Canada’s Native Languages: !e Right of First Nations to Educate !eir Children in !eir Own Languages
David Leitch*
Introduction Now, there is no more distinguishing feature of most cultures than their languages. Nor is Canada used to consider itself not only there a more meaningful way for a country to a bilingual, but also a bicultural country.1 recognize and preserve any of its constituent Biculturalism was based on the idea that cultures than to constitutionalize the right to Canada had two founding cultures, the educate children in the language of that culture French-language culture dominant in Quebec at public expense. !at is precisely the right and the English-language culture dominant that Mr. Trudeau delivered to the English and everywhere else, with French and English French minorities of Canada through section minorities scattered across the country. !is 23 of the Canadian Charter of Rights and view of Canada obviously failed to recognize Freedoms.4 Moreover, as will been seen, the both the Aboriginal cultures that existed Supreme Court of Canada has unequivocally prior to European contact and the cultures of a"rmed that the main purpose of this right is those immigrants who came to Canada with to preserve and promote the cultures associated no knowledge of French or English or with with those languages. knowledge of those languages but otherwise distinguishable cultures. In other words, Canada’s brand of multiculturalism does not place all cultures Prime Minister Pierre Trudeau appeared on an equal footing. !e Charter may protect to announce the death of biculturalism in 1971 all cultures and languages from governmental when his government introduced the policy of interference,5 but it only explicitly gives the right multiculturalism. He declared at that time that to publicly funded education to Canada’s o"cial Canada no longer had any “o"cial” cultures.2 language minorities, that is, the anglophone But this only replaced the old #ction with a minority inside Quebec and the francophone new one. In the same term of o"ce in which minorities located in other provinces and Mr. Trudeau denied the existence of o"cial territories. cultures, he passed a law recognizing French and English as Canada’s o"cial languages.3 Despite what is provided for in the Charter, this paper nevertheless asks whether Canada’s First Nations also have the constitutional right to educate their children in their own languages
Constitutional Forum constitutionnel 107 at public expense. It attempts to answer this Further, Her Majesty agrees to pay the salary question by examining the following sub- of such teachers to instruct the children of said issues: Indians as to Her Government of Canada may seem advisable, when said Indians are settled 1. How has education in Aboriginal languages on their Reserves and shall desire teachers.9 been governed since Confederation? !e vagueness of the historical treaties is 2. Even if it is not their constitutional right, explained by a comment found in the body of can and should Canada’s First Nations have Treaty No. 10, signed in 1906: the legislated right to educate their children As to education, the Indians were assured in their own languages at public expense? that there was no need for special stipulation 3. Does section 35 of the Constitution Act, over and above the general provision in the 1982 constitutionalize this right? treaty, as it was the policy of the government to provide in every part of the country as far as 4. If so, what is the value of this constitutional circumstances would permit, for the education right to First Nations? of the Indian children, and that the law provided for schools for Indians maintained !e paper refers brie$y to the international and assisted by the government.10 law implications of the question posed, but Despite the vagueness of the historical proposes an answer based entirely on Canadian treaties, the federal government had very constitutional law. !at choice is deliberate: de#nite ideas about the kinds of schools it while the reader might disagree with the intended to provide. Under predecessors to the paper’s interpretation of domestic law, there current Indian Act,11 the government embarked can be no dispute that, properly interpreted, upon a century-long attempt to assimilate native that law applies in Canada and binds Canadian children by placing up to one third of them governments.6 (approximately 100,000) in residential schools under the direct control of Anglican, Catholic, How Has Education in Aboriginal Presbyterian, and Methodist churches. Over 100 such schools were established in all but Languages Been Governed Since two provinces. Contrary to the treaties, these Confederation? schools were not always located on reserves. Even if they were, Aboriginal children were Pre-confederation treaties between Ab- isolated from their families and communities, original and non-Aboriginal peoples were for were forbidden to speak their native languages, peace and friendship. Upon Confederation in and were severely punished for doing so. !e 1867, the federal government acquired exclusive Annual Report of the Department of Indian jurisdiction over “Indians, and Lands reserved A!airs in 1895 outlined the goal of residential for the Indians.”7 Between 1871 and 1923, the schools: “If it were possible to gather in all the federal government entered into an addition- Indian Children and retain them for a certain al thirteen treaties with First Nations, eleven period, there would be produced a generation numbered treaties and the two “Williams” trea- of English-speaking Indians, accustomed to the ties. !e text of these historical treaties8 dealt ways of civilized life.”12 primarily with the creation of Indian reserves and the maintenance of Aboriginal hunting Since the closing of the last residential and #shing rights. Education for Aboriginal schools in the early 1980s, the federal children was mentioned only in the numbered government has not passed any legislation treaties, and then only in the vaguest of terms recognizing the right of First Nations to and never with any reference to the language of educate their children in their own languages. instruction. Treaty No. 7 was typical: It has, instead, allowed Indian school boards greater control over the 500 or more on- reserve schools. !is increased autonomy has
