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.”