase that concerns itself with how Indigenous Peoples and their communities organize themselves and make decisions. That is, Indigenous Governance is governance from the Indigenous perspective. It must be emphasized, however, that “governance” is not the same as “government.” Rather, “governance” is a broader concept that is “highly relevant to people and organizations whatever their involvement with government.”[2] As such, “Indigenous Governance” goes beyond the political, extending into and shaping other facets of Indigenous social life, including the private sector and civil society.[3]

And yet, Indigenous Governance is more than simply how Indigenous Peoples make and act on decisions. “Indigenous Governance” is, in fact, a principle that has greater depth, and one which comes with its own complexities and implications.

At its foundation, “Indigenous Governance” involves the recognition that Indigenous Peoples have historically had – and still continue to exercise – their own systems and powers of governance, beyond that of the Canadian State. The fact remains that neither Canada, its government, nor its governance began at the date of Confederation in 1867. Centuries of history occurred on this land long before the white, European colonists arrived. Before European contact, Indigenous Nations were self-sustaining and self-governing, their societies founded on – and governed by – their respective laws, values, traditions, stories, and oral histories.[4] After contact, and through generations of European imperialism, paternalism, and assimilation, these Indigenous systems of self-governance were displaced and eroded by the Canadian State’s own powers of governance.

That is not to say that when we speak of Indigenous Governance, we speak only in the past tense. Today, Indigenous systems and methods of governance are being revived and reignited. Indigenous Governance continues to survive, emerging as an alternative system of governance within Canada, one that is employed by Indigenous Nations and their people, for their communities. Now, in this post-colonial era, “Indigenous Governance” is inherently tied to ideas of Indigenous sovereignty and self-determination, recognizing that Indigenous Peoples are, in fact, their own people, with their own communities, who should have the ability to decide and dictate what is best for them, and how to conduct and organize themselves. Of course, given the diversity of Indigenous Peoples across Canada, what governance looks like and how it is applied varies across each community, and the manner in which it is delivered is dependent on a Nation’s language, history, culture, and legal frameworks. This is the leading reason why it is so difficult to definitively explain what “Indigenous Governance” is, and what it looks like.[5]

That being said, Indigenous Governance does not merely work to organize individual Indigenous communities; such governance also affects Nation-to-Nation relationships, be it between Indigenous Nations themselves, or between Indigenous Nations and the Canadian State. Following this, the study of Indigenous Governance acts as a key piece of the Reconciliation puzzle, as our exploration of the topic will ask us to look back on our histories, encourage us to question how we govern ourselves, and offer us new tools with which to govern, lead, and structure our communities and relationships as we move forward.

 

Until next time,

 

Team ReconciliAction YEG

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[1]Institute on Governance, “What is Governance?”, online: <https://iog.ca/what-is-governance/>.

[2]First Nations Governance Project, “Phase I Governance Report” (August 2018) at 10, online: <https://fnfmb.com/sites/default/files/2018-09/2018_FN-Governance_Project_phase1-low-res_update.pdf>.

[3]Ibid at 10.

[4]There is a story shared by the Chiefs of the Shuswap, Okanagan and Couteau Tribes of BC that explains how the Creator, following the suggestion of the Mole, placed the gift of knowledge of Truth and Justice within Man himself, thereby placing within human beings the power, and freedom, to discover who and what we are, and therefore, how to govern theselves. This story is reproduced in the “Report of the Royal Commission on Aboriginal Peoples: Restructuring the Relationship, Vol. 2” (Ottawa: Ministry of Supply and Services, 1996) at 102-103, online: <http://data2.archives.ca/e/e448/e011188230-02.pdf>.

[5]“Phase I Governance Report”, supra note 2 at 12.

 

Where Do We Go From Here?

Image retrieved from http://artprofsamerica.com/tag/activism/

Tansi Nîtôtemtik,

        Our last week of posts provided an institutional critique of the university as a site where a specific form of colonial knowledge is shaped and sustained. Course content and curricula still prioritize Eurocentric knowledge,[1] and like racialized students, racialized faculty members still face “being marginalized, ghettoized, and tokenized”[2] on a regular basis. Relatively low proportions of non-white faculty means fewer students are “exposed to the particular knowledge that racialized and Indigenous faculty can potentially bring to their teaching,”[3] and even when Indigenous faculty members are hired, they often face higher teaching loads and “a double burden, with expectations to mentor more students and [...] frequent requests to sit on a large number of committees to represent symbolic representation.”[4] Together, these factors combine to make academia extraordinarily arduous for Indigenous scholars.