108 Volume 15, Number 3, 2006 been achieved through a combination of block silent on the language of education. Of course, funding arrangements13 and bilateral transfer since the Supreme Court of Canada’s decision agreements between individual bands and the in Marshall 1,16 the interpretation of treaties Department of Indian A%airs and Northern is no longer restricted to the written text. Development. Canadian Heritage, another Extrinsic evidence of the historical and cultural branch of the federal government, also funds context, as well as oral representations and Aboriginal language initiatives undertaken by understandings, may be also considered even both local and national Indian organizations. in the absence of any ambiguity on the fact of !ese bureaucratically controlled measures the treaty. It would, therefore, be open to a First have permitted some First Nations to educate Nation to present oral evidence establishing their children in their own languages. !ey have that on its understanding of the agreement not, however, given First Nations an enforceable reached, the treaty included its right to educate right to educate their children in their own its children in its own language. languages, and they have not imposed on the federal government an enforceable obligation to However, it must be acknowledged that fund such education. such evidence might not be available, might prove to be ambiguous, or might even suggest Since education is a matter of provincial or the opposite conclusion. In the "omas case, territorial jurisdiction in Canada,14 it may be the trial judge observed: thought that any federal legislation establishing those kinds of rights and obligations would In the present case, evidence was given by the Chief of the Peguis Band, that according to oral be unconstitutional. It would not. Aboriginal tradition, the purpose of the education clause languages are incontrovertibly located at the in Treaty No. 1 was to provide educational core of “Indianness.” Education of Aboriginal services to the Indians to enable them to children in those languages has, therefore, compete with non-Indians in the post-Treaty always remained within the primary, if not the era.17 exclusive, authority of the federal government. Yet, the federal government has never asserted !is type of evidence would, arguably, its full legislative authority in this area. On the support a #nding that the First Nation contrary, the federal government has equipped understood and accepted that its children would itself with the power to e%ectively delegate learn things that would “enable them to compete this authority to the provinces and territories. with non-Indians,” including, presumably, Under section 88 of the federal Indian Act, the non-Indian languages. Indeed, the historical federal government can simply adopt, without context might also support a #nding that, at any federal legislation, “all laws of general the time the treaty was entered into, the First application in force from time to time in any Nation was still unaware of both the potential province” and make those laws “applicable threat to the survival of its own language and to and in respect of Indians in the province.” the potential need, generations later, to ensure According to the Supreme Court of Canada, the survival of the language by teaching it to this section authorizes the federal government children in schools established under the treaty. to “incorporate by reference” provincial laws of In any event, even if a court accepted that oral general application even when the application or other evidence supported a #nding that an of those laws to Indians alters or impairs their historical treaty included the First Nation’s right “Indianness.”15 Section 114 of the current Indian to educate its children in its own language, that Act still permits the federal government to enter #nding would be based on the evidence in that into agreements with provinces and territories case and would not necessarily assist other First for the education of Indian children. Nations. It would clearly not assist First Nations who never entered into treaties with Canada or It is true that section 88 does not permit the United Kingdom. provincial laws to override treaty rights but, as noted, the text of the historical treaties was
Constitutional Forum constitutionnel 109 It is also true that recent education and any one or more of the languages recognized self-government agreements in three provinces under o"cial languages statutes. !ere are ten have recognized the right of First Nations to o"cial languages in the Northwest Territories: determine the language of education of their Cree, English, French, Gwich’in, Inuinnaqtun, children. Here again, however, the implementa- Inuktitut, Inuvialuktun, North Slavey, South tion of that right is achieved through a combi- Slavey, and Taîchô. !ere are eight o"cial nation of federal and provincial laws, which are languages of Nunavut: Chipewyan, Cree, limited to the Indian bands and the provinces Dogrib, English, French, Gwich’in, Inuktitut, in question. Not unexpectedly, the result is a and Slavey. In the Yukon, the Minister of patchwork of laws across the country that may Education may authorize an educational be summarized as follows. program or part of an educational program to be provided in an Aboriginal language a&er In seven of the ten provinces, English and receiving a request to do so from a School French are the only languages of instruction Board, Council, school committee, Local in public schools. !is is the case in Alberta, Indian Education Authority or, if there is no Manitoba, New Brunswick, Newfoundland and Local Indian Education Authority, from one of Labrador, Ontario, Saskatchewan, and Prince the Yukon First Nations recognized under the Edward Island. In these provinces, Aboriginal federal Yukon First Nations Self-Government languages may be the subject of study in publicly Act.27 funded schools attended by Aboriginal children, but First Nations have no right to educate their children in their own languages. Even If It Is Not !eir In three of the ten provinces — Nova Scotia, Constitutional Right, Can and British Columbia, and Quebec — agreements on Should Canada’s First Nations Have education or self-government give certain First the Legislated Right to Educate Nations the right to determine the language of education of their children in publicly funded !eir Children in !eir Own schools. In Nova Scotia, this is accomplished Languages at Public Expense? through a federal statute and a provincial statute, First Nations are not properly regarded as both called the Mi’kmaq Education Act.18 In “minorities” in Canada. !ey are instead peoples British Columbia, it is accomplished through whose ancestors inhabited North America long a federal statute and a provincial statute, both before European contact. Indeed, this fact was called the Nisga’a Final Agreement Act,19 and accepted as the foundation of Aboriginal rights through the federal Sechelt Indian Band Self- by the Chief Justice of the Supreme Court of Government Act20 and the provincial Sechelt Canada in 1996 the leading case of R. v. Van der Indian District Enabling Act.21 In Quebec, it