John Edmond

About John Edmond

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

Free of the Colonial Yoke? Not quite!

May 25, 2017 By John Edmond

Jeopardy clue: “The Constitution of this 150-year old country exists as “Schedule B” to an ordinary statute of another country.” Correct response: “What is Canada?”

This is true of what has been for 35 years the most significant part of the Constitution of Canada, the Constitution Act, 1982, Parts I and II of which are, respectively, the Canadian Charter of Rights and Freedoms and Rights of the Aboriginal Peoples of Canada. Between them they have been responsible for many, if not most, of the significant decisions of the Supreme Court of Canada since their proclamation. Yet, the Constitution Act, 1982 owes its very existence to an Act of the British Parliament, namely the Canada Act 1982, numbered as Chapter 11 of the 1982 United Kingdom statutes of the U.K. Parliament. This was the U.K. statute central to patriation, that is to say the process that finally made it possible for our Constitution to be amended by Canadians, without reference to the parliamentary mother. The Constitution Act, 1982 is humiliatingly appended to this statute as, not merely the schedule, but “Schedule B.” We are constantly reminded of this ignoble fact by lawyers and judges who think it necessary to cite the Charter, for example, as follows: “Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11.” As if “Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982” would leave the reader pondering: “Constitution Act, 1982? Oh, I bet that’s the Constitution Act, 1982 that’s Schedule B to the Canada Act 1982, which, as I recall, is Chapter 11 of the 1982 statutes of the United Kingdom.”

I have it on good authority that, some years after 1982, Westminster asked the federal Department of Justice whether the Canada Act 1982, could be repealed, presumably as “spent.” The Canada Act 1982 is a four-section, single page, English-only statute that enacts the Constitution Act, 1982 and abjures further United Kingdom jurisdiction over Canada. Since U.K. statutes may be in English only, the French version of the Act is appended as Schedule A, leaving the central document, the Constitution Act, 1982 itself, to occupy the “B” position.

From its birth in 1867 by Act of the Parliament of the United Kingdom – British North America Act, 1867 (now the Constitution Act, 1867) – Canada was constitutionally a creature of the U.K. Although, by the 1931 Statute of Westminster, the autonomy of Canada and the other self-governing Dominions was recognized, the authority to amend the BNA Act, 1867 remained in London. “Self-governing” it may have been, yet for Canada to effect an amendment to its Constitution, a request had to be directed to Britain. Not including the 1867 Act, no fewer than 14 British North America Acts, as well as numerous other statutes and orders having constitutional effect on Canada, were passed by the U.K. Parliament. Canadian inability to agree on an amending procedure, not British obstinacy, stood in the way of patriation. An excellent and exhaustive account of the more than two decades of effort to get to 1982 is the Honourable Barry Strayer’s Canada’s Constitutional Revolution (2013).

But get there we did. Upon the request and consent of Canada, but not without a good deal of British parliamentary debate not lacking a colonial flavour, the Canada Act 1982 passed in the British Commons on March 8; in the House of Lords on March 25, and received royal assent March 29, becoming chapter 11 of the 1982 U.K. statutes. (Its companions are c. 10, the Industrial Training Act 1982, and c. 12, the Travel Concessions (London) Act 1982.) It became law upon royal assent, but it would hardly do for the Canadian Constitution to come into force in another country on an arbitrary date. Section 58 of the Constitution Act, 1982 cleverly took care of this problem: The Act was to come into force by proclamation of the Queen or Governor General, thus providing for ceremony.

Canadian inability to agree on an amending procedure, not British obstinacy, stood in the way of patriation.The Queen famously signed the Proclamation, on Parliament Hill, Pierre Trudeau seated opposite, on a rainy April 17, 1982. This was a proud moment for our country if more than a century after its birth. It should not be denigrated. But should our constitution forever exist as a schedule to a British Act of Parliament? Was this the only avenue?

Mr. Strayer’s book, thorough as it is, takes it for granted that this was the only lawful route. A unilateral declaration of independence would have been unacceptable as inconsistent with the rule of law. UDI’s typically occur in a hostile context – USA, 1776; Ireland, 1919; Rhodesia, 1965 – and international recognition is problematic, though the 2010 advisory opinion on Kosovo of the International Court of Justice did say that international law contains no “prohibition on declarations of independence.” While a blatant UDI would have been out of the question in our case, there seems to have been no thought of a more co-equal approach, rather than to follow the time-worn path of requesting U.K. approval of the proposed change. Consideration of an altogether different process is beyond the scope of this article (not to mention that of this writer). But it cannot have been beyond legal ingenuity to devise a valid process whereby Britain would abdicate its role and Canada would simultaneously pass a constitution that did not have a permanent umbilical cord attached. A Supreme Court reference on the legality of a proposed procedure might have been a good first step; the court’s imprimatur would ensure that whatever was proposed would survive. A friendly but clear and distinct break with the imperial connection would have produced a truly made-in-Canada constitution.

The Canada Act 1982 is a four-section, single page, English-only statute that enacts the Constitution Act, 1982 and abjures further United Kingdom jurisdiction over Canada. Mr. Strayer reports that the infamous Enoch Powell, then a U.K. MP, pointed to the irony of Canada asking Westminster to abdicate its power over Canada yet legislate major constitutional change. He proposed that Canada should enter into an “internal compact,” apparently similar to that of the United States in 1776. Mr. Strayer’s not altogether convincing answer is that the process followed was “the only way our existing laws will recognize.” One of his chapters has as epigraph the famous words of Martin Luther King Jr., “Free at last! Thank God Almighty we are free at last!” Well, not quite.

I have it on good authority that, some years after 1982, Westminster asked the federal Department of Justice whether the Canada Act 1982, could be repealed, presumably as “spent.” The answer was “No, please do not repeal”. This is a telling answer: it means that the validity of our Constitution is thought by those charged with the issue to continue to rest on a United Kingdom statute. What, indeed, would be the effect of repeal? The statute, and of course its all-important Schedule B, would cease to exist as a matter of British law. Yet the Canada Act 1982 provides that no post-Constitution Act, 1982 United Kingdom Act “shall extend to Canada,” so a U.K. bill of repeal would be ineffective in Canada. Technicalities aside, many Charter, Aboriginal and other matters having been decided, the courts would beyond doubt find that the Constitution stood on its own; the Canada Act 1982 be damned. This would have left the legal puzzle: If the Constitution Act, 1982, is Schedule B to an Act that no longer exists, how should it be known?

The Queen famously signed the Proclamation, on Parliament Hill, Pierre Trudeau seated opposite, on a rainy April 17, 1982. This was a proud moment for our country if more than a century after its birth. This paradox does not arise; Schedule B carries blithely on as United Kingdom law. This will forever shamefully be so. It betrays the very principle for which Pierre Trudeau stood, that of a wholly-Canadian Constitution. But my appeal to lawyers and judges is to stop reminding us of this unnecessary fact at every citation of the Constitution. Perhaps if it is not constantly mentioned, the fact will fall into that legal wasteland known as desuetude. And we will think of our Constitution as entirely our own – even if it isn’t. A resolution for Canada 150.

Call to Action: The Truth and Reconciliation Commission Report

March 1, 2016 By John Edmond

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 20^th 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.

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.

Indian Residential Schools – A Chronology

February 22, 2016 By John Edmond

Beechwood Cemetery Foundation: Great Canadian Profile Plaque

This chronology was compiled to convey, by historic milestones, how the Indian Residential School system came to be, how it embodied attitudes of its time, how critics were dismissed, and how finally the deep harm it did to many members of generations of Indian children was exposed in the course of a reconciliation process that continues. While Canada is doing its best to compensate, in many senses, for the failings of the system, much of the damage to individuals, and to First Nations culture, can never be put right.

1755 – Indian Department created as branch of British military to establish and maintain relations with Indians.

1820 – This decade sees Anglican and Methodist missionary schools established in Upper Canada and Red River settlement.

1842 – Governor General Sir Charles Bagot appoints Commission to report on “the Affairs of the Indians in Canada.”

1844 – Bagot Commission finds reserve communities in a “half-civilized state”; recommends assimilationist policy, including establishment of boarding schools distant from child’s community, to provide training in manual labour and agriculture; portends major shift away from Royal Proclamation of 1763 policy that Indians were autonomous entities under Crown protection.

1847 – Dr. Adolphus Egerton Ryerson, Methodist minister and educational reformer, commissioned by Assistant Superintendent General of Indian Affairs to study Native education, supports Bagot approach (as does Governor General Lord Elgin); proposes model on which Indian Residential School system was built.

1856 – “Any hope of raising the Indians … to the … level of their white neighbours, is yet a … distant spark”: Governor General Sir Edmund Head’s Commission “to Investigate Indian Affairs in Canada.”

1857 – Gradual Civilization Act passed; males “sufficiently advanced in the elementary branches of education” could be enfranchised (they would no longer be “Indians,” and could vote).

1861 – St. Mary’s Mission Indian Residential School, Mission, and Presbyterian Coqualeetza Indian Residential School, Chilliwack, first residential schools in B.C., established.

1862 – Blue Quills Indian Residential School (Hospice of St. Joseph / Lac la Biche Boarding School) established at St. Paul, AB; first residential school on the Prairies.

1867 – Confederation: British North America Act (now Constitution Act, 1867) establishes federal jurisdiction over Indians. Thus, while education is under provincial jurisdiction, Indian matters including education are federal.

Fort Providence and Fort Resolution Indian Residential Schools established; first residential schools north of 60⁰.

1871 – Treaty No. 1 entered into at Lower Fort Garry: “Her Majesty agrees to maintain a school on each reserve … whenever the Indians of the reserve should desire it.” This promise, repeated in subsequent treaties (though hedged in Treaties No. 5 on), reflected desire of Indian leadership to ensure transition of their youth to demands of anticipated newcomer society.

