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Analysis
  |  
Indigenous
  |  
Rights + Justice

Canada Needs the ‘Every Child Matters Act’

It’s way past time to implement the TRC Calls to Action into law.

Tom McMahon 20 Aug 2021 | TheTyee.ca

Tom McMahon is former general counsel of the Truth and Reconciliation Commission, former executive secretary of the Manitoba Aboriginal Justice Inquiry and former senior counsel at Elections Canada.

The Government of Canada, Canada’s largest employer, counts several thousand highly paid lawyers on its payroll. Yet says it does not have access to the legal tools necessary to address the hundreds of unmarked graves recently uncovered at Indian residential schools across the country. In fact, it says, it does not know where to start.

The government says it plans to appoint a special interlocutor to work with Indigenous communities and the government to propose changes to federal laws, policies and practices that are related to unmarked graves at residential schools.

But I have a few other suggestions for where the government can begin.

The Truth and Reconciliation Commission Calls to Action include 11 — Calls to Action 69 to 79 — that are expressly about cemeteries and death records. The government should implement them immediately.

Then, do the following.

Immediately stop fighting the orders of the Canadian Human Rights Tribunal on the issue of discrimination against Indigenous children in delivery of child welfare services.

Canada created this tribunal and appointed its members, and it must accept the tribunal orders to pay compensation to children it discriminated against and to ensure that Indigenous children’s health needs are met in a timely fashion without waiting for federal and provincial governments to fight over who will have to pay the bill.

After everything Canada has done to Indigenous children, it’s appalling that it’s now in court arguing against the ruling.

Immediately implement Truth and Reconciliation Commission Call to Action 93, to revise, in collaboration with national Indigenous organizations, the information kit for newcomers to Canada and the citizenship test in order to reflect a more inclusive history of First Nations, Métis and Inuit peoples, including information about treaties and the history of residential schools.

In addition, when Canadian citizens apply to obtain or renew their passports, they should be provided with a booklet and online information that focuses on the diversity of Indigenous peoples, their inherent right to self-government and land ownership based on the principle of prior occupation, the general terms of the treaties that were signed with colonial powers, treaty promises not yet fully implemented, residential schools and intergenerational impact, and the principles of the United Nations Declaration on the Rights of Indigenous Peoples compared to the Indian Act.

Next, Canada should enact new legislation — specifically, the “Every Child Matters Act.” This new law would:

1. Enact provisions that are consistent with the July 1, 2021, statement of the Canadian Historical Association and modelled after the Ukrainian Famine and Genocide (“Holodomor”) Memorial Day Act, creating a new law acknowledging and commemorating the genocide carried out against Indigenous peoples in Canada. Canada acknowledges eight genocides around the world but not its own genocide.

In addition to the non-binding motion this February against China’s treatment of its Uyghur population, Canada recognizes the following genocides: the Holocaust during the Second World War; the Armenian genocide; the Holodomor; the Rwandan genocide; the Srebrenica massacres; the mass killing of the Yazidi people; and the mass murder of the Muslim Rohingya in Myanmar.

Yet Canada is silent about the genocide it carried out against Indigenous peoples here.

2. Amend the Criminal Code provision on genocide, Section 318(2), which was deliberately chosen to be narrower than the United Nations convention on genocide. Canada included, in its provision, “deliberately killing members of the group” and “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.” In other words, any attempts to destroy a group that stop short of deliberate mass murder are fine by Canada. Canada’s definition excluded these parts of the UN definition: “(b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.”

It is not enough for Canada to simply add in the provisions from the UN convention. We went narrower in the past; now it is time to go broader. This time, Canada should add the full UN convention and expressly include cultural genocide, just as Raphael Lemkin, the original driving force behind the convention and one of the drafters of the convention, wanted. The UN convention did not ask Indigenous peoples what they thought the definition of genocide should be, and colonial powers, including Canada, said they would not support the convention at all if it included a reference to cultural genocide. Shame on Canada.

3. Enact an inquiry under the Inquiries Act with power of subpoena and funding to go into all relevant archives and make digital copies of all relevant records relating to Indian residential schools, starting with Justice Canada, the RCMP and the Catholic Church. These would include records of the children who attended the schools, including any records of birth, baptism, communion and marriage while the child was a student at an Indian residential school. All Justice Canada files for every criminal prosecution and civil court case should be expressly included.

All statements of claim, all statements of defence, all motions and factums, all affidavits, examinations for discovery, transcripts, correspondence, court orders and Justice Canada legal advice should be included.

All Government of Canada memos relating to whether or not to enter into a settlement agreement and whether or not to issue an apology and memos concerning the negotiating positions for drafting those documents should be included.