is Peet: accomplished through the federal Cree-Naskapi 22 (of Quebec) Act, the provincial Act Respecting In my view, the doctrine of aboriginal rights Cree, Inuit and Naskapi Native Persons,23 and exists, and is recognized and a"rmed by the provincial Charter of the French Language.24 s. 35(1), because of one simple fact: when First Nations in these three provinces who Europeans arrived in North America, are not covered by these laws have no right to aboriginal peoples were already here, living in educate their children in their own language in communities on the land, and participating publicly funded schools.25 in distinctive cultures, as they had done for centuries. It is this fact, and this fact above !ere are three territories in Canada: all others, which separates aboriginal peoples the Northwest Territories, Nunavut, and the from all other minority groups in Canadian society and which mandates their special legal, Yukon. Under the education statutes of both 28 the Northwest Territories and Nunavut,26 the and now constitutional, status. language(s) of instruction are determined by District Education Authorities, who may choose
110 Volume 15, Number 3, 2006 !is paper will presently turn to the ques- French-language schools and, in one province, tion of whether section 35(1) of the Constitution prohibited instruction in French for a period of Act, 198229 constitutionalizes the right of First time.33 Immigrant children have always been re- Nations to educate their children in their own quired to learn, if they did not already know it, languages at public expense. However, it must the language of instruction of Canada’s public #rst be emphasized that even if, contrary to the schools. But residential schools were again dra- views expressed later in the paper, this right matically di%erent. !ey did more than teach has not been constitutionalized, it still can and Aboriginal children English or French; they should be recognized through ordinary federal isolated those children from their families and and provincial legislation. communities for the express purpose of destroy- ing their knowledge of their own languages and In theory, this kind of legislation would be cultures. In these circumstances, it is not enough open to attack by minority languages groups on that residential schools were eventually closed or the ground that it violates their right to equality that some residential school victims may even- 30 under the Charter. In practice, section 25 of the tually recover damage awards for their language Charter pre-empts such attacks by stipulating losses.34 First Nation communities should now that the Charter cannot be used to “abrogate or be given the legislated right to educate their chil- derogate from any aboriginal, treaty or other dren in their own language at public expense. rights . . . that pertain to the aboriginal peoples of Canada.”31 !is means that even if the right !ere is a third reason to accord First Nations of First Nations to educate their children in their this right. By doing so, Canada would conform to own languages is not a constitutional right, it the emerging international standards set by other is still possible for that right to be created and countries with indigenous populations, such as implemented by ordinary federal and provincial the United States, Finland, and New Zealand.35 legislation and, hence, included in the expression “other rights . . . that pertain to the aboriginal peoples of Canada.”32 As such, the legislated right Does Section 35 of the Constitution would be sheltered from attack by other minority Act, 1982 Constitutionalize the language groups seeking the same right. Right of First Nations to Educate As for the reasons why Canada’s First Nations !eir Children in !eir Own should have the legislated right to educate Languages? their children in their own languages at public expense, there are at least three. First, of Canada’s Our topic requires us to examine the import #&y-three native languages, all but three – Cree, of the #rst three subsections of section 35 of the Inuktitut, and Obijway – are extinct or will soon Constitution Act, 1982,36 as set out below. !e cease to exist unless they are taught to the children fourth and last subsection of section 35 reads as and grandchildren of the dwindling numbers of follows: “Notwithstanding any provision of this people who still speak them. !ese languages may Act, the aboriginal and treaty rights referred to also be spoken in the United States, but are under in subsection (1) are guaranteed equally to male equal, if not greater, threat of extinction. !e and female persons.”37 While this provision is near-death status of most Aboriginal languages obviously important, it is not, in the present makes their situation dramatically di%erent from context, capable of generating serious legal that of other languages in Canada, all of which debate. are spoken elsewhere in the world. Second, the precarious state of most Ab- original languages is a direct result of residen- tial schools. No other cultural group in Canada has been subject to a state-sponsored attempt to eradicate its language. English-speaking pro- vincial governments have o&en refused to fund
Constitutional Forum constitutionnel 111 (A) Section 35(1): “!e existing aboriginal !e Court also required that the pre-contact and treaty rights of the aboriginal peoples practice, custom, and tradition “have continuity of Canada are hereby recognized and with” the present-day practice, custom, and 43 a"rmed.” tradition claimed as an Aboriginal right. According to the Supreme Court of Canada’s Since every human society has created 1990 decision in R. v. Sparrow, this subsection its own language, it might be argued that an constitutionalizes “existing aboriginal and Aboriginal society’s need to communicate treaty rights.”38 Given the potential di"culties was equivalent to its need to “eat to survive,” and limitations of arguments based on treaty and that its language could not, therefore, be rights, as noted above, this paper focuses on described as distinctive to its culture. However, whether First Nations still possess “existing in Van der Peet, the Court was careful to aboriginal rights” to educate their children in emphasize that Aboriginal rights are de#ned by their own languages. !is question raises two their “distinctiveness,” not their “distinctness.” issues: (1) Did First Nations ever have that It gave the following example drawn from its “Aboriginal right”?; and (2) Did they still have it previous decision in Sparrow: in 1982, when section 35(1) was adopted? Certainly no aboriginal group in Canada (i) Did First Nations ever have the could claim that its culture is “distinct” or “Aboriginal right” to educate their children in unique in #shing