1876 – Indian Act passed into law by Parliament.

1879 – Nicholas Flood Davin, journalist and defeated Tory candidate, commissioned by Prime Minister Macdonald, also Minister of the Interior, to produce proposal for Indian education; visits US industrial schools grounded in policy of “aggressive civilization”; produces Report on Industrial Schools for Indians and Half-Breeds. Four residential schools already operated in Ontario; “mission schools” planned for the west. This date generally taken to mark beginning of Indian Residential Schools, though the system had early predecessors in New France and New Brunswick, and several schools were already operating.

Duncan Campbell Scott, best known later as a “Confederation poet,” joins Indian Affairs at age 17 as “copying clerk,” at direction of Macdonald.

1883 – First industrial school established, at Battleford, modelled on Davin Report.

1885 – Residential schools necessary to remove children from influence of the home only way “of advancing the Indian in civilization”: Lawrence Vankoughnet, Deputy Superintendent General, to Prime Minister Macdonald. Despite treaty promises, reserves lacked schools; removal, often forcible, of pupils to residential schools is option chosen by government.

1890 – Physician Dr. G. Orton reports to Indian Affairs that tuberculosis in the schools could be reduced by half; measures rejected as “too costly.”

1892 – Regulations passed giving control over daily school administration to churches: Catholic, Anglican, Presbyterian, Methodist. (In 1925, Methodists joined most Presbyterians and others to form United Church, which continued to run schools.)

1896 – Programme of Studies issued; stresses importance of replacing “native tongue” with English. Children forbidden to speak their native language, even to each other, and punished for doing so. This continued to be the policy for life of the system.

1904 – Dr. Peter Bryce appointed “Medical Inspector” to the Departments of the Interior and Indian Affairs.

1904 – Minister Sir Clifford Sifton announces closure of industrial schools – large urban institutions – in favour of boarding schools. They are closed over the next two decades.

1907 – Dr. Bryce visits 35 schools; reports appallingly unsanitary conditions, micro-organism-bearing ventilation, high death rates; “the almost invariable cause” is tuberculosis.

“The appalling number of deaths among the younger children … brings the Department within unpleasant nearness to the charge of manslaughter”: Hon. S.H. Blake, K.C., Chair of Advisory Board on Indian Education (partner in what is now national law firm Blake, Cassels & Graydon), to Minister Frank Oliver.

1908 – Indian Affairs Accountant F.H. Paget reports school buildings in bad condition.

1909 – Duncan Campbell Scott appointed Superintendent of Indian Education.

1910 – The children “catch the disease … in a building … burdened with Tuberculosis Bacilli”: Duck Lake Indian Agent MacArthur on the continuing prevalence of tuberculosis.

1912 – “… in the early days of school administration … [t]he well-known predisposition of Indians to tuberculosis resulted in a very large percentage of deaths among the pupils … fifty percent of the children who passed through these schools did not live to benefit from the education which they had received therein”: Scott, in an essay in the authoritative 22-volume Canada and its Provinces.

1913 –Scott appointed Deputy Superintendent General of Indian Affairs (deputy minister), reporting to Minister of the Interior and Superintendent General Dr. William A. Roche.

1919 – Position of Medical Inspector for Indian Agencies and Residential Schools abolished (in the year of the Spanish ‘flu) by order in council on recommendation of Scott “for reasons of economy.”

1920 – “I want to get rid of the Indian problem”: D.C. Scott to Parliamentary Committee. A Scott-instigated amendment to the Indian Act, with church concurrence, compelled school attendance of all children aged seven to fifteen. Though no particular kind of school was stipulated, Scott favoured residential schooling to eliminate the influences of home and reserve and hasten assimilation.

“I am afraid I cannot give a very encouraging answer to the question. We are not convinced that it is increasing, but it is not decreasing”: Prime Minister Arthur Meighen, former Minister of the Interior, on being asked whether tuberculosis was increasing or decreasing amongst the Indians.

1922 – Dr. Bryce publishes The Story of a National Crime: Being an Appeal for Justice to the Indians of Canada, the Wards of the Nation, Our Allies in the Revolutionary War, Our Brothers-in-Arms in the Great War. He charges that, for 1894-1908, within five years of entry 30% to 60% of students had died, an avoidable mortality rate had healthy children not been exposed to children with tuberculosis: A “trail of disease and death has gone on almost unchecked by any serious efforts on the part of the Department of Indian Affairs.” His 1907 recommendations on tuberculosis control not given effect, he says, “owing to the active opposition of Mr. D.C. Scott.”

1923 – “Residential Schools” adopted as official term, replacing “boarding” (55) and “industrial” (16), housing 5,347 children.

1932 – Scott retires as Deputy Superintendent General after more than 52 years in the department. The anthologist John Garvin writes that Scott’s “policy of assimilating the Indians had been so much in keeping with the thinking of the time that he was widely praised for his capable administration.” He embodied a fundamental contradiction: While a rigid and often heartless bureaucrat, “his sensibilities as a poet [were] saddened by the waning of an ancient culture” (Canadian Encyclopedia).

1939 – 9,027 children are in 79 residential schools run by Catholic (60%), Anglican (25%), United and Presbyterian churches. “1939 [was] the approximate mid-point of the history of the system”: John S. Milloy, A National Crime.

1944 – Consensus develops among senior Indian Affairs officials that integration into provincial systems should replace segregated Aboriginal education.

1951 – Indian Act of 1876, with many amendments, repealed; replaced with modernized Indian Act (today’s Act, with amendments) conceptually similar to previous Act.

1955 – Jean Lesage, Minister of Northern Affairs and National Resources, department responsible for Inuit (then known as Eskimos), gets Cabinet approval for broad education policy in North. General policy is to substitute settlements for nomadic life. A school is built at Chesterfield Inlet, followed by Coppermine, and ten “hostels.” Some Inuit had formerly been sent south to Indian Affairs schools. “Destitute” Métis were sometimes also enrolled.

1969 – Indian Affairs takes over sole management of residential schools from churches.

1969 – Indian Affairs Minister Jean Chretien produces assimilationist “White Paper” to abolish Indian status; strongly opposed by Indian organizations. Alberta Indian Association produces Citizens Plus, known as “Red Paper,” in response. White Paper retracted two years later.

1971 – Blue Quills School, St. Paul, AB, becomes first Indian-run school, following month-long contentious occupation by elders and others.

1972 – National Indian Brotherhood (predecessor of Assembly of First Nations) produces Indian Control of Indian Education, advocating greater band control of education on reserves; adopted next year by government.

1975 – Six residential schools close this year; 15 remain.

1976 – NIB proposes amendments to Indian Act to provide legal basis for Indian control of education; rejected by government.

1978 – National Film Board produces first film ever on residential schools: Wandering Spirit Survival School, about a non-traditional school organized by parents who had themselves survived residential schools.

1984 – 187 bands are operating own (day) schools, half in B.C.; rest mainly on Prairies.

1993 – Archbishop Michael Peers, Primate of Anglican Church of Canada, apologizes to survivors of Indian residential schools on behalf of the Church.

1996 – Gordon Indian Residential School, Punnichy, Saskatchewan, closes; last of 139 Indian Residential Schools in Canada.

Royal Commission on Aboriginal Peoples recommends public investigation into violence and abuses at residential schools. Report brings these issues to national attention.

1998 – Government responds to RCAP Report with Statement of Reconciliation, including apology to those sexually or physically abused while attending residential schools, and establishment of Aboriginal Healing Foundation to assist Aboriginal communities to build healing processes that address legacy of system, with $350 million endowment.

2001 – Federal Office of Indian Residential Schools Resolution Canada created to manage and resolve large number of abuse claims filed by former students, resulting in 17 court judgments.

2003 – National Resolution Framework launched, including Alternative Dispute Resolution process, an out of court process providing compensation and psychological support for former students who were physically or sexually abused or had been wrongfully confined.

2004 – Assembly of First Nations (AFN) Report on Canada’s Dispute Resolution Plan to Compensate for Abuses in Indian Residential Schools leads to resolution discussions.

RCMP Commissioner Giuliano Zaccardelli expresses sorrow for the force’s role in the residential school system.

2005 – $1.9 billion compensation package announced to benefit former residential school students.

2007 – Indian Residential Schools Settlement Agreement, largest class action settlement in Canadian history, negotiated and approved by parties, and Courts in nine jurisdictions, implemented. Of the 139 schools ultimately included in the settlement, 64 were Roman Catholic, 35 Anglican, 14 United Church, and the balance other or no denomination. The objective was reconciliation with the estimated 80,000 former students then still living, of over 150,000 enrolled since 1879. Elements are,

Common Experience Payment to be paid to all eligible former students who resided at a recognized Indian Residential School;
Independent Assessment Process for claims of sexual or serious physical abuse;
Truth and Reconciliation Commission;
Commemoration Activities;
Measures to support healing such as the Indian Residential Schools Resolution Health Support Program and an endowment to the Aboriginal Healing Foundation.

Survivors report harsh and cruel punishments, suicides of others, physical, psychological and sexual abuse, poor quality and meagre rations and shabby clothing in the schools, and inability on leaving to belong in either the Aboriginal or larger world. Posttraumatic stress disorder, major depression, anxiety disorder and borderline personality disorder have been diagnosed, and many have criminal records.

2008 – Prime Minister Harper offers formal apology in Parliament for the Indian Residential Schools, in presence of Aboriginal delegates and church leaders. Indian Residential Schools Truth and Reconciliation Commission established June 1, with five-year mandate, later extended to 2015.