        The deeper you dig, the clearer it becomes that current “policies and practices to address racism are limited or ineffective.”[5] So what do we do about it?! In The Equity Myth, Malinda S. Smith and her colleagues propose specific solutions to address the challenges described above. To begin with, universities must develop “support mechanisms for racialized and Indigenous faculty that recognize their experiences and the unique demands resulting from cultural taxation which have an effect on their career trajectories.”[6] There needs to be more “policies, data, modes of monitoring and evaluating equity, and practices [created] from a multidimensional rather than a unidimensional perspective.”[7] Even individual faculties have work to do - they must commit to “disrupting established ways of doing things and challenging normative notions of selection, appointment, and promotion.”[8] With a lot of time and even more effort, reforms such as these have the potential to undo the substantive and procedural inequities that exist within Canadian universities.

        But institutional change is slow and hard to come by, and in the meantime, students also a have a role to play in transforming the university classroom from an oppressive space to one of liberation and resistance. Students take what they learn in the classroom and apply it in their communities. Both within the classroom and beyond it, students must be encouraged to take an active role in theorizing new perspectives and making space for change. In law school especially, where students graduate and go on to make, interpret, and apply the law as legislators, lawyers, and judges, we must be empowered to think and act in anti-racist and decolonizing ways.

        Settler and Indigenous students alike can intervene when we witness or experience racism on a personal or structural scale. We can show up for walks to protest violence against Indigenous women. We can stand in at “round dances, flash mobs, and teach-ins,”[9] and add our voices to movements like Occupy Ottawa or Justice for Colten. We can join community groups and participate in discussion series. We can collaborate together on decolonizing projects and use social media to build new relationships and support systems. In taking on the responsibility to genuinely connect our academic work to political purpose and action, we can contribute to shaping a world we actually want to live in.

        I would like to end my time as team lead of ReconciliAction YEG by encouraging all of our readers to go forth and be activists. Create. Resist. Be brave. Speak out when you see injustice. Never stop learning and unlearning. Thank you for an amazing eight months!

Until next time,

Grace Cleveland

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[1] See Frances Henry and Audrey Kobayashi, “The Everyday World of Racialized and Indigenous Faculty Members in Canadian Universities” in Frances Henry, Enakshi Dua, Carl E. James, Audrey Kobayashi, Peter Li, Howard Ramos, and Malinda S. Smith, The Equity Myth: Racialization & Indigeneity at Canadian Universities (UBC Press: Vancouver, 2017) at 131.

[2] Carl E. James and Selon Chapman-Nyaho, “‘Would never be hired these days’: The Precarious Work Situation of Racialized and Indigenous Faculty Members” in Frances Henry, Enakshi Dua, Carl E. James, Audrey Kobayashi, Peter Li, Howard Ramos, and Malinda S. Smith, The Equity Myth: Racialization & Indigeneity at Canadian Universities (UBC Press: Vancouver, 2017) at 91.

[3] Frances Henry, Audrey Kobayashi, and Andrea Choi, “Representational Analysis: Comparing Canada, the United States, the United Kingdom, and Australia” in Frances Henry, Enakshi Dua, Carl E. James, Audrey Kobayashi, Peter Li, Howard Ramos, and Malinda S. Smith, The Equity Myth: Racialization & Indigeneity at Canadian Universities (UBC Press: Vancouver, 2017) at 29.

[4] Howard Ramos and Rochelle Wijesingyha, “Academic Production, Reward, and Perceptions of Racialized Faculty Members” in Frances Henry, Enakshi Dua, Carl E. James, Audrey Kobayashi, Peter Li, Howard Ramos, and Malinda S. Smith, The Equity Myth: Racialization & Indigeneity at Canadian Universities (UBC Press: Vancouver, 2017) at 68-69.

[5] “Conclusion” in Frances Henry, Enakshi Dua, Carl E. James, Audrey Kobayashi, Peter Li, Howard Ramos, and Malinda S. Smith, The Equity Myth: Racialization & Indigeneity at Canadian Universities (UBC Press: Vancouver, 2017) at 298.

[6] Ibid, at 315.

[7] Ibid, at 316.

[8] Ibid.

[9] Margaret Kovach, “Treaties, Truths and Transgressive Pedagogies: Re-Imagining Indigenous Presence in the Classroom” (2013) Socialist Studies 9:1:109-27 at 122.

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