for food; #shing for food is their own languages? something done by many di%erent cultures and societies around the world. What the !e leading case on the de#nition of Musqueam claimed in Sparrow . . . was rather “Aboriginal rights” is again the Supreme Court that it was #shing for food which, in part, made of Canada’s 1996 decision in R. v. Van der Peet.39 Musqueam culture what it is; #shing for food !e Court there noted that Aboriginal rights was characteristic of Musqueam culture and, were recognized by the common law prior therefore, a distinctive part of that culture. to 1982. !e Court stated that their further Since it was so it constituted an aboriginal right under s. 35(1).44 recognition under section 35(1) was “directed towards the reconciliation of the pre-existence It might also be argued that the education of aboriginal societies with the sovereignty of children in schools was foreign to Aborigi- of the Crown.”40 For constitutional purposes, nal societies prior to contact with Europeans. the Court adopted the following de#nition of !is may well be true, particularly in relation to Aboriginal rights: “the practices, traditions and reading, writing, and other academic subjects. It customs central to the Aboriginal societies that is nonetheless certain that Aboriginal societies existed in North America prior to contact with educated their children in their own languages the Europeans.”41 in their own ways, successfully transmitting those languages from generation to generation Beyond this basic de#nition, the Court held prior to European contact. According to the that in order to be “central” to the Aboriginal Van der Peet decision, Aboriginal rights are not society in question, the activity had to be to be denied just because Aboriginal societies “integral” to its “distinctive culture”: “adapted” their practices, customs, and tradi- !e court cannot look at those aspects of tions in response to the arrival of Europeans. the aboriginal society that are true of every It is only “where the practice, custom or tradi- human society (e.g., eating to survive), nor tion arose solely as a response to European in- can it look at those aspects of the aboriginal $uences” that it fails to meet the standard for society that are only incidental or occasional recognition as an Aboriginal right.45 Looked at to that society; the court must look instead from this perspective, Aboriginal societies are to the de#ning and central attributes of the 42 entitled to adapt their teaching methods with- aboriginal society in question. out losing their Aboriginal right to continue teaching their children in their own languages. As the Court observed:
112 Volume 15, Number 3, 2006 !e evolution of practices, customs and decisions in this area have always emphasized traditions into modern forms will not, provided the link between the right to educate children that continuity with pre-contact practices, in a particular language and the maintenance customs and traditions is demonstrated, 46 of the distinctive culture associated with that prevent their protection as aboriginal rights. language. !e most eloquent description of that Moreover, when considering the e%ect of link is found in the 1990 decision of Mahe v. 49 residential schools, it is important to note the Alberta, in which Dickson Chief Justice wrote Court’s willingness to overlook certain breaks and quoted as follows: in “continuity” between pre-contact and !e general purpose of s. 23 is clear: it is to present-day practices, customs, and traditions. preserve and promote the two o"cial languages !e Court rejected the need for proof of “an of Canada, and their respective cultures, by unbroken chain of continuity,” stating: ensuring that each language $ourishes, as far as possible, in provinces where it is not It may be that for a period of time an aboriginal spoken by the majority of the population. group, for some reason, ceased to engage in a !e section aims at achieving this goal by practice, custom or tradition which existed granting minority language educational rights prior to contact, but then resumed the to minority language parents throughout practice, custom or tradition at a later date. Canada. Such an interruption will not preclude the establishment of an aboriginal right.47 My reference to cultures is signi#cant: it is based on the fact that any broad guarantee of Finally, the Van der Peet decision makes it language rights, especially in the context of impossible to argue that Aboriginal rights can education, cannot be separated from a concern only be asserted in relation to physical resources for the culture associated with the language. such as land, game, or #sh, and not in relation Language is more than a mere means of to intellectual resources such as languages. !e communication, it is part and parcel of the Court wrote: identity and culture of the people speaking it. It is the means by which individuals Aboriginal rights arise from the prior understand themselves and the world around occupation of land, but they also arise from them. !e cultural importance of language the prior social organization and distinctive was recognized by this Court in Ford v. Quebec cultures of aboriginal peoples on that land. In (Attorney General): considering whether a claim to an aboriginal right has been made out, courts must look at Language is not merely a means or both the relationship of an aboriginal claimant medium of expression; it colours the to the land and at the practices, customs content and meaning of expression. It and traditions arising from the claimant’s is, as the preamble of the Charter of the distinctive culture and society. Courts must French Language itself indicates, a means not focus so entirely on the relationship of by which a people may express its cultural aboriginal peoples with the land that they identity.50 lose sight of the other factors relevant to the identi#cation and de#nition of aboriginal !ere is no reason to believe that the rights.48 Supreme Court of Canada would regard education in Aboriginal languages as less It must be acknowledged that the Supreme important for the distinctive cultures of First Court of Canada has yet to comment on the Nations than education in English and French status of Aboriginal languages under section for the distinctive cultures of Canada’s o"cial 35(1). It has, however, decided numerous cases language minorities. involving section 23 of the Charter. As will be recalled, this is the section of the Charter (ii) Did First Nations still have the that gives o"cial language minorities the “Aboriginal right” to educate their children in constitutional right to educate their children in their own language in 1982, when section 35(1) their own language at public expense. !e Court’s was adopted?