2009 – AFN Chief Phil Fontaine meets Pope Benedict XVI at Vatican. Pope Benedict expresses “sorrow” and “sympathy and prayerful solidarity,” but avoids apologizing.

After a rocky start, with resignations of original Commissioners, Truth and Reconciliation Commission begins work under Justice Murray Sinclair, an Aboriginal Manitoba judge who became the province’s Associate Chief Justice in 1988.

2010 – Truth and Reconciliation Commission begins hearings in Winnipeg.

2011 – University of Manitoba president David Barnard apologizes to Truth and Reconciliation Commission of Canada for institution’s role in educating people who operated the residential school system.

2012 – Truth and Reconciliation Commission releases Interim Report; reviews progress, explains statement gathering and document collection process. Tells of degrading treatment, unwarranted punishments, and physical and sexual abuse by “loveless institutions.” Makes numerous recommendations respecting public education about residential schools and about mental health and wellness programs, especially in the North, and that Canada and churches establish a cultural revival fund. Notes mandate to establish a National Research Centre.

Interim Report can be accessed at: http://nctr.ca/assets/reports/TRC/Interim%20report%20English%20electronic.pdf.

Over 105,000 applications for Common Experience Payments were received by Canada by 2012 deadline; over 79,000 were found eligible and paid, the average amount being $19, 412. September 19 was final deadline for Independent Assessment Process claims.

2014 – Commission’s hearings in more than 300 communities wrap up. “National Events,” in Winnipeg, Inuvik, Halifax, Saskatoon, Montreal and Vancouver have been held, as required by the Settlement Agreement, the final one taking place March 27-30 in Edmonton.

2015 – Final year for the Truth and Reconciliation Commission; related events occur:

August 16: Dr. Peter Bryce (1853-1932), author of The Story of a National Crime, is honoured by the unveiling of a plaque in his honour at Ottawa’s Beechwood Cemetery, the National Cemetery of Canada.
November 1: The plaque at Beechwood Cemetery honouring Scott as a poet is modified to include mention of his role in residential schools.
December 15: The final six-volume, 3,231-page TRC report is released. The TRC also produced a summary and five other companion volumes, 2012-15. The summary can be accessed at http://nctr.ca/assets/reports/Final%20Reports/Executive_Summary_English_Web.pdf.
December 18: The Truth and Reconciliation Commission closes its doors. As required by the Settlement Agreement, the National Centre for Truth and Reconciliation opens, with a mandate to hold and make accessible all of the materials gathered by the Commission throughout its mandate. It is located at 177 Dysart Road on the University of Manitoba Fort Garry Campus in south Winnipeg: nctr.ca.

The Nadon Reference: A Unique Challenge

June 30, 2015 By John Edmond

The judgment of the Supreme Court of Canada in the “Nadon Reference,” more elegantly known as Reference re Supreme Court Act, ss. 5 and 6, [2014] 1 SCR 433 is one of the more controversial decisions of the Court in the fairly long list of defeats for the federal government in recent years.

Can Justice Nadon’s appointment stand?

In 2013, the Honourable Marc Nadon was a supernumerary judge of the Federal Court of Appeal (a supernumerary judge of the Federal Courts has a reduced workload, having served 15 years and whose combined age and service total 80, or 10 years of service by age 70). He was nominated to the Supreme Court by Prime Minister Harper and sworn in October 7. His appointment had raised eyebrows. He was semi-retired. His specialities were transportation and maritime law, not frequent topics at the Supreme Court. The place he would occupy had been that of Justice Fish, a criminal law expert. He had been a member of the Quebec bar from 1974 until his appointment to the Federal Court in 1993. He was to fill one of three places on the Court reserved for Quebec by the Supreme Court Act. That same day, his appointment was challenged in the Federal Court as not meeting the criteria for such appointment by the Constitutional Rights Centre and constitutional lawyer Rocco Galati. This was overtaken by a reference by government, of which more later. Justice Nadon decided not to participate in any matters before the Court.

His appointment had raised eyebrows. He was semi-retired. His specialities were transportation and maritime law, not frequent topics at the Supreme Court. The place he would occupy had been that of Justice Fish, a criminal law expert. He was on “nobody’s short list,” said Robert Leckey, McGill Law School. But for Prime Minister Harper, he was the opposite of an “activist” judge: “the strong deference he showed to decisions taken by the Canadian government” “was likely one of the primary reasons” for his appointment, according to Bruce Ryder of Osgoode Hall Law School. His reputation wasn’t enhanced when his claim to have been “drafted by the Detroit Red Wings when I was 14” turned out to be dubious at best.

He had issued a strong – one might say scornful – dissent in a 2009 appeal of a court order requiring Canada to request repatriation of Omar Khadr from Guantanamo Bay (Canada (Prime Minister) v. Khadr, 2009 FCA 246) . Both the order appealed from and his colleagues met his wrath: “Ordering Canada to request the repatriation of Mr. Khadr constitutes, in my view, a direct interference into Canada’s conduct of its foreign affairs. … how Canada should conduct its foreign affairs … should be left to the judgment of those who have been entrusted by the democratic process to manage these matters on behalf of the Canadian people.” In contrast to the view of the majority, even if there were a Charter duty to protect Mr. Khadr, it had not been breached.

Section 5 of the Supreme Court Act provides,

Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.

Section 6 then reads,

At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.

Did this bar Justice Nadon, not a judge of a Quebec court, and no longer an advocate, from being one these three? Six of seven Supreme Court judges said it did. Justice Moldaver emphatically said it did not. Although much of the majority opinion is devoted to historical analysis in support of its conclusion, the disagreement comes down to statutory interpretation – the meaning of a phrase, namely “from among.” According to the majority, the s. 6 criterion “from among the advocates of that Province,” “requires that, at the time of appointment, the appointee be a current member of the Quebec bar with at least 10 years standing” (my emphasis; the ten-year requirement is from s. 5). Where s. 5 permits appointment of persons who are or have been superior court judges or barristers/advocates, s. 6 confines eligibility to those who are currently in one of those categories. They explain, “s. 6 narrows the pool of eligible candidates from the four groups of people who are eligible under s. 5 to two groups who are eligible under s. 6.” Did this bar Justice Nadon, not a judge of a Quebec court, and no longer an advocate, from being one these three? Six of seven Supreme Court judges said it did. Justice Moldaver emphatically said it did not. Federal Court judges formerly members of the Quebec bar are therefore ineligible to take a Quebec place on the court: “The practical effect is that the appointment of Justice Nadon and his swearing-in as a judge of the Court were void ab initio. He remains a supernumerary judge of the Federal Court of Appeal.”

For Justice Moldaver, however, the words “from among” “convey no temporal meaning.” For him, the majority, in applying the ten-year rule, but rejecting “has been [an] advocate”, both in s. 5, are “cherry-picking.” (Arguably, the ten-year rule and the “has been [an] advocate” requirement in s. 5 can be distinguished: The former merely qualifies; the latter – assuming “from among” implies contemporaneity – contradicts.) He points out that, on the majority’s analysis, anyone who had 10 years at the Quebec bar in the past could rejoin for a day and thereby regain eligibility – a point not addressed by the majority: “I find it difficult to believe that the people of Quebec would somehow have more confidence in this candidate on Friday than they had on Thursday” (as scholars Michael Plaxton and Carissima Mathen point out, this can be taken two ways).

The majority found support in the history of the Court: “The eligibility requirements for appointments from Quebec are the result of the historic bargain that gave birth to the Court in 1875.” Restricting Quebec appointments from the Quebec bar to current members “advances [the] dual purpose of ensuring that the Court has civil law expertise and that Quebec’s legal traditions and social values are represented on the Court and that Quebec’s confidence in the Court be maintained.” They reviewed the extensive 1875 parliamentary debates on the creation of the Supreme Court, where Quebec M.P.’s voiced concern that judges not versed in the Civil Code would be deciding Quebec issues. The majority found support in the history of the Court: “The eligibility requirements for appointments from Quebec are the result of the historic bargain that gave birth to the Court in 1875.” Previous bills had reserved no seats on the court for Quebec jurists. The bill was amended to include a proportionate number of civil law-trained judges.

Responding to the argument that no purpose is served by excluding a nominee like Justice Nadon, with civil law training and ten years of past practice, they observed, “The question is not whether civilist members of the federal courts would make excellent judges of the Supreme Court of Canada, but whether they are eligible for appointment under s. 6.” Thus, it all comes down to the meaning of “from among.”

How can the Act be amended?

This case came to the court as a “reference,” that is directly from the federal cabinet without moving through trial and appellate courts. The Supreme Court Act permits the Governor in Council to refer certain “important questions of law or fact” to the court for an “opinion.” Answers to these questions are merely “advisory,” not binding, but in practice are followed. This reference contained two questions. Paraphrased, these asked:

(1) Can a person who was “at any time” a member of the Quebec bar of ten years’ standing be appointed to the Supreme Court? and

(2) Can the Act be amended to permit appointment of previous ten-year members of the bar?

Having answered the first question in the negative, the majority went on to consider constitutional concerns raised by the second. (Justice Moldaver found no need to answer the second question; with his answer to the first, the proposed amendments were redundant.)

Under the Constitution Act, 1982, amendments to “the composition of the Supreme Court of Canada” may be made only with unanimous agreement of Parliament and the provinces.

