Call to Action: The Truth and Reconciliation Commission Report - LawNow Magazine

Call to Action: The Truth and Reconciliation Commission Report

St Eugene Mission storm-cropped

Credit: Troy Hunter

For over a century, generations of Aboriginal children, mostly First Nations, were taken from their families, often by force, and placed in residential schools usually far from home, where they were to be assimilated into white society. For most of that time, the schools were run by churches: Roman Catholic, Anglican, Methodist, Presbyterian and United. They were not allowed to speak their own language even to each other, and many were abused physically and often sexually at the hands of their “caregivers.” The experience itself was emotional abuse. The last school closed in 1996, by which time about 150,000 children had been through the system. Many died of tuberculosis in the early 20th century; posttraumatic stress disorder, major depression, anxiety disorder, borderline personality disorder, criminal records, and suicide have been the lot of others. Some, such as Phil Fontaine, former head of the Assembly of First Nations, came through to become Aboriginal leaders.

As the Truth and Reconciliation Commission has put it,

For children, life in these schools was lonely and alien. Buildings were poorly located, poorly built, and poorly maintained. The staff was limited in numbers, often poorly trained, and not adequately supervised. Many schools were poorly heated and poorly ventilated, and the diet was meagre and of poor quality. Discipline was harsh, and daily life was highly regimented. Aboriginal languages and cultures were denigrated and suppressed. The educational goals of the schools were limited and confused, and usually reflected a low regard for the intellectual capabilities of Aboriginal people. For the students, education and technical training too often gave way to the drudgery of doing the chores necessary to make the schools self-sustaining. Child neglect was institutionalized, and the lack of supervision created situations where students were prey to sexual and physical abusers.

Losing their children for months at a time to a far-away institution was not what the chiefs had in mind, when, between 1871 and 1906, they signed treaties to read that schools would be maintained on reserves whenever the Indians of the reserve desired it. This was despite Prime Minister John A. Macdonald’s 1883 statement in the House of Commons (speaking as Superintendent General of Indian Affairs):

When the school is on the reserve the child lives with its parents, who are savages; he is surrounded by savages, and though he may learn to read and write his habits, and training and mode of thought are Indian. He is simply a savage who can read and write. It has been strongly pressed on myself, as the head of the Department, that Indian children should be withdrawn as much as possible from the parental influence, and the only way to do that would be to put them in central training industrial schools where they will acquire the habits and modes of thought of white men.

See Indian Residential Schools – A Chronology

The history of residential schools came to public attention from the 1996 report of the Royal Commission on Aboriginal Peoples, which recommended an investigation. In 2007, a class action brought by former students resulted in the Indian Residential Schools Settlement Agreement, one element of which was that a Truth and Reconciliation Commission would be convened.

The Report, it must be said, is optimistic. It looks, laudably, to the future: “Reconciliation is not about ‘closing a sad chapter of Canada’s past,’ but about opening new healing pathways of reconciliation that are forged in truth and justice.” The Commission, consisting of Manitoba Associate Chief Justice Murray Sinclair, Chief Wilton Littlechild and Dr. Marie Wilson began work in 2009.

The Commission issued an interim report in 2012, which contained 94 recommendations. These have come to the fore since the 2014 election campaign in which now-Prime Minister Justin Trudeau promised full implementation of the recommendations. The government has since reiterated the promise of full implementation. This promise warrants closer examination.

The Commission released its Final Report in 2015, describing the schools assimilation policy as “cultural genocide.” It comprised six main and five supplementary volumes (including the 2012 Interim Report). The Commission then closed down, its legacy to be continued by a “National Centre for Truth and Reconciliation” based at the University of Manitoba. Its recommendations are collected in a volume entitled Calls to Action. They are extremely wide-ranging, from calls to the Pope to apologize in Canada, to calling upon medical and nursing schools to require all students to take a course that includes the history and legacy of residential schools. Neither these, nor many other calls, are within federal power to implement.

The 94 Calls fall into 22 categories, grouped under two main headings: “Legacy” and “Reconciliation” Legacy Calls appear to arise directly from experiences related to the Commission in its hearings, and include Child Welfare, Education, Language and Culture, Health, and Justice. Reconciliation Calls are generally more detailed, implementation of which, in the Commission’s view, would lead to reconciliation of Aboriginal people with the Canadian population. They include such proposals as a “Covenant of Reconciliation,” a National Council for Reconciliation, Church apologies, and a National Day for Truth and Reconciliation as a statutory holiday.

For the purpose, however, of analysing how the government might keep its promise to implement all of these recommendations, topics are less useful than is power to implement, which is to say legal jurisdiction respecting each. This article will not examine each Call to Action, many of which are commendable and would likely lead to both an increase in reconciliation of Aboriginal peoples with the Canadian populace and also significant improvement in the lives of many First Nations people. Rather, our focus is on the ability, and indeed in some cases, the advisability, of the federal government implementing all of them.