Constitutional Forum constitutionnel 113 Section 35(1) constitutionalizes only “ex- case of Delgamuukw v. British Columbia, the isting aboriginal . . . rights.” Since there were Supreme Court held that even when provincial no relevant constitutional amendments prior laws are “adopted” by the federal government to 1982, the Aboriginal rights of First Nations under section 88 of the Indian Act,54 that continued to exist therea&er unless they were section “does not evince the requisite clear and extinguished prior to 1982 either by treaty or by plain intent to extinguish aboriginal rights.”55 federal legislation. Dealing #rst with extinguishment by (B) Section 35(2): “‘[A]boriginal peoples of treaty, it is settled law that any ambiguities or Canada’ includes the Indian, Inuit and Métis doubtful expressions in the wording of trea- peoples of Canada” ties must be resolved in favour of the Indians. !is subsection is of particular signi#cance In its 1996 decision in R. v. Badger, the Court for the Métis, people of mixed Aboriginal and reiterated that “any limitations which restrict European ancestry. !e Van der Peet decision the rights of Indians under treaties must be anticipated that the Aboriginal rights of this 51 narrowly construed.” !e historical treaties group would have to be de#ned di%erently contemplated the establishment of schools, but than those of the Indian and Inuit peoples. In they placed no restrictions on the language of its 2003 decision in R. v. Powley,56 the Supreme instruction and did not, therefore, extinguish Court con#rmed that because the Métis people the right of First Nations to educate their chil- developed their own identity and ways of life dren in their own languages. a&er the European arrival, their Aboriginal As for pre-1982 federal laws, the Sparrow rights could not be fairly de#ned using the pre- decision held that such laws could extinguish European contact test adopted in Van der Peet. Aboriginal rights only if they manifested a Instead, the Court enunciated the following test “clear and plain intention” to do so.52 Just as for the de#nition of Métis Aboriginal rights: there has never been a federal law recogniz- [!eir] unique history can most appropriately ing the right of First Nations across Canada to be accommodated by a post-contact but pre- educate their children in their own languages, control test that identi#es the time when neither has there ever been a federal law ex- Europeans e%ectively established political and pressly extinguishing this right. !e policies legal control in a particular area. !e focus of residential schools were obviously inconsis- should be on the period a&er a particular tent with the exercise of that right, but these Métis community arose and before it came were policies, not laws, and they did not a%ect under the e%ective control of European laws all First Nations in the same way. Indeed, in and customs. !is pre-control test enables us to identify those practices, customs and Sparrow, the Court held that even valid federal traditions that predate the imposition of laws restricting or regulating Aboriginal rights European laws and customs on the Métis.57 did not extinguish those rights. !e Court ob- served that incorporating such laws into a sec- !e Métis language, Mitchif, a blend of tion 35 analysis would freeze a “constitutional French, Cree, Ojibway, and Dene is, therefore, patchwork quilt” re$ecting nothing more than an Aboriginal language for the purposes of the the di%erent ways the Aboriginal rights of dif- present inquiry. ferent First Nations happened to be regulated in 1982 or before. !e Court again declared: (C) Section 35(3): “For greater certainty, “!e phrase ‘existing aboriginal rights’ must be interpreted $exibly so as to permit their in subsection (1) ‘treaty rights’ includes evolution over time.”53 rights that now exist by way of land claims agreements or may be so acquired” Finally, in view of the importance of !is subsection, added in 1983, anticipates provincial laws as explained above, it must the signing of “modern” treaties or “land be emphasized that such laws are incapable of claims agreements,” and appears to recognize extinguishing Aboriginal rights. In the 1997
114 Volume 15, Number 3, 2006 their constitutional status. As noted above, the right of First Nations to educate their children federal government has, in fact, signed various in their own languages. What value would that transfer, educational, and self-government constitutional right have to First Nations? agreements with First Nations since 1982 and has also passed enabling legislation in three provinces and one territory. However, the What is the Value of !is federal government has not been prepared to Constitutional Right to First acknowledge the constitutional status of these Nations? arrangements without the participation and agreement of the province concerned, as was On one view of the matter, this Aboriginal/ obtained in the Nisga’a Final Agreement.58 constitutional right would have little value to !e Federal Policy Guide on Aboriginal Self- First Nations. True, the federal government Government states: could no longer legislate that right out of existence, but First Nations already have As a general principle, existing self-government protection against that remote possibility agreements will continue to operate according through the Charter’s guarantee of freedom to their existing terms. If requested by the 61 Aboriginal groups concerned, and with the of expression. Moreover, according to the full participation of the province or territory Supreme Court’s decision in Sparrow, the concerned, the federal government would federal government would still be entitled be prepared to explore issues related to to regulate or otherwise infringe upon the constitutional protection of aspects of the right so long as it could meet a standard of self-government arrangements set out in the justi#cation involving proof of the following: Sechelt Indian Band Self-Government Act that the regulation was for a “compelling in British Columbia, the Cree-Naskapi (of and substantial” objective, that it respected Quebec) Act, and the Yukon First Nations Self- “the special relationship of trust” between Government Act. Any changes or amendments the Crown and Aboriginal peoples, that it to existing arrangements, however, would only infringed as little as possible on the right, and be made with the full agreement of all parties that it was implemented in consultation with concerned.59 First Nations.62 Provincial laws of general It should be noted that in the same docu- application would also be allowed to regulate ment, the federal government acknowledged or infringe upon the right under the authority that Aboriginal self-government should extend of section 88 of the Indian Act,63 subject to “to matters that are internal to the group, inte- the same standard of justi#cation. Finally, the gral to its distinct Aboriginal culture”60 and, in Aboriginal/constitutional right recognized that regard, speci#cally mentioned Aboriginal by section 35 would not include an explicit languages and education. guarantee of public funding for Aboriginal language education; that kind of guarantee has Ironically, since self-government negotia- only been given to Canada’s o"cial language tions deal with all sorts of other matters beside minorities through section 23 of the Charter. language rights and tend to be very protracted, they have e%ectively prevented First Nations !ese observations may be legally accurate, from establishing their constitutional right to but they do not provide a proper measure of the educate their children in their own language. potential value of the Aboriginal/constitutional !at is because while these negotiations have right at issue. Such an appraisal requires an produced very few constitutionally recognized analysis of the right from two additional treaties including that right, they have discour- perspectives: (1) the nature of the right, and (2) aged First Nations from asserting that right its relationship with the Royal Proclamation of in the courts. Let us nevertheless assume that 1763. the Supreme Court of Canada has just decided that section 35 does recognize and a"rm the Aboriginal and, therefore, the constitutional
Constitutional Forum constitutionnel 115 (A) Nature of the Right that the freedom to choose is meaningless in the absence of a duty of the State to take positive Supreme Court jurisprudence to date has steps to implement language guarantees.64 only analyzed Aboriginal/constitutional rights in the context of access to physical resources Addressing speci#cally the Charter right such as land, game, or #sh. First Nations have to educate children in the o"cial languages of asserted their rights in these cases in order to Canada, the Supreme Court’s 1990 decision in stop governments from authorizing activities Mahe stated: that threatened to eliminate or reduce their access to those resources. !e provision provides for a novel form of legal right, quite di%erent from the type of In constitutional law terms, this kind of legal rights which courts have traditionally right is o&en called a “negative” right. It operates dealt with. Both its genesis and its form are to negate the authority of any government evidence of the unusual nature of s. 23. Section to extinguish or infringe upon Aboriginal/ 23 confers upon a group a right which places constitutional rights, though, as just noted, positive obligations on government to alter or develop major institutional structures.65 infringements are still possible on proof of justi#cation. Most of the provisions contained Moreover, there is no doubt that the in the Charter operate in the same way. !ey provincial and federal governments of Canada negate the authority of any government to already have positive obligations to provide deprive citizens of certain rights and liberties, funds for the education of all children, whether such as equality, freedom of expression, or Aboriginal or not, and whether covered freedom of association, unless those violations by treaties or not. Are those governments can be justi#ed under section 1 of the Charter. relieved of any duty to respect the Aboriginal/ constitutional right of First Nations to educate Now, in the present context, freedom of their children in their own languages merely expression is not just another right guaranteed because that right, unlike the right given by by the Charter. On the contrary, it guarantees, section 23, is not accompanied by an explicit among other things, the right of all citizens guarantee of public funding? Sections 16 to 20 to educate their children in their own, non- of the Charter contain no explicit reference to o"cial, languages at their own expense. It public funding either, but there is nevertheless would, therefore, make little sense to regard the no doubt that the Governments of Canada and Aboriginal/constitutional right of First Nations New Brunswick are constitutionally bound to educate their children in their own languages to provide the funding necessary to ful#ll the as merely a rea"rmation of the “negative” right positive language obligations imposed upon they already possess under the Charter. It makes them by those provisions. more sense to regard that right as a “positive” right intended not to negate governmental authority, but rather to impose governmental (B) !e Royal Proclamation of 1763 responsibility. As previously explained, the federal gov- !is view, in fact, is concordant with the ernment could have asserted direct legislative Supreme Court of Canada’s views about the authority over the education of Aboriginal chil- nature of language rights generally. In its 1999 dren in Aboriginal languages across Canada, decision in R. v. Beaulac, a majority of the Court but has never done so. Again, on one view of the wrote: matter, government inaction of this kind was, and still is, constitutionally acceptable because Language rights are not negative rights or no government is required to fully exercise its passive rights; they can only be enjoyed if the legislative authority. !at authority is permis- means are provided. !is is consistent with the sive, not mandatory. Where Aboriginal rights notion favoured in the area of international law are concerned, however, there is a competing view, one that traces its origins back to the Roy- al Proclamation of 1763.