The majority noted that 1982 “confirmed its status as a constitutionally protected institution” – “confirmed,” not “established.” As the allocation of three places to Quebec is an element of the Court’s composition, the proposed change to s. 6, which provides for the Quebec places on the court, is subject to unanimity. (Justice Moldaver doubted that a change in qualifications of these judges was within “composition of the Supreme Court,” requiring unanimity.) Under the Constitution Act, 1982, amendments to “the composition of the Supreme Court of Canada” may be made only with unanimous agreement of Parliament and the provinces. This assures Quebec, the majority said, “that changes to its representation on the Court would not be effected without its consent.” Thus, the proposed amendment to s. 6 may be made only under the amending procedure of the Constitution, though the proposed amendment to s. 5, the general provision on composition, is “validly enacted” only because it is redundant, amending nothing.

Aftermath

The opinion was controversial in part because the Department of Justice, in advance of the Reference, had asked retired Supreme Court Justice Ian Binnie to consider whether Justice Nadon was eligible. The opinion was released. Mr. Binnie had said he was, in which he was supported by the dean of constitutional scholars, Peter Hogg, and retired Supreme Court Justice Louise Charron. His reading of the history of the Supreme Court Act led him to conclude, “Parliament’s concern has never been with current membership but with a minimum length of experience at the bar.”

Reaction to the court’s opinion was widespread. The University of Ottawa convened a conference. There was a flurry of commentary in the press. Andrew Coyne of the National Post called it “flaky”. Unconcerned why s. 5 contains “has been” but s. 6 doesn’t, he argues that if Parliament had meant, “’from among the current advocates’ [his emphasis] … you’d think it would have said so, not hidden it in the text for six future judges to discover.” The appointment of Justice Nadon, though, was “dubious”: “If ever there were an argument for a more robust process of legislative review of such appointments, this is it.”

Scholars are arrayed on both sides. In an article in Constitutional Forum published before the reference was heard, legal scholars Michael Plaxton and Carissima Mathen critiqued the Binnie opinion. This advisory opinion remains, of course, that of Canada’s highest Court, to be ignored by government at its peril. Foreshadowing the court majority, Plaxton and Mathen take as given that “from among” connotes contemporaneity, charging Binnie with not asking “why the Quebec requirement was imposed in the first place.”

Both Mr. Binnie and Professors Plaxton and Mathen cite as precedent for appointment of Federal Court judges that three Federal Court of Appeal judges, and Madame Louise Arbour, a chief international criminal law prosecutor, were appointed, although their Court is not mentioned in s. 5. Peter Russell, political scientist and constitutional scholar at the University of Toronto, taking on the view that Federal Court experience is always an asset, points out that a Federal Court judge who may not have dealt with the Quebec Civil Code for many years would “have the potential to overturn decisions by [Quebec Court of Appeal] jurists whose everyday life in the law is in Quebec.” Plaxton and Mathen give the more extreme example of someone with ten years at the Bar who “then pursued an altogether different line of work” for, say, 25 years. On the Binnie interpretation, they say, such a person would qualify under s. 5.

What to make of all this? The Court is divided; eminent scholars and former jurists are on opposite sides. Neither view is bullet-proof; while the expansive interpretation can lead to unwanted results, the stricter view would, as Binnie and others would argue, exclude desirable candidates. The majority opinion declined to address the obvious flaw in its conclusion, the one-day-at-the-Quebec-bar opt-in avenue for eligibility. This advisory opinion remains, of course, that of Canada’s highest Court, to be ignored by government at its peril. The only certain conclusion is that no statutory text can, in itself, ensure sound appointments, which leaves us in need, as Andrew Coyne asserts, of a more robust process of review.

The Indian Act: Can it be abolished?

May 7, 2015 By John Edmond

Two simple observations are made so often about the Indian Act as to amount to clichés: That the 1876 Act is still with us, and that it should be “abolished.” The first of these is technically false; the 1876 Act was repealed in 1951, and replaced with the Act we have today, though it has been amended countless times. The Act of today is not Macdonald’s Indian Act, any more than, say, the original Criminal Code of 1893 is still in force. The more interesting question is, to what extent does the Act of today resemble that of 1876 (the implication of critics being that there has been little if any change since 1876)? The question of abolition, known to drafters as “repeal,” is even more complex in its ramifications.

A recent example is from an article by Michael Den Tandt, a national columnist with Postmedia papers, writing on Sir John A. Macdonald: “The bigotry in Macdonald’s speeches is reflected in the 1876 Indian Act, in many places almost word for word. And the Indian Act remains the law of the land in 2015. Though no political party claims to like it, none has made an urgent matter of its abolition. How can that be, if we’re as evolved as we like to imagine?”

The Act of today is not Macdonald’s Indian Act, any more than, say, the original Criminal Code of 1893 is still in force. In 1951, a complete redrafting of the Indian Act was undertaken, the 1876 Act fully repealed and replaced by a statute thoroughly modernized by the standards of the day.

A principal change was to give structure to band governance. While the basic structure of band and reserve were carried forward, a municipal model of governance was adopted: each band would henceforth have a council consisting of one (and only one) chief, and one councillor for every one hundred members, up to 12 councillors, unless the Minister “declared” otherwise “for the good government of the band”. Tenure was two years. The term “Indian” has fallen into disuse in the last couple of decades, in favour of “First Nation,” giving the Indian Act an even more archaic flavour. The reserve could, by vote, have up to six ward-like “electoral sections.” Meeting regulations were made. Councils had powers to make certain by-laws on the use of the reserve, subject to ministerial disallowance; some bands, with approval, could tax, budget and spend. There was an escape hatch: bands could choose to select a chief and council “according to the custom of the band.” With the resurgence in recent years among First Nations of pride in culture and language (LawNow, Jan/Feb 2011), custom selection has become more popular. Opt-in legislation, the First Nations Elections Act, came into force this April. It will allow First Nations that choose it considerably more scope, including four-year terms.

The term “Indian” has fallen into disuse in the last couple of decades, in favour of “First Nation,” giving the Indian Act an even more archaic flavour. When the landmark recognition given “existing aboriginal and treaty rights” in the Constitution Act, 1982 was drafted, “Indian” was the term of choice. By 1999, when 57 bands agreed to establish their own land codes and self-management regimes, the effecting statute was entitled the First Nations Land Management Act, and “First Nations” is now consistent in official usage. The trend is toward independence of management of their own affairs by First Nations, though the road is by no means smooth: witness the rejection by many chiefs of the 2014 education agreement worked out between the Assembly of First Nations and the government, leading to the resignation of the National Chief.

Driven by s. 15 of the Charter, the equality provision, the rule that women but not men lost Indian status by marrying a non-Indian was abolished in 1985. What came to be famously known as Bill C-31 retroactively restored thousands of women to the rolls. Whatever its limitations, the Indian Act is hardly that of 1876.

What is meant by the call for abolition of the Act? What would be the effect of simple repeal, with no replacement legislation – which is what seems to be glibly suggested by some calls for abolition? With the Act repealed, Indians would be in anarchic limbo. Repeal of the Act would not alter the Constitution: They would not simply become citizens of a province or territory, because they would still be “Indians” under s. 91(24) of the Constitution Act. 1867, a federal power – “Indians, and Lands reserved for the Indians” – so excluded from provincial jurisdiction in many respects, but without federal legislation. Similarly, with reserves abolished by repeal of the Act, the legal morass would employ platoons of lawyers and judges for decades.

As with most social issues, simple remedies do not exist. There is no call for repeal from First Nations or their organizations, which may account for the lack of political appetite for change, even with a plan. What is meant by the call for abolition of the Act? What would be the effect of simple repeal, with no replacement legislation – which is what seems to be glibly suggested by some calls for abolition? With the Act repealed, Indians would be in anarchic limbo. Whenever provincial assumption of some program is suggested, First Nation opposition is vehement; special federal status is not to be tampered with. Among the 29 policy topics on the Assembly of First Nations website, “Indian Act” is nowhere to be found. Themes of self-government, program funding, regional and local control of education, and recognition of Aboriginal and treaty rights dominate. The 1996 Royal Commission on Aboriginal Peoples rejected “tinkering with the Indian Act”; instead, “What we propose is fundamental, sweeping and perhaps disturbing – but also exciting, liberating, ripe with possibilities.” Recommendations included recognition of an Aboriginal order of government, with an advisory Aboriginal parliament, but no “tinkering.”

There is an almost 50-year history of nibbling at the edges. The publication in 1967 of the comprehensive Hawthorn Report on Indian economic, social, and educational needs led to a period of consultation on its recommendations. Pierre Trudeau’s first government then came to power; a detailed plan for complete repeal of the Act replaced consultation. Trudeau saw the constitutional separation of Indians as a precedent for Quebec separation, and held that a state should not have treaties with its own people. In 1969, Minister of Indian Affairs Jean Chretien tabled a “Statement of the Government of Canada on Indian Policy” that would have not only repealed the Indian Act but eventually abolished Indian constitutional status: “Legislative and constitutional bases of discrimination must be removed.” This document set out a detailed road map by which Indians would become indistinguishable from other Canadian citizens; “Indian” would effectively disappear from the legal lexicon. Education and health would become provincial responsibilities, though funds were promised to ease the way. Parliament should “take such legislative steps as may be necessary to enable Indians to control Indian lands and to acquire title to them.” The bar to mortgage or sale is a handicap, and would be gone. Treaties would be “equitably ended.” Land claims, on the other hand, “are so general and undefined it is not realistic to think of them as specific claims capable of remedy.” Legal assimilation would be complete.

The Indian response was sharp. They were not just citizens; they were “Citizens Plus,” the title (borrowed from Hawthorn) of what came to be known as the 1970 Red Paper. The “plus” was not to be lost. As citizens of Canada, Indian people had access to the same services as other Canadians, but they also had treaty rights and legislative privileges, including certain tax exemptions. “Only Aboriginals and Aboriginal organizations should be given the resources and responsibility to determine their own priorities and future development lines.” Finally, “The Indian Act should be reviewed, but not repealed. It should only be reviewed when treaty rights issues are settled and if there is a consensus among Aboriginal peoples on such changes regarding their historical and legal rights.”