Many of the Calls to Action are within the sole jurisdiction of the federal government to implement, by the exercise of its constitutional jurisdiction to legislate; or simply by a policy decision. Of the latter, the Commission calls on the government to investigate the issue of missing and murdered Aboriginal and girls, and also consider “links to the intergenerational legacy of residential schools.” The government is now planning a mandate to undertake this massive and nebulous task. The National Chief of the Assembly of First Nations writes that “systemic root causes … must be addressed, factors that perpetuate poverty and discrimination [are in need of] concrete recommendations.” It may be answered that many, if not all, of these factors are well-known; it is political will, not facts and recommendations, that is lacking. The political pressure for this inquiry is enormous, but it may only delay action on known remedies.

Among the many excellent recommendations, there are oddities. An example of sole federal jurisdiction is Call number 6, to repeal s. 43 of the Criminal Code, sometimes known as the “spanking” provision because it authorizes the use of reasonable force by parents and teachers “by way of correction.” One may ask whether the Commission oversteps its mandate by recommending a step affecting not just Canada’s Aboriginal people, but especially all Canadian parents and teachers – particularly in the face of a recent Supreme Court decision upholding the provision. Should this be implemented – even if it can be – without a larger discussion?

The first of the Commission’s ten principles of reconciliation is, “The United Nations Declaration on the Rights of Indigenous Peoples is the framework for reconciliation at all levels and across all sectors of Canadian society.” Accordingly, the Calls to Action are replete with references to the Declaration. Perhaps the most bizarre Call within federal jurisdiction is number 94, to include in the Oath of Citizenship for new Canadians the following: “… I will faithfully observe the laws of Canada including Treaties with Indigenous Peoples, and fulfill my duties as a Canadian citizen.” A treaty, though of constitutional force, is not a “law.” Laws create obligations on citizens; treaties create only obligations between the signatories. How would one answer a sincere and diligent new Canadian who asks, “What must I do to observe these treaties?”

Nine of the 94 recommendations would require federal legislation; another 40 require federal policy decisions not involving other levels of government (these include funding decisions that would ultimately require Parliamentary legislative approval). Thirty Calls to Action would involve provincial, territorial, and in some cases Aboriginal and municipal governments, sometimes together with the federal government. One worthwhile such recommendation is Call number 1, that all levels commit to reducing the number of Aboriginal children in care: five steps are listed, including the provision of resources to keep families together in “culturally appropriate environments,” subject to safety considerations.

Another 15 call on non-governmental public bodies to make changes. Groups called on are:

  • post-secondary institutions;
  • the health care system, medical and nursing schools;
  • law societies and law schools;
  • “church parties to the Settlement Agreement” (the agreement by which the Commission came into being);
  • “all religious denominations and faith groups,”
  • Canada Council for the Arts;
  • Aboriginal Peoples Television Network;
  • Canadian journalism programs and media schools;
  • officials and host countries of international sporting events; and
  • Canada’s corporate sector.

For education programs, these Calls would serve to increase awareness of the residential schools issue in some way. Although the United Nations Declaration of the Rights of Indigenous Peoples is not law in Canada (see LawNow 35-4, Mar-Apr 2011), no doubt medical students should at least be aware of Article 24, which asserts the right of indigenous peoples “to their traditional medicines and to maintain their health practices” and that “Indigenous individuals have an equal right to the enjoyment of the highest attainable standard of physical and mental health”. It is difficult to see what role the federal government could play in most of these Calls.

Commendably, the Law Society of Upper Canada has recently produced specific material for First Nations, Métis and Inuit people on “Handling Everyday Legal Problems,” in Ontario indigenous languages as well as English and French. The Law Society of B.C. has said, “The report is a call to action. The Law Society encourages all lawyers in British Columbia to read the report of the Truth and Reconciliation Commission and to consider how they can better serve the Indigenous people of British Columbia.” No doubt other law societies are taking similar steps.

The first of the Commission’s ten principles of reconciliation is, “The United Nations Declaration on the Rights of Indigenous Peoples is the framework for reconciliation at all levels and across all sectors of Canadian society.” Accordingly, the Calls to Action are replete with references to the Declaration. Number 43 is pivotal, on which all others turn. It calls on not just federal, but all levels of government “to fully adopt and implement” the Declaration “as the framework for reconciliation.” All the others are subsidiary, because as matters stand Canada has endorsed, but not ratified the Declaration, so it is not binding in Canada. The Commission wants it fully adopted and implemented, which means binding. The consequences, especially in connection with resource and infrastructure development, warrant serious consideration. To begin, can the plans of the new government for major and prompt (physical) infrastructure funding live with a ratified UNDRIP?

Article 32 of UNDRIP includes the following:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

Among the many excellent recommendations, there are oddities.In its 2005 Mikisew Cree decision, the Supreme Court established that First Nation interests extend well beyond reserve lands; the doctrine of consultation and necessary accommodation applies “in relation to the territories over which a First Nation traditionally hunted, fished and trapped …” But, “consultation will not always lead to accommodation, and accommodation may or may not result in an agreement,” so there is no First Nations veto.