All police files, witness interviews, correspondence and records transmitted between police forces to the RCMP, all communications between the RCMP and prosecutors, and all charges filed, should be included.

All school narratives and journals created by church personnel documenting the happenings within the parish where an Indian residential school operated should be included.

All records subject to Canada’s responses to all residential school issues should be within the mandate of the inquiry in order to undo the damage done by Justice Goudge in Fontaine v. Canada. Goudge ruled that how Canada responded to Indian residential schools is not “relevant” to the historical record about Canada’s treatment of Indian residential school children and not relevant to the mandate of the Truth and Reconciliation Commission of Canada. He could not have been more wrong. Canada’s response is the coverup.

Memorial at VAG
A woman pauses in front of a memorial at the Vancouver Art Gallery. Organizers collected children’s shoes to draw awareness to 215 bodies of children confirmed to be buried near Kamloops Indian residential school. Photo by Jen St. Denis.

4. Enact that all records from the Independent Assessment Process to determine survivors eligibility for compensation are to be preserved according to national archives and privacy laws unless the IAP claimant has expressly consented to the destruction of some or all of their records. Enact that the records be sealed for 20 years.

The current ruling of the Supreme Court is that all IAP records will be destroyed in 2027 unless a survivor has specifically requested to have their record preserved. In other words, the IAP refused to offer survivors any consent option at all until it was finally forced to by the courts, and even that “consent” option provides that any survivor who does not receive, understand or respond to the IAP’s consent offer will have their records destroyed without their consent.

How many survivors have died before having the chance to express a choice, how many are so sick and frail they can no longer meaningfully engage with the process, how many no longer have lawyers or cultural supports to explain the process and the choices to them, how many are so fed up with the entire process and with being forced to relive the memories of their abuse that they no longer want to have anything to do with the process?

How many thousands or tens of thousands of IAP claimants will simply not respond? The destruction without consent of evidence of residential school abuses must stop now by enacting a consent process for the destruction of records to be conducted by the National Centre for Truth and Reconciliation.

The Independent Assessment Process violated the Indian Residential Schools Settlement Agreement in the following ways: The IAP refused to give survivors the choice to have their records preserved, refused to give survivors the choice to donate their records to the Truth and Reconciliation Commission or the National Centre for Truth and Reconciliation, refused to reasonably co-ordinate with the TRC, refused to allow the TRC to build off the information collected and created by the IAP, and refused to create an archive for the purpose of preserving IAP records. The IAP refused to allow the TRC and NCTR to explain how survivors’ privacy and wishes would be respected and protected and to explain the value of preserving the records. The IAP refused to distinguish between different categories of IAP records for preservation or destruction. The IAP should never have been allowed to operate a consent program after having violated the settlement agreement in these many ways.

5. Enact that the Catholic Church is a legal entity and make all of its assets available to satisfy damage awards against the church, and not only the assets of a specific diocese. The Catholic Church has refused to incorporate itself as the hierarchical, national and international organization that it is. The Catholic Church routinely goes to court to argue that the church is not a legal entity and is not liable for paying damages it has caused, and that only the assets of an individual diocese are available to satisfy damage awards. This has to stop.

Further, enact that any municipality can impose property taxes on any religious properties as the municipality chooses (in a non-discriminatory way).

6. Amend the Crown Liability and Proceedings Act to state that any organization funded by the Government of Canada, as well as the Government of Canada itself, is vicariously liable for any child abuse committed by employees or volunteers of the organization that occurred within the general context of the services that were funded. Too many survivors of child abuse have had justice delayed and justice denied while the Government of Canada and the churches fought in court for years about vicarious liability, and the courts have never provided satisfactory clarity, which creates continuing needless litigation. The government can and must put an end to these litigation loopholes that only harm abused children.

7. Enact that the Indian Residential Schools Settlement Agreement is not discharged until all aspects of it have been fulfilled, including Catholic payments and disclosure by Canada and the churches of all relevant records. Enact that two parties to the settlement agreement do not have the power to amend the settlement agreement to waive financial obligations or document disclosure obligations under the settlement agreement without the consent of all parties. Further, no part of the settlement agreement should be discharged based on a misrepresentation by Canada or the churches.

582px version of ResidentialSchoolIndigenousWelfare.jpg
Students at the Shingwauk Residential School in Sault Ste. Marie, Ontario. Photo from Shingwauk Residential Schools Centre.