The plan was abandoned. Following the Supreme Court split decision in Calder in 1973, on whether the Aboriginal title to Nisga’a territory in B.C. had been extinguished, Trudeau accepted that land claims had merit and had to be dealt with. Thus began the modern era of First Nation – government relations. Broad consultation on revising the Act occupied the mid-70s without either First Nations consensus or government agreement. Consultation respecting lands and resources, and issues of title now dominate the landscape. On the legislative side, “sectoral” statutes with focused targets, such as the First Nations Land Management Act, occupy both Aboriginal and government policy makers.

Several broad legislative proposals since 1990 have been rejected as too limited. Only one – a private member’s bill supported by government – has succeeded. The Indian Act Amendment and Replacement Act, initiated by Rob Clarke, MP for the huge majority-Aboriginal northern Saskatchewan riding of Desnethé—Missinippi—Churchill River, himself a member of the Muskeg Lake First Nation, became law December 16, 2014. Its preamble calls the Indian Act “an outdated colonial statute.” Wholesale change is not on the public policy agenda. Aboriginal Affairs minister Valcourt praised the Clarke bill for its “incremental” approach. Overdue changes were made, such as deleting the need for ministerial approval of by-laws and repealing religious and residential schooling references, but the bill was criticized by First Nations for being imposed with insufficient consultation.

The most notable provision requires the minister, “Within the first 10 sitting days of the House of Commons in every calendar year, [to] report to the House of Commons committee responsible for Aboriginal affairs on the work undertaken by his or her department in collaboration with First Nations and other interested parties to develop new legislation to replace the Indian Act.” The minister’s 2015 response in February noted, “there is no clear consensus on a way forward for large-scale, comprehensive change to the Indian Act.” It reviewed modern land claim successes, and focused on legislative and self-government progress from 2006 on. For an annual report, review of the previous decade works only the first time; next year’s will need some 2015 specifics to respond to the obligation to report on “work undertaken … to develop new legislation to replace the Indian Act.” We shall see.

Wholesale change is not on the public policy agenda. Aboriginal Affairs minister Valcourt praised the Clarke bill for its “incremental” approach. Fundamental overhaul, though, has its advocates. In 2000, Tom Flanagan at the University of Calgary published the prize-winning but controversial First Nations, Second Thoughts, followed in 2010 by Beyond the Indian Act: Restoring Aboriginal Property Rights. Flanagan argues, as did the 1969 White Paper, that property rights, meaning individual title to reserve property and the ability to alienate, are central to First Nations prosperity.

Gordon Gibson, assistant to Pierre Trudeau at the time of the White Paper and now a senior fellow at the Fraser Institute, has published A New Look at Canadian Indian Policy: Respect the Collective – Promote the Individual (2009). The White Paper described the constitutional identification of an ethnic group as discriminatory; Gibson calls it “racist.” The reserve system, he writes, is “both a fortress and a prison,” the escape from which is to promote the individual by “giving money to individuals, rather than chiefs, [an approach] ignored by governments.”

A contrary view is that of John Ralston Saul, in The Comeback: How Aboriginals Are Reclaiming Power and Influence (2014). Canada’s Aboriginal peoples, he argues, are a resurgent power due to the emergence of an educated middle class able to take advantage of constitutional rights and favourable court decisions. Haida in 2004, required consultation and, where necessary, accommodation in advance of resource development. Last year’s declaration of Aboriginal title in Tsilhqot’in, with its exclusive right to decide how the land is used and the right to benefit from those uses, has transferred enormous power to at least some First Nations, especially in B.C. In 2005, Mikisew Cree extended the Haida doctrine to the treaty areas of other provinces. Saul points to the engagement of First Nations, often as full partners, in developments such as northern Ontario’s Ring of Fire. All of this is a “comeback” because he sees First Nations reclaiming the place of leadership they had in shaping Canadian attitudes in the country’s early history.

Gibson and Saul are hardly ideological soulmates, but both are correct that calls for a recast of the relationship of government with Aboriginal people are ignored, which may have been Den Tandt’s point. Certainly it is easier for both governments and opposition to deal with issues as they arise than to take on sweeping change.

Aboriginal right – or wrong?

March 8, 2015 By John Edmond

Two eleven-year-old girls from neighbouring First Nations in southwestern Ontario were diagnosed last year with acute lymphoblastic leukemia, a cancer of the bone marrow. Both received chemotherapy, then stopped. One has died. Makayla Sault of the Missisaugas of the New Credit, after eleven weeks, told her parents that the treatments were “killing her,” and discontinued the treatment last spring. She died in January, after following “alternative remedies,” including an $18,000 treatment at the Hippocrates Health Institute in Florida.

The Institute is run by Brian Clement, a “nutrition counsellor” claiming a Ph.D. in philosophy from the University of Science Arts and Technology of Montserrat, where it has been refused medical accreditation. The other young girl can be known only as J.J., by court order. From the Six Nations, she was the subject of a remarkable decision by the Ontario Court of Justice (the provincial court) that found her mother to have a constitutionally-protected right to pursue traditional medicine. Licensed as a “massage establishment,” treatments include cold laser therapy, Vitamin C injections and a strict raw food diet, not to mention Aqua Chi Ionic Footbath, BioEnergy Field Intervention and The Power of The Mind in Getting Well Program™, none of which seems particularly Aboriginal.

According to the First Nation, “Makayla was on her way to wellness, bravely fighting toward holistic well-being after the harsh side effects that 12 weeks of chemotherapy inflicted on her body. Chemotherapy did irreversible damage to her heart and major organs. This was the cause of the stroke.”

But a pediatric oncologist is quoted as saying no drug could have caused a stroke months after the fact: Her death “had absolutely nothing to do with the chemo [and] probably has everything to do with the leukemia coming back.” He explained that cancer cells accumulating in untreated blood make it more viscous, causing clots and so a stroke.

The other young girl can be known only as J.J., by court order. From the Six Nations, she was the subject of a remarkable decision by the Ontario Court of Justice (the provincial court) that found her mother to have a constitutionally-protected right to pursue traditional medicine. J.J. started chemotherapy in August, but her mother withdrew consent after 12 days, having spoken with Clement: “He had the tone of voice where he was so confident. By him saying, ‘Oh yes no problem we can help her,’ that’s the day I stopped the chemo.” The family found the money to attend the Institute in Florida.

The Ontario hospital applied to the Court a few weeks later for an order stating that J.J. was “a child in need of protection,” and requiring her to be returned for treatment. The central principle laid down was, “to be an aboriginal right, an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.” Under the Ontario Child and Family Services Act, “A child is in need of protection where … the child requires medical treatment to cure, prevent or alleviate physical harm or suffering and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, the treatment.” Dr. Breakey, Pediatric Hematologist/Oncologist at McMaster Children’s Hospital in Hamilton, Ontario stated, “this leukemia has an approximately 90% cure rate with the recommended treatment. Without chemotherapy, we are not aware of any survivors of pediatric leukemia.”

The Court found, “The family are committed traditional longhouse believers who integrate their culture into their day-to-day living.” Nevertheless, by the time the proceeding had begun, mother and J.J. had left for Florida.

Was J.J. “in need of protection”? Judge Edward found J.J. “lacked capacity to [discontinue] chemotherapy.” He also observed, “no one … is suggesting [the mother] is anyone but a caring loving parent.” He then considered whether the mother’s decision “to pursue traditional medicine is in fact an aboriginal right” constitutionally protected under s. 35 of the Constitution Act, 1982, as submitted by the Six Nations, a party to the proceeding by court order. (No more explanation is offered for this than “it was felt there was an obvious need for input from … the band.” But only because the band was a party under compulsion did this case come to turn on Aboriginal rights.) He turned to R. v. Van der Peet, a 1996 decision of the Supreme Court of Canada and the leading case on Aboriginal rights. It was about selling fish; typically Aboriginal rights cases are about resource harvesting or disposition. The central principle laid down was, “to be an aboriginal right, an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.”

From a review of the “Haudenosaunee Code of Behaviour for Traditional Medicine Healers” and other evidence, Judge Edward found that “traditional medicine continues to be practised on Six Nations as it was prior to European contact and, in this court’s view, there is no question it forms an integral part of who the Six Nations are.”

But what was the practice sought to be protected as an Aboriginal right? This question forms no part of the judicial analysis; it was sufficient that traditional medicine in general is constitutionally protected. Where one might expect some explanation of how the “in need of protection” definition fails to apply, the decision is silent. The Judge describes the mother’s decision as “steeped in a practice that has been rooted in their culture from its beginnings,” but does not identify the practice. Yet, he acknowledged that J.J. and her mother had left “to purportedly attend an alternative cancer treatment facility in Florida.” What of the Chief Justice’s caution in Van der Peet: “Courts considering a claim to the existence of an aboriginal right must focus specifically on the practices, customs and traditions of the particular aboriginal group claiming the right”? Had the Judge asked for what actual practice protection was sought, the answer would have to have been, “cold laser therapy in Florida.” Without asking this question, he concludes, “I cannot find that J.J. is a child in need of protection when her substitute decision-maker has chosen to exercise her constitutionally protected right to pursue their [sic] traditional medicine over the applicant’s stated course of treatment of chemotherapy.” There is no suggestion in the decision that the mother is expected to return from Florida and commence some form of traditional treatment. Where one might expect some explanation of how the “in need of protection” definition fails to apply, the decision is silent.