Virtually all of Canada is land on which First Nations or other Aboriginal people traditionally hunted, fished or trapped. Were UNDRIP to become the law of Canada, would UNDRIP’s “their lands or territories” mean traditional lands as defined by the Supreme Court? Probably – it would be meaningless if it merely meant lands now owned. To give the terms of the Declaration precise meaning in Canadian law could require years of litigation and probably more than one Supreme Court decision, while projects remain on hold. And nowhere does UNDRIP mention “veto.” But if “free and confirmed consent” is required but not given, is the effect a veto? If the answer is yes, a highway, transmission line or pipeline of national importance could be blocked by the absence of consent of one Aboriginal group whose traditional lands it crossed – or perhaps there would at best be a significant toll to be paid.

At a recent Bar Association conference, a speaker advocating UNDRIP rejected the notion that the Declaration converted “free, prior and informed consent” into a veto. But, he went on: “Consent is the decision of the rights holder” and means the right to say “no”. The Commission is more nuanced: “Free, prior and informed consent in international law is applied in proportion to the potential for harm to the rights of Indigenous peoples and to the strength of these rights.” If the government proceeds to make the Declaration binding, it may find other of its commitments more difficult to fulfill. And ultimately, this issue will be addressed by Canadian courts.

The Commission released its Final Report in 2015, describing the schools assimilation policy as “cultural genocide.” In 2005, for a unanimous Supreme Court, Mr. Justice Binnie opened his reasons in Mikisew Cree thus: “The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests and ambitions.” Reconciliation is, of course, one of two dominant and connected themes of the Truth and Reconciliation Commission Report – telling the truth about what happened being the other. The Commission defines reconciliation as an ongoing process of establishing and maintaining respectful relationships.” It elaborates,

To the Commission, “reconciliation” is about establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country. For that to happen, there has to be awareness of the past, acknowledgement of the harm that has been inflicted, atonement for the causes, and action to change behaviour.

The Report, it must be said, is optimistic. It looks, laudably, to the future: “Reconciliation is not about ‘closing a sad chapter of Canada’s past,’ but about opening new healing pathways of reconciliation that are forged in truth and justice.” It offers great hope that this can occur.

In its volume 6, Reconciliation, the Commission sets out many excellent practical proposals for the achievement of that end, virtually all directed at non-Aboriginals: Educational institutions of all kinds, museums, archives, churches, the corporate sector; no one is left out. The TRC mandate describes reconciliation as “an ongoing individual and collective process, and will require commitment from all those affected including First Nations, Inuit and Métis former Indian Residential School (IRS) students, their families, communities [and non-Aboriginal people and entities].” Yet it is difficult to escape the conclusion that the Commission sees the entire task of achieving reconciliation to fall to non-Aboriginals, who must be educated on the history of residential schools so as to “shift understanding and alter worldviews.” This is a commendable objective. But absent from the enterprise is any call on Aboriginal peoples themselves to rise beyond victimhood, terrible as many of their experiences were, in order to join in the reconciliation process. Undeniably, the fault lies with past governments and its officials, churches, and those who knew but did nothing. Nevertheless, where are the calls for commitment by former students, their families and communities, contemplated by the mandate? Where is the call, for instance, on the Assembly of First Nations to develop proposals to remedy the dysfunction in so many remote communities? For First Nations, the AFN should lead. Education is key to progress, but in many communities lacking anything but a welfare economy, the best will leave. Nothing in the Report addresses this crucial problem.

The history of residential schools came to public attention from the 1996 report of the Royal Commission on Aboriginal Peoples, which recommended an investigation.The Commission has made the United Nations Declaration on the Rights of Indigenous Peoples the centrepiece of its recommendations. It may be that many will never be implemented. The Report is certainly exhaustive in its reach; one wonders whether, had it been somewhat less ambitious, more focussed on a few critical goals, it would have a greater chance of success. Will, for example, Canadian museums undertake a national review to determine their level of compliance with UNDRIP, assuming, as called for, they received earmarked federal funding for the purpose? Will law schools move their optional Aboriginal Law courses to the mandatory group of fundamental courses along with Contract Law, Torts, and Criminal Law?

The doctrine of consultation and accommodation introduced by the Supreme Court in the Haida case in 2004 has lifted the economies of many First Nations. Indeed, some claim that it is responsible for the diminished interest among some B.C. First Nations in pursuing land claim negotiations – why give up traditional lands for a one-time payment, when accommodation can produce employment, ongoing payments and equity in development? The slow progress of these negotiations is criticized by the Commission, but it may have a rational economic basis. When that doctrine is already so helpful, the introduction of the “consent” principle to development, with all its attendant legal issues and probable delays, might well turn out to be fatal to the proverbial goose.

It should not need to be said that levels of funding for Aboriginal health, education, child care, and social needs generally should at least match funding levels in adjacent provinces and territories. Abstract issues of principle are less likely to affect the lives of ordinary Aboriginal people than attention to these basic needs. It is to be hoped that the magnificent effort by the Commission and its staff in producing so many recommendations, with thoughtful, thoroughly elaborated rationale will at least produce a better life for these people. If the federal government is inclined to implement recommendations of the Commission, it would do well to first ask how a given recommendation will help an Aboriginal person to live a better life.

 

Authors:

John Edmond
John Edmond is a member of the bars of Ontario and British Columbia. He lives in Ottawa.
 


A Publication of CPLEA