116 Volume 15, Number 3, 2006 !e British had just defeated the French for this right can be characterized as contrary to control over most of North America, but had both logic and law: logic, because the continued inherited a new and urgent problem. To colo- exercise of this right does not require the nize this vast territory, they needed #rst to come reversal of any land cessions, and law, because to terms with the still-powerful Aboriginal na- only the continued exercise of this right permits tions who did not consider themselves bound its “evolution over time.” by the British victory, but who were prepared to recognize the British Crown if that would help Moreover, if this right was constitutionalized to stem the steady encroachment of settlers onto in 1982, it can be further asserted that the their lands. !e solution adopted by the Royal federal government has, since then, had Proclamation of 1763 o%ered something for ev- a double #duciary duty to act to protect eryone: it asserted British sovereignty over all Aboriginal languages hovering on the brink of lands not already “ceded” by Aboriginal nations, extinction. !e submission would be that since i.e., most of the continent; it promised Aborigi- the federal government can no longer pass a nal nations “who live under our Protection” un- law extinguishing an Aboriginal language right disturbed possession of these lands; and it cre- recognized under section 35 of the Constitution 68 ated a process for further settlement, but only Act, 1982, it can also no longer fail or refuse to through future land surrenders to the Crown. pass a law designed to protect that right from !is third feature forced local governments and imminent extinction. settlers to acquire lawful title directly from the No doubt, the federal government would Crown, thus facilitating more peaceful colo- still maintain that it has acted, both by funding nial expansion. But it also created a monopoly Aboriginal language initiatives and by allowing over the terms on which Indians surrendered many First Nations greater control over education their lands, as they were speci#cally prohibited generally. It might also dispute the need for from transferring their lands to anyone but the federal legislation, alleging that such legislation Crown. On Confederation, control of this mo- could never accommodate the di%ering needs nopoly passed from the British Crown to the and attitudes of all First Nations. Government of Canada. However, where language education rights More than two hundred years a&er the are concerned, a government can comply with Royal Proclamation, in the 1984 case of Guerin its minimal constitutional obligation only by v. Canada, the Supreme Court of Canada held enacting laws turning that obligation into an that the Crown-only surrender requirement enforceable right. !is was made clear by the “and the responsibility it entails” were “the Supreme Court of Canada’s decision in Mahe, source of a distinct #duciary obligation owed by 66 regarding section 23 of the Charter. !at the Crown to the Indians.” !e Supreme Court section does not speci#cally require provincial then expanded the scope of the #duciary duty legislatures to pass laws implementing the in Sparrow by agreeing with a lower court that constitutional right. Yet, the Court described the the federal government has the “‘responsibility constitutional obligation of those legislatures as . . . to protect the rights of Indians arising from follows: the special trust relationship created by history, treaties and legislation.’”67 [T]he government should have the widest possible discretion in selecting the institutional It can, therefore, be asserted that the federal means by which its s. 23 obligations are government has, and has always had, a #duciary to be met; the courts should be loathe to duty to protect the Aboriginal right of First interfere and impose what will be necessarily Nations to educate their children in their own procrustean standards, unless that discretion languages. !at right was clearly part and parcel is not exercised at all, or is exercised in such of their Royal Proclamation right to undisturbed a way as to deny a constitutional right. Once possession of unceded land. Any suggestion that the Court has declared what is required in subsequent land cessions somehow diminished Edmonton, then the government can and must do whatever is necessary to ensure that
Constitutional Forum constitutionnel 117 these appellants, and other parents in their Notes situation, receive what they are due under s. 23. Section 23 of the Charter imposes on provincial * David Garth Leitch, LL.B, LL.M, can be reached legislatures the positive obligation of enacting at [email protected]. !e author wishes precise legislative schemes providing for to thank Judith Garber, Deborah Hawken, and minority language instruction and educational Delia Opekakew for their comments on an earlier facilities where numbers warrant. To date, the version of this paper. !e opinions expressed can legislature of Alberta has failed to discharge be attributed only to the author. that obligation. It must delay no longer in 1 In 1963, the government of Prime Minister Lester putting into place the appropriate minority B. Pearson appointed a public enquiry known language education scheme.69 as the Royal Commission on Bilingualism and Biculturalism. Its mandate was to recommend ways to recognize the equality of Canada’s “two Conclusion founding peoples.” 2 House of Commons Debates (8 October 1971) at !is paper has asked whether Canada’s 8545 (Right Hon. P.E. Trudeau). First Nations also have the constitutional 3 !e federal government he led introduced the right to educate their children in their own #rst O#cial Languages Act in 1969. See O#cial th language at public expense. !e word “also” Languages Act, R.S.C. 1985, c. 35 (4 Supp.). acknowledges the fact that section 23 of the 4 Part I of the Constitution Act, 1982, being Charter70 speci#cally gives that constitutional Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter]. Section 23 provides: right to Canada’s o"cial language minorities. It (1) Citizens of Canada is clear that First Nations do not have exactly a) whose #rst language learned and still the same right as o"cial language minorities; understood is that of the English or the latter right is, for example, subject to the test French linguistic minority population of “where numbers warrant.” !e pedagogical of the province in which they reside, challenges facing First Nations would also be or very di%erent than those facing o"cial language b) who have received their primary school minorities. instruction in Canada in English or French and reside in a province where Still, this paper has proposed a positive the language in which they received that instruction is the language of answer to the question posed. It has done so the English or French linguistic by reading the Supreme Court of Canada’s minority population of the province, jurisprudence in relation to Aboriginal rights have the right to have their children receive primary and secondary school together with its jurisprudence in relation to instruction in that language in that section 23 of the Charter. !e opinion expressed province. is that Parliament can be obliged to adopt (2) Citizens of Canada of whom any child legislation implementing the constitutional has received or is receiving primary or right of First Nations to educate their children secondary school instruction in English in their own languages. Such legislation would or French in Canada, have the right to have all their children receive primary give First Nations an enforceable right and and secondary school instruction in the would permit the courts to measure and evaluate same language. that right against constitutional standards. !e (3) !e right of citizens of Canada under paper has also expressed the opinion that even subsections (1) and (2) to have their if federal legislation implementing this right children receive primary and secondary is not constitutionally required, it would still school instruction in the language of the be within the joint legislative authority of the English or French linguistic minority population of a province federal and provincial governments, it would be justi#ed, and it would survive Charter scrutiny. a) applies wherever in the province the number of children of citizens who have such a right is su"cient to warrant the provision to them out of public funds of minority language instruction; and
118 Volume 15, Number 3, 2006 b) includes, where the number of those ainc-inac.gc.ca/pr/trts/trty10_e.html>. children so warrants, the right to have them receive that instruction in 11 R.S.C. 1985, c. I-5. minority language educational facilities 12 Canada, Dominion of Canada Annual Report provided out of public funds. of the Department of Indian A!airs (Ottawa: Queen’s Printer, 1895) at xxiii, online: Library and 5 Ford v. Quebec (Attorney General), [1988] 2 S.C.R. Archives Canada
United Nations Human Rights Council. Article 14 ["omas]. of the Dra$ Declaration reads: 14 See Constitution Act, 1867, supra note 7, s. 93; 1. Indigenous peoples have the right to Yukon Act, S.C. 2002, c. 7, s. 18(o); Northwest establish and control their educational systems and institutions providing Territories Act, R.S.C., 1985, c. N-27, s. 16(n); and education in their own languages, in a Nunavat Act, S.C. 1993, c. 28, s. 23(m). manner appropriate to their cultural 15 Dick v. "e Queen, [1985] 2 S.C.R. 309, 1985 methods of teaching and learning. CanLII 80 at paras. 38, 40-44. !is decision has 2. Indigenous individuals, particularly been consistently followed and applied, most children, have the right to all levels recently in R. v. Morris, 2006 SCC 59 (CanLII). and forms of education of the 16 R. v. Marshall, [1999] 3 S.C.R. 456, 1999 CanLII State without discrimination. 665 [Marshall 1]. 17 "omas, supra note 13 at 446. 3. States shall, in conjunction with indigenous peoples, take e%ective 18 S.C. 1998, c. 24; S.N.S. 1998, c. 17. measures, in order for indigenous 19 S.C. 2000, c. 7; S.B.C. 1999, c. 2. individuals, particularly children, 20 S.C. 1986, c. 27. including those living outside 21 R.S.B.C. 1996, c. 416. their communities, to have access, 22 S.C. 1984, c. 18. when possible, to an education in their own culture and provided 23 R.S.Q., c. A-33.1. in their own language. 24 R.S.Q., c. C-11. 25 A federal statute, First Nations Jurisdiction over Report of the Human Rights Council, UN GA, Education in British Columbia Act, S.C. 2006, c. 61st Sess., Annex, UN Doc. A/C.3/61/L.18/Rev.1 10, received Royal Assent at the end of 2006 but is (2006), online UN High Commissioner for not in force at the time of publication. If this law Human Rights Constitutional Forum constitutionnel 119 34 Cloud v. Canada (Attorney General) (2004), 73 (1988), 28 O.A.C. 201 at para. 44 (C.A.), Blair J.A. O.R. (3d) 401, 2004 CanLII 45444. !e recent 68 Supra note 4. Indian Residential Schools Settlement Agreement 69 Supra note 49 at 393 [emphasis added]. of 8 May 2006 does not provide speci#c 70 Supra note 4. compensation for loss of language. It provides instead a “common experience payment” for all losses resulting from attendance at residential schools except sexual and serious physical abuse for which losses are assessed individually. See O"cial Court Notice, online: 120 Volume 15, Number 3, 2006