Judge Edward relied heavily on the evidence of Dr. Karen Hill, a Six Nations medical doctor, practising on Six Nations in concert with a traditional medicine practitioner. The Haudenosaunee Code of Behaviour acknowledges that traditional medicine is not absolute: “As traditional healers, we commit ourselves to referring our clientele to other healers, doctors, or practitioners whenever we feel another form of care is required.” Avoidance of harm in the exercise of rights was expanded on by Madam Justice McLachlin (not then Chief Justice), who wrote, “Any right, aboriginal or other, by its very nature carries with it the obligation to use it responsibly. Yet there is no record that Dr. Hill was asked whether, given the evidence of Dr. Breakey that chemotherapy had a 90% cure rate and survival was unlikely without it, this may be a case for “another form of care.” Nor was she asked for her view of the $18,000 treatment in Florida in contrast to the Code’s commitment “to using our medicines wisely and respectfully and prohibiting ourselves from selling our medicines or knowledge for commercial purposes or personal gain.”

The Judge was quite selective in his reliance on authority. He repeats Professor Hogg’s observation, in his classic text on constitutional law, that Aboriginal rights, being outside the Charter, are not subject to s. 1 “reasonable limits,” but ignores what Professor Hogg goes on to say, that they are subject to “reasonable regulation.” In fact, the Sparrow decision of 1990, the first Supreme Court of Canada Aboriginal rights decision, held that these rights may be infringed for valid objectives, including those that “prevent the exercise of … rights that would cause harm to the general populace or to aboriginal peoples themselves.” Judge Edward treats the rights as absolute, preventing any consideration of whether an infringement might be justified.

The Judge also ignored critical qualifications by the Supreme Court in Van der Peet. Avoidance of harm in the exercise of rights was expanded on by Madam Justice McLachlin (not then Chief Justice), who wrote, “Any right, aboriginal or other, by its very nature carries with it the obligation to use it responsibly. No one has the “right” to deny the best available medical care to a child. It cannot be used, for example, in a way which harms people, aboriginal or non aboriginal. It is up to the Crown to establish a regulatory regime which respects these objectives,” and, “Conservation, for example, is the condition upon which the right to use the resource is itself based; without conservation, there can be no right. The prevention of harm to others is equally compelling. No one can be permitted to exercise rights in a way that will harm others.”

These cases were about fish. There can hardly be a more valid infringement of an Aboriginal right than conservation of a child, even if the right existed. No one has the “right” to deny the best available medical care to a child. Judge Edward’s decision gives a bad name to Aboriginal rights. For some, it will just confirm prejudices.

For all her commitment to the longhouse traditions, J.J.’s mother was, in her actions, very much in that segment of society that distrusts science, the need for evidence, and authority generally. In another irony, this did not prevent her from turning to the hospital initially, for her child’s diagnosis. We have yet to learn the final outcome of this sad story.

Indian Residential Schools: A Chronology

July 7, 2014 By John Edmond

This chronology was compiled to convey, by historic milestones, how the Indian Residential School system came to be, how it embodied attitudes of its time, how critics were dismissed, and how, finally, the deep harm it did to many members of generations of Indian children was exposed in the course of a reconciliation process that continues. While Canada is doing its best to compensate, in many senses, for the failings of the system, much of the damage to individuals, and to First Nations culture, can never be put right.

1755 – Indian Department created as branch of British military to establish and maintain relations with Indians.

1820 – This decade sees Anglican and Methodist missionary schools established in Upper Canada and Red River settlement.

1842 – Governor General Sir Charles Bagot appoints Commission to report on “the Affairs of the Indians in Canada.”

1844 – Bagot Commission finds reserve communities in a “half-civilized state”; recommends assimilationist policy, including establishment of boarding schools distant from child’s community, to provide training in manual labour and agriculture; portends major shift away from Royal Proclamation of 1763 policy that Indians were autonomous entities under Crown protection.

1847 – Dr. Adolphus Egerton Ryerson, Methodist minister and educational reformer, commissioned by Assistant Superintendent General of Indian Affairs to study Native education, supports Bagot approach (as does Governor General Lord Elgin); proposes model on which Indian Residential School system was built.

1856 – “Any hope of raising the Indians … to the … level of their white neighbours, is yet a … distant spark”: Governor General Sir Edmund Head’s Commission “to Investigate Indian Affairs in Canada.”

1857 – Gradual Civilization Act passed; males “sufficiently advanced in the elementary branches of education” could be enfranchised (they would no longer be “Indians,” and could vote).

1861 – St. Mary’s Mission Indian Residential School, Mission, and Presbyterian Coqualeetza Indian Residential School, Chilliwack, first residential schools in B.C., established.

1862 – Blue Quills Indian Residential School (Hospice of St. Joseph / Lac la Biche Boarding School) established at St. Paul, AB; first residential school on the Prairies.

1896 – Programme of Studies issued; stresses importance of replacing “native tongue” with English. … This continued to be the policy for life of the system.

1867 – Confederation: British North America Act (now Constitution Act, 1867) establishes federal jurisdiction over Indians. Thus, while education is under provincial jurisdiction, Indian matter,s including education, are federal.

Fort Providence and Fort Resolution Indian Residential Schools established; first residential schools north of 60⁰.

1871 – Treaty No. 1 entered into at Lower Fort Garry: “Her Majesty agrees to maintain a school on each reserve … whenever the Indians of the reserve should desire it.” This promise, repeated in subsequent treaties (though hedged in Treaties No. 5 on), reflected desire of Indian leadership to ensure transition of their youth to demands of anticipated newcomer society.

1876 – Indian Act passed into law by Parliament.

1879 – Nicholas Flood Davin, journalist and defeated Tory candidate, commissioned by Prime Minister Macdonald, also Minister of the Interior, to produce proposal for Indian education; visits U.S. industrial schools grounded in policy of “aggressive civilization”; produces Report on Industrial Schools for Indians and Half-Breeds. Four residential schools already operated in Ontario; “mission schools” planned for the west. This date is generally taken to mark beginning of Indian Residential Schools, though the system had early predecessors in New France and New Brunswick, and several schools were already operating.

Duncan Campbell Scott, best known later as a “Confederation poet,” joins Indian Affairs at age 17 as “copying clerk,” at direction of Macdonald.

1885 – Residential schools necessary to remove children from influence of the home only way “of advancing the Indian in civilization”: Lawrence Vankoughnet, Deputy Superintendent General, to Prime Minister Macdonald. Despite treaty promises, reserves lacked schools; removal, often forcible, of pupils to residential schools is option chosen by government.

1890 – Physician Dr. G. Orton reports to Indian Affairs that tuberculosis in the schools could be reduced by half; measures rejected as “too costly.”

1892 – Regulations passed giving control over daily school administration to churches: Catholic, Anglican, Presbyterian, Methodist. (In 1925, Methodists joined most Presbyterians and others to form United Church, which continued to run schools.)

1896 – Programme of Studies issued; stresses importance of replacing “native tongue” with English. Children forbidden to speak their native language, even to each other, and punished for doing so. This continued to be the policy for life of the system.

1920 – “I want to get rid of the Indian problem.” – D.C. Scott to Parliamentary Committee.

1904 – Dr. Peter Bryce appointed “Medical Inspector” to the Departments of the Interior and Indian Affairs.

1904 – Minister Sir Clifford Sifton announces closure of industrial schools – large urban institutions – in favour of boarding schools. They are closed over the next two decades.

1907 – Dr. Bryce visits 35 schools; reports appallingly unsanitary conditions, micro-organism-bearing ventilation, high death rates; “the almost invariable cause” is tuberculosis.

1908 – Indian Affairs Accountant F.H. Paget reports school buildings in bad condition.

1909 – Duncan Campbell Scott appointed Superintendent of Indian Education.

1910 – “I can safely say that barely half of the children in our Indian schools survive to take advantage of the education we are offering them.”: Scott to Major D.M. McKay, Indian Affairs Agent General in B.C.

The children “catch the disease … in a building … burdened with Tuberculosis Bacilli”: Duck Lake Indian Agent MacArthur.

1913 –Scott appointed Deputy Superintendent General of Indian Affairs (Deputy Minister), reporting to Minister of the Interior and Superintendent General Dr. William A. Roche.

1919 – Position of Medical Inspector for Indian Agencies and Residential Schools abolished (in the year of the Spanish ‘flu) by Order- in-Council on recommendation of Scott “for reasons of economy.”

1920 – “I want to get rid of the Indian problem.” – D.C. Scott to Parliamentary Committee. A Scott-instigated amendment to the Indian Act, with church concurrence, compelled school attendance of all children aged seven to fifteen. Though no particular kind of school was stipulated, Scott favoured residential schooling to eliminate the influences of home and reserve and hasten assimilation.

1922 – Dr. Bryce publishes A National Crime: “The Story of a National Crime: Being an Appeal for Justice to the Indians of Canada, the Wards of the Nation, Our Allies in the Revolutionary War, Our Brothers-in-Arms in the Great War.” He charges that, for 1894-1908, within five years of entry 30% to 60% of students had died, an avoidable mortality rate had healthy children not been exposed to children with tuberculosis: A “trail of disease and death has gone on almost unchecked by any serious efforts on the part of the Department of Indian Affairs.” His 1907 recommendations on tuberculosis control not given effect, he says, “owing to the active opposition of Mr. D.C. Scott.”

1923 – “Residential Schools” adopted as official term, replacing “boarding” (55) and “industrial” (16), housing 5,347 children.

1932 – Scott retires as Deputy Superintendent General after more than 52 years in the department. The anthologist John Garvin writes that Scott’s “policy of assimilating the Indians had been so much in keeping with the thinking of the time that he was widely praised for his capable administration.” He embodied a fundamental contradiction: While a rigid and often heartless bureaucrat, “his sensibilities as a poet [were] saddened by the waning of an ancient culture” (Canadian Encyclopedia).

1939 – 9,027 children are in 79 residential schools run by Catholic (60%), Anglican (25%), United and Presbyterian churches. “1939 [was] the approximate mid-point of the history of the system”: John S. Milloy, A National Crime.

1944 – Consensus develops among senior Indian Affairs officials that integration into provincial systems should replace segregated Aboriginal education.

1951 – Indian Act of 1876, with many amendments, repealed; replaced with modernized Indian Act (today’s Act, with amendments) conceptually similar to previous Act.

1955 – Jean Lesage, Minister of Northern Affairs and National Resources, department responsible for Inuit (then known as Eskimos), gets Cabinet approval for broad education policy in North. General policy is to substitute settlements for nomadic life. A school is built at Chesterfield Inlet, followed by Coppermine, and ten “hostels.” Some Inuit had formerly been sent south to Indian Affairs schools. “Destitute” Métis were sometimes also enrolled.

1969 – Indian Affairs takes over sole management of residential schools from churches.

1969 – Indian Affairs Minister Jean Chretien produces assimilationist “White Paper” to abolish Indian status; strongly opposed by Indian organizations. Alberta Indian Association produces Citizens Plus, known as “Red Paper,” in response. White Paper retracted two years later.

1971 – Blue Quills School, St. Paul, AB, becomes first Indian-run school, following month-long contentious occupation by elders and others.

1972 – National Indian Brotherhood (NIB, predecessor of Assembly of First Nations) produces Indian Control of Indian Education, advocating greater band control of education on reserves; adopted next year by government.

1975 – Six residential schools close this year; 15 remain.

1976 – NIB proposes amendments to Indian Act to provide legal basis for Indian control of education; rejected by government.

1996 – Royal Commission on Aboriginal Peoples recommends public investigation into violence and abuses at residential schools.

1978 – National Film Board produces first film ever on residential schools: Wandering Spirit Survival School, about a non-traditional school organized by parents who had themselves survived residential schools.

1984 – 187 bands are operating own (day) schools, half in B.C.; rest mainly on Prairies.

1993 – Archbishop Michael Peers, Primate of Anglican Church of Canada, apologizes to survivors of Indian residential schools on behalf of the Church.

1996 – Gordon Indian Residential School, Punnichy, Saskatchewan, closes; last of 139 Indian Residential Schools in Canada.

1996 – Royal Commission on Aboriginal Peoples recommends public investigation into violence and abuses at residential schools. Report brings these issues to national attention.

1998 – Government responds to RCAP Report with Statement of Reconciliation, including apology to those sexually or physically abused while attending residential schools, and establishment of Aboriginal Healing Foundation to assist Aboriginal communities to build healing processes that address legacy of system, with $350 million endowment.

2001 – Federal Office of Indian Residential Schools Resolution Canada created to manage and resolve large number of abuse claims filed by former students, resulting in 17 court judgments.

2003 – National Resolution Framework launched, including Alternative Dispute Resolution process, an out of court process providing compensation and psychological support for former students who were physically or sexually abused or had been wrongfully confined.

2004 – Assembly of First Nations (AFN) Report on Canada’s Dispute Resolution Plan to Compensate for Abuses in Indian Residential Schools leads to resolution discussions.

RCMP Commissioner Giuliano Zaccardelli expresses sorrow for the Force’s role in the residential school system.

2005 – $1.9 billion compensation package announced to benefit former residential school students.

2007 – Indian Residential Schools Settlement Agreement, largest class action settlement in Canadian history, negotiated and approved by parties, and courts in nine jurisdictions, implemented. Of the 139 schools ultimately included in the settlement, 64 were Roman Catholic, 35 Anglican, 14 United Church, and the balance other or no denomination. The objective was reconciliation with the estimated 80,000 former students then still living, of over 150,000 enrolled since 1879. Elements are:

Common Experience Payment to be paid to all eligible former students who resided at a recognized Indian Residential School;
Independent Assessment Process for claims of sexual or serious physical abuse;
Truth and Reconciliation Commission;
Commemoration Activities;
Measures to support healing such as the Indian Residential Schools Resolution Health Support Program and an endowment to the Aboriginal Healing Foundation.

Survivors report harsh and cruel punishments, suicides of others, physical, psychological and sexual abuse, poor quality and meagre rations and shabby clothing in the schools, and inability on leaving to belong in either the Aboriginal or larger world. Post-traumatic stress disorder, major depression, anxiety disorder and borderline personality disorder have been diagnosed, and many have criminal records.

2008 – Prime Minister Harper offers formal apology in Parliament for the Indian Residential Schools, in presence of Aboriginal delegates and church leaders. Indian Residential Schools Truth and Reconciliation Commission established June 1, with five-year mandate, later extended to 2015.

2009 – AFN Chief Phil Fontaine meets Pope Benedict XVI at Vatican. Pope Benedict expresses “sorrow” and “sympathy and prayerful solidarity”, but avoids apologizing.

2010 – Truth and Reconciliation Commission begins hearings in Winnipeg.

2011 – University of Manitoba President David Barnard apologizes to Truth and Reconciliation Commission of Canada for institution’s role in educating people who operated the residential school system.

2012 – Truth and Reconciliation Commission releases Interim Report (PDF); reviews progress, explains statement gathering and document collection process. Tells of degrading treatment, unwarranted punishments, and physical and sexual abuse by “loveless institutions.” Makes numerous recommendations respecting public education about residential schools and about mental health and wellness programs, especially in the North, and that Canada and churches establish a cultural revival fund. Notes mandate to establish a National Research Centre.

Over 105,000 applications for Common Experience Payments were received by Canada by 2012 deadline; over 79,000 were found eligible and paid, the average amount being $19,412. September 19 was final deadline for Independent Assessment Process claims.

2014 – Commission’s hearings in more than 300 communities wrap up. “National Events,” in Winnipeg, Inuvik, Halifax, Saskatoon, Montreal and Vancouver have been held, as required by the Settlement Agreement, the final one taking place March 27-30 in Edmonton. A closing ceremony is planned for 2015. A final report is expected.

The Oil Sands: Westward – How?

February 28, 2013 By John Edmond

Last summer, I mentioned to our editor that I couldn’t understand why Enbridge chose to route Alberta oil via its Northern Gateway line to Kitimat, with its long and narrow channels to open water, when the Port of Prince Rupert had no such obstacles and was closer to Asia. She told me to find out. Of the three troubling factors about Northern Gateway that I saw at the time, that was the most troubling.

Northern Gateway would send oil sands product almost 1200 km from a collection point at Bruderheim, 60 km northeast of Edmonton, to tidewater at Kitimat at the head of Douglas Channel. 525,000 barrels a day (bpd) of bitumen, thinned with condensate to facilitate flow, would be sent through a 36” line, and 193,000 bpd of condensate would be returned by a 20” line. Thinning is needed because the oil sands don’t produce oil; they give up bitumen, a viscous substance described as like cold molasses, from which crude is produced by upgrading. The lines would be buried a metre underground in a 25 m-wide corridor. Cost is now estimated at $6.5 billion. Shipping from Kitimat would require tankers to negotiate the narrow waters of Douglas Channel to reach open water. Freight has travelled to and from Kitimat by water since an aluminum smelter was built there in the 1950s, but oil is another matter.

Objections to Northern Gateway were three-fold:

It provided a market for the oil sands, which should, environmentalists say, be discouraged;
It was to be a pipeline through pristine wilderness; and
A marine spill is inevitable in the long and narrow Douglas Channel.

I saw the last as the most serious objection. As to the others, whatever one’s judgment of the oil sands, their future does not turn on Northern Gateway’s completion. The merits of their development are a topic in themselves, and not for this article to assess. The pipeline, in part through wilderness to be sure, would be certain to be built to the highest modern standards; Enbridge, embarrassed by spills from older lines, mainly into the Kalamazoo River in Michigan, could hardly afford any risk. Spills may be less of a concern than the effect of a corridor on wildlife. Caribou are reluctant to cross open areas, where wolves lie in wait. Nevertheless, many pipelines already criss-cross this country, as do, of course, transmission and rail lines and highways. It may turn out that the currently vocal but not unanimous First Nation objections can be met and accommodated, or silenced by equity participation. So if the terminus could be moved to the open water of Prince Rupert, perhaps this project would be less the disaster some predict.

Enbridge tells me the Prince Rupert route is “not impossible,” but its litany of engineering hurdles is lengthy. It asserts that a 150 km route down the Skeena River from Terrace would be 65 km longer and entail a 20 km tunnel and a river crossing, and that the route is susceptible to flooding from the Skeena freshet and prone to landslides and seismic activity. It claims negligible navigational risk for Kitimat using double-hulled towed and escorted tankers, and that the narrowest point in a 36 m-deep, 130 km long channel, 1.4 km, does not present undue risk. A Transport Canada review, acknowledging “there will always be residual risk,” has endorsed the scheme. So the trade-off for Enbridge favours Kitimat. It is apparently prepared to weather the gale of objections already raging to the carriage of oil in B.C.’s coastal waters, though last November Al Monaco, the new president, said the decision was not final. For organizations such as Greenpeace, ForestEthics and Ecojustice, and much of the public, any risk in these waters is too great.

In the context of alternative ports, Enbridge’s pipeline competitor TransCanada Corporation has just announced a line to transport B.C. shale gas to a liquid natural gas terminal to be built at Lelu Island, just south of Prince Rupert, probably the closest mainland-accessible point in Canada to Asia. However, it may not follow the Skeena River to its destination. While the route has not been announced, there is speculation, so far unconfirmed, that the line may take a more northerly Nass Valley route to tidewater, then by a long underwater line to the terminal. If TransCanada is indeed considering this expensive bypass of the Skeena for a gas line, Enbridge’s wariness is understandable. Pacific Northern Gas has operated a natural gas line in the Skeena valley since 1968, but it has ruptured from slides more than once. A break in a gas line is not a disaster; the gas dissipates. A large oil spill in a major fast-flowing river is apocalyptic.

A few months ago, there seemed to be just three main issues. Since then, things have gotten more complicated. The federal government has become ever more determined to find off-shore markets for Canadian crude since the completion of TransCanada’s Keystone XL line to the Texas gulf coast was put in doubt by the U.S. election. President Obama’s emphasis on the environment in his inauguration speech did not help. The possibility of off-shore sales would result in a major increase in revenue; the current price for Alberta oil is well short of the world price because of the “captive market discount”: the market is landlocked to central North America. 99% of Canada’s crude oil exports are to the U.S. The Globe and Mail reported recently that the price for Canadian heavy oil was nearly $37 (U.S.) below the North American benchmark West Texas Intermediate, resulting, according to Alberta’s Energy Minister Hughes, in a subsidy to the U.S. of $20 to $30 billion annually. The development of “fracking,” hydraulic fracturing, whereby previously unavailable hydrocarbons are now recovered by the injection of water under high pressure to induce their release, has led the International Energy Agency to predict that the U.S. will become “all but self-sufficient in net terms” in energy by 2030. Though environmentalists tell us that fracking will lead to contaminated water tables and aquifers, it is now widely practised, and U.S. self-sufficiency is not good news for Alberta. Given the importance of the oil sands to Canada’s current economy, bad news for Alberta is bad news for Canada.

First Nation objections to Northern Gateway have the most impact. Under the consultation and accommodation obligation on government laid down in 2004-05 by the Supreme Court (see LawNow November/December 2007), First Nations must be consulted in advance of any activity that might adversely affect their Aboriginal right to hunt or carry out other traditional activities, and valid concerns must be reasonably accommodated. These will be formally identified in the National Energy Board and Canadian Environmental Assessment Agency’s Joint Review Panel process. While the duty to consult and accommodate is the Crown’s, to be carried out prior to granting any authority to proceed, in practice a proponent will typically offer a variety of advance inducements to secure Aboriginal support. While Enbridge declines to disclose detail, its public position is that it expects its offers of equity positions to attract the support it desires. It also funds participation in the consultation process. Under the Supreme Court’s doctrine, First Nations do not have a veto, but court challenges to the adequacy of consultation and appropriateness of accommodation could tie matters up for years. The issue is further complicated by the perhaps sincerely-held but incorrect belief that the UN Declaration on the Rights of Indigenous Peoples, is binding in Canada. Canada’s endorsement in the absence of ratifying legislation has no legal force (see LawNow March/April 2011), but may have a good deal of political weight.

Northern Gateway has attracted much of the public’s attention, not to mention opposition, perhaps because it was the first proposal to connect Alberta to Asia. Enbridge, though, is by no means alone in trying to fill that need – if indeed it is a need. Oil sands objectors would vehemently disagree. Kinder Morgan, a huge Houston-based energy company, operates the 1150 km Trans Mountain oil pipeline that has transported both crude and refined oil in “batches” at 300,000 bpd since the 1950s. In January, Kinder Morgan announced plans to expand and twin Trans Mountain to 890,000 bpd. As the only existing oil pipeline to Canada’s west coast, expansion has a great competitive advantage over a new line. The corridor and terminal already exist, though expansion to increase capacity three-fold would be an undeniably major project. Nevertheless, the environmental assessment and aboriginal consultation requirements for expansion within an existing corridor would be far less than for the new largely wilderness corridor needed for Northern Gateway – “brownfield,” as they say, rather than “greenfield.” A major issue would be the increase in tanker traffic the full length of Vancouver Harbour – Burnaby to English Bay – from five vessels a month to 34, more than one a day. The proposal can be expected to meet stiff opposition in the Lower Mainland. Kinder Morgan’s spill record is less than perfect: it won’t help that six hours elapsed before an operator attended to a 90,000-litre spill at its Sumas tank farm in the Fraser Valley a year ago. As a “mere” upgrade, Trans Mountain has so far evaded much scrutiny, criticism remaining focussed on Enbridge. The least that can be said now is that Northern Gateway has a full set of challenges, both for approvals and from competition.

Pipelines are not the only route to offshore markets. Some odd alternatives are mooted. A First Nations-endorsed company called G Seven Generations Ltd. wants to build a 2,400 km rail line to haul oil from Fort McMurray to connect with the Alaska North Slope line to Valdez, Alaska, where it would take advantage of existing infrastructure and supplant the apparently declining supply of Alaska crude. G7G claims a single track could carry an incredible three times the capacity of Northern Gateway, and says it has major support for the route. Rail is a less efficient, more costly, more polluting and far riskier means of shipping oil than pipelines, but has acquired appeal for shippers as a result of environmental opposition to pipelines, as well as its flexibility in moving oil quickly to markets to which no pipeline exists. The advantage of building an $8.4 billion rail line to Alaska when CN’s line through Edmonton to Prince Rupert presumably stands ready is not obvious. G7G’s answer may be that only a dedicated line would have the needed capacity. In any case, rail is another competitor to Northern Gateway. So are proposals to move oil eastward by new or redirected pipelines, either to Churchill or to Saint John – closer to India, it has been pointed out, than is Kitimat. Finally, the Alberta government has recently said it would like to see a refinery built in the province, though in March 2012 it rejected a First Nations proposal to build one. This would increase revenue and produce jobs, and eliminate the shipping of bitumen and the twinning of lines, though the major cost of refinery construction makes it unlikely. In August, David Black, a B.C. newspaper magnate, proposed a refinery for Kitimat, though nothing has been heard of this since. Certainly crude is safer to ship than bitumen, but it makes sense to upgrade at the initial stage rather than the midpoint, if only to obviate the need for twin lines.

Like so many Canadian energy projects, Northern Gateway cannot escape constitutional wrangles. British Columbians see more risk than reward in a new pipeline, especially given the tortuous Douglas Channel route to the Pacific. B.C. Liberal Premier Christy Clark, facing an election in mid-May in which she will have an uphill fight against the NDP headed by Adrian Dix, has to balance Aboriginal opposition and the strong environmental sympathies of many British Columbians with the pro-development weight of the business lobby. Clark, arguing that the rewards are Alberta’s while the risks fall to B.C., famously demanded a share of Alberta’s royalties as the price for allowing Northern Gateway to proceed. Premier Redford told her to get lost, at which point she turned to Enbridge for compensation based on the risk to B.C. Clark wants to gain enough from Enbridge to ensure the survival of her government. Dix is resolutely opposed. The federal government badly wants access to Asia for Alberta oil, so if Dix becomes premier and sticks to his guns, a federal-provincial battle is inevitable. While the overall project is federally regulated, many provincial permits will be required at various stages. Under s. 92.10 (a) of the Constitution Act, 1867, works connecting provinces are excluded from provincial jurisdiction. If, however, Ottawa were to dispute the permitting authority B.C. will certainly attempt to assert, the Conservatives will see a donnybrook to rival that of the National Energy Program of 1980, this time alienating B.C. to favour Alberta.

Despite the array of obstacles, Enbridge appears to be confident of NEB – or Cabinet – approval. Beyond the $300 million the review process is said to be costing, it plans to gamble another $150 million on pre-approval engineering studies. Under the Canadian Environmental Assessment Act, 2012 (part of omnibus “budget” Bill C-38), Cabinet can now approve a project rejected by the NEB. Asked about the government’s position on Northern Gateway, Prime Minister Harper, in a startling conversion, promised that any decision would be based on “science.” One is entitled to be sceptical; as one right-leaning columnist put it recently, “the Conservatives [have] revealed an almost monomaniacal obsession with easing resource extraction for purposes of bolstering future economic growth.”

Increasingly, though, the focus is shifting to a Canada-wide petroleum strategy. Northern Gateway is now far from the only game. Premier Redford has called for a national energy strategy, though she insists on calling it “Canadian” to stress the role of the provinces. Gil McGowan, President of the Alberta Federation of Labour, has argued for oil being sent to central and maritime Canada. Not to be left behind, Enbridge plans to reverse the flow in its “Line 9” from Sarnia to Montreal to allow western crude now reaching Sarnia to be refined in Quebec. Natural Resources Minister Oliver says this would show eastern Canadians the benefits of Alberta oil sands development. TransCanada, too, is considering converting its underused 1950s-built “Mainline” gas line from Alberta to the east to oil. It is reported to be exploring the economics of supplying China from Canada’s Atlantic seaboard. In a speech in May, David Dodge, former Bank of Canada Governor, said Northern Gateway faces too many obstacles, and Alberta oil should be shipped east. In June, Frank McKenna, former premier of New Brunswick and deputy chair of TD Bank Group, called for a coast-to-coast pipeline. Regions would no longer be at odds; “each region would be a winner.” Pointing to the irony that eastern refineries process only imported oil, while Canadian oil is captive to discounted U.S. prices, he argued that a national oil connection would be the 21st century equivalent of the C.P.R. This would eliminate reliance on imported oil, yet provide for export of surplus. The economics of this await analysis. Perhaps Canada will yet choose to upgrade our resources so that we will no longer be known as just hewers of ore and drawers of oil.

About John Edmond

See Indian Residential Schools – A Chronology

Can Justice Nadon’s appointment stand?

How can the Act be amended?

Aftermath

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