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Finding Constitutional Space for Aboriginal Language Rights

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Finding Constitutional Space for Aboriginal Language Rights Our Languages are Sacred: Finding Constitutional Space for Aboriginal Language Rights By Lorena Sekwan Fontaine A Thesis submitted to the Faculty of Graduate Studies of The University of Manitoba in partial fulfillment of the requirements of the Degree of DOCTOR OF PHILOSOPHY Department of Peace and Conflict Studies Individual Interdisciplinary Program University of Manitoba Winnipeg COPYRIGHT © 2018 BY LORENA SEKWAN FONTAINE A Note on Copyright and Intellectual Property Rights: While the copyright of this dissertation rests with me, Lorena Sekwan Fontaine as the researcher and author, I declare that Jerry Saddleback, has inherent cultural rights and ownership of the oral history and cultural information contained in this dissertation regarding the teaching of syllabics. I further claim first rights to any intellectual property arising from the cultural knowledge as derived from Jerry Saddleback. Those seeking secondary use of the materials regarding the oral history and teachings of syllabics must honour Jerry Saddleback’s inherent authority and must seek permission from him. Table of Contents Abstract ...........................................................................................................................................i Acknowledgements.......................................................................................................………….ii Dedication…..................................................................................................................................iii Preface ...........................................................................................................................................iv INTRODUCTION ........................................................................................................................1 CHAPTER 1 Aboriginal Customs, Practices and Traditions in the Prairies ...............................19 CHAPTER 2 Linguistic Harm: Residential Schools and Canada’s Assimilation Policy ………................................................................................................................................78 CHAPTER 3 Evidence of Continuity: Advocacy and Recognition of Aboriginal Language Rights in Canada …....................................................................................................111 CHAPTER 4 Indigenous Language Rights under International Law and Other Jurisdictions ................................................................................................................................167 CHAPTER 5 Aboriginal Language Rights Under Canada’s Constitution Act, 1982 ….................................................................................................................................197 BIBLOGRAPHY.......................................................................................................................219 Appendix A ............................................................................................................................... 247 List of Figures Image 1:1 Map of Northern Manitoba in the Swampy Cree dialect……………………………21 Image 1:2 Map of Aboriginal Territory and Languages in the Hudson Bay area …...…………22 Image 1:3 Image of Algonquian languages……………………………………………………..23 Image 1:4 Map of the Siouan Language………………………………………………………...23 Map 1:5 Map of Kelsey’s route into the interior………………………………………………..33 Image 1:6 Henry Kelsey’s Dictionary.………………………………………………………….36 Map 1:7 Indian Mission Schools in the Prairie Region..………………………………………..49 Image 1:8 Students From the Indian Mission School…………………………………………...49 Image: 1:9 Original Cree Syllabics.……………………………………………………………..59 Image 1:10 Syllabics used by James Evans.………………………………………………….....60 Image 1:11 Isaac Pitman Shorthand..……………………………………………………………62 Image 1:12 Translated Letter from Cree Syllabics to English …………………………………66 Image 1:13 Syllabrium for the Cree Language and for the Inuit Language ................................69 Image 1:14 Syllabrium adapted to the Cree, Saulteaux and to the Inuit Language ...…………..69 Image 1:15 Inuit Syllabic Writing System………………………………………………………70 Abstract This doctoral thesis argues that Aboriginal languages have a special constitutional status under section 35 (1) of the Constitution Act, 1982. Using the framework established by the Van der Peet case (that in order for an Aboriginal activity to be recognized as an Aboriginal right it must be demonstrated as a practice, custom, and tradition at the time of contact with a “modest” ability to evolve”) this thesis argues that special constitutional status must be obtained due to four reasons, each divided into chapters. Chapter One argues that Aboriginal language rights are derived from Aboriginal customs, practices, and traditions identify language as a sacred and inalienable right. These customs, practices, and traditions form the basis for law and frame these languages as inherent and a duty to transmit to future generations. Using inter-customary and historical language practices between European and Aboriginal peoples this thesis also suggest that linguistic exchange created a unique body of law and formed the basis for relationships between diverse cultures and national groups. Chapter Two traces the disruption Canada’s assimilation policies have had on Aboriginal languages, particular in educational policy and residential schools. As this thesis suggests, this was a violation of Canada’s common law as inter-customary law regarding language was not extinguished or surrendered by law or treaty. This forms a large part of what the Truth and Reconciliation Commission of Canada has called Canada’s “cultural genocide” – a practice successive federal governments have admitted as wrong and now commit to rectifying in policy and practice. If Canada is committed to a “new relationship” with Aboriginal peoples on a “nation-to-nation” basis Aboriginal languages must be recognized as a seminal and foundational part of Canadian law and constitution. Chapter Three frames Aboriginal languages as crucial and ongoing parts of Aboriginal customs, practices, and traditions today, continuing a pre-contact sacred character that fulfills the Van der Peet criteria. For evidence this thesis cites Aboriginal people’s advocacy for language preservation and promotion through law; ongoing attempts to express constitutional recognition regionally; the unwritten principles of the Canada’s constitution; and government recognition of the centrality of Aboriginal language through constitutional negotiations, national studies and Royal Commissions. Chapter Four argues that International law is a crucial arena in which Aboriginal language rights can, has, and should be asserted. Furthermore, Canada has committed to implementing the United Nations Declaration on the rights of Indigenous Peoples that recognizes Aboriginal peoples’ language rights in a number of areas such education. Chapter 5 presents the pressing need for constitutional recognition of Aboriginal language rights that would include a positive obligation on the State to guarantee Aboriginal peoples the right to education in their Aboriginal languages. It also sets out the broad lines of how constitutional recognition could be achieved. i Acknowledgements I would not have been able to complete my research without the love and support of my mother Doris Young and the wisdom of her twin sister, my Auntie, Esther Sanderson. I am also very grateful for the encouragement of Verna Kirkness and for her availability to listen to my ideas while she was living in Winnipeg. I would like to recognize and thank the Social Sciences and Humanities Research Council, the National Aboriginal Achievement Foundation and the PhD Studies for Aboriginal Scholars, University of Manitoba, for their financial support. I would also like to thank James Gorton, Hudson’s Bay Company Archives, and Doug Smith, Truth and Reconciliation Commission of Canada for their research assistance. I also acknowledge my supervisor Peter Kulchyski and my committee members Jean Friesen and Gerald Heckman for their guidance and support. ii Dedication To my grandparents Elizabeth Jane Young and Senator John Young who risked their freedom to ensure the Cree language was kept alive in my family. To my daughter Sarah (Nimijiien Niibense) Fontaine-Sinclair, it was her birth that inspired me to go back to school. I also dedicate this research to all Aboriginal peoples who were made to feel that the cultural abuse they experienced as children in residential school was not a violation of human decency and their Aboriginal right. iii Preface Although this thesis presented a challenge to write, Chapter Two on the impact of residential schools on Aboriginal languages and cultures was extremely demanding. Although there have been a number of public discussions about what occurred in the residential schools and their legacy, many Aboriginal families do not discuss the personal implications of these schools. It’s too painful. As a result, I had to find out what happened in these schools by reading books and listening to the testimonies revealed to the Truth and Reconciliation Commission. At least those public gatherings created a sense of community and provided cultural support workers to talk to if needed. In my case, however, as a student reading books in isolation, I found it extremely hard to learn about the abuse of Aboriginal children and to think about what happened to my parents and grandparents. It is important to mention this because writing about residential
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