8. Amend the Criminal Code to implement Truth and Reconciliation Commission Call to Action 6 and repeal Section 43 of the Criminal Code, which makes it legal for school teachers, parents and guardians to assault children. Most of the section as written has already been struck down but the section remains unchanged and does not remotely correspond with the Supreme Court’s ruling.

The Supreme Court says that teachers cannot hit children, except by using reasonable force to restrain or guide a student (for example, out of a classroom). Further, anyone who is not a legal guardian of a child cannot hit the child. Further, even a parent or legal guardian is prohibited from hitting a child who is less than 24 months old or more than 12 years old. A parent or guardian can only use corrective force that is “transitory and trifling.” They cannot use force that might cause bodily harm, cannot hit a child because the parent or guardian has lost their temper, cannot use any object to hit a child, cannot hit a child on the head, cannot hit a child in a degrading, inhumane or harmful way and cannot hit a child who has disabilities and cannot “learn” from any hitting.

Yet the original Section 43 is still on the books and has not been changed to incorporate any of the Supreme Court’s guidelines. That makes Section 43 a “zombie” law that needs to be amended to precisely reflect the Supreme Court decision — or better yet, simply repealed. Evidence of the harm that hitting children causes and the number of countries that have repealed equivalent laws has been growing by leaps and bounds since the Supreme Court decision. There are now 63 countries that have eliminated legal excuses for hitting children. Canada is not one of them, despite our history of Indian residential schools and discrimination against Indigenous children through the '60s Scoop and underfunding Indigenous child welfare.

9. Amend the Crown Liability and Proceedings Act in order to implement Truth and Reconciliation Commission Call to Action 26:

“We call upon the federal, provincial and territorial governments to review and amend their respective statutes of limitations to ensure that they can conform to the principle that governments and other entities cannot rely on limitation defences to defend legal actions of historical abuse brought by Aboriginal people.”

(See “The Horrors of Canada’s Tort Law System: the Indian Residential Schools Civil Cases,” Section 7 (“Limitations”), and Kent McNeil, “Abuse of Indigenous Peoples Goes Beyond Residential Schools.”)

10. Enact an obligation on the Government of Canada to table an annual report listing every law society and every law school in Canada and explaining what each one has done to implement Truth and Reconciliation Commission Calls to Action 27 and 28, which demand that all law societies require all lawyers to take a professional development course, and all law schools require all law students to take a course on Indigenous diversity, history, rights under UNDRIP, the content of the various treaties and the yet-to-be-implemented treaty promises, and the specific requirements of the “honour of Crown,” fiduciary duty, duty to consult and Aboriginal title.

11. Amend the Statistics Canada Act to implement Truth and Reconciliation Commission Call to Action 39:

“We call upon the federal government to develop a national plan to collect and publish data on the criminal victimization of Aboriginal people, including data related to homicide and family violence victimization.”

(CBC’s Beyond 94 reporting asserted that this Call to Action had been completed. While Statistics Canada has made important changes to its homicide report, family violence reporting has yet to be addressed.)

12. Enact a process that will create Indigenous justice systems in order to implement Truth and Reconciliation Commission Call to Action 42:

“We call upon the federal, provincial and territorial governments to commit to the recognition and implementation of Aboriginal justice systems in a manner consistent with the Treaty and Aboriginal Rights of Aboriginal peoples, the Constitutional Act, 1982 and the United Nations Declaration on the Rights of Indigenous Peoples, endorsed by Canada in November 2012.”

The Report of the Aboriginal Justice Inquiry of Manitoba described Indigenous justice systems in the United States and proposed guidelines for creating them in Canada.

I would add that Indigenous justice systems in Canada should be developed and approved by Indigenous women. No Indigenous victims of violence should be forced into a process where they don’t feel safe or respected.

13. Amend Section 23 of the Access to Information Act and Section 27 of the Privacy Act to implement Truth and Reconciliation Commission Call to Action 51:

“We call upon the Government of Canada, as an obligation of its fiduciary responsibility, to develop a policy of transparency by publishing legal opinions it develops and upon which it acts or intends to act, in regard to the scope and extent of Aboriginal and Treaty rights.”

At a bare minimum, amend the Access to Information Act to permit non-disclosure of federal legal advice on Indigenous issues only for a period of 20 years.

14. Amend the Crown Liability and Proceedings Act to implement Truth and Reconciliation Commission Call to Action 52:

“We call upon the Government of Canada, provincial and territorial governments, and the courts, to adopt the following legal principles:

i) Aboriginal title claims are accepted once the Aboriginal claimant has established occupation over a particular territory at a particular point in time.

ii) Once Aboriginal title has been established, the burden of proving any limitation on any rights arising from the existence of that title shifts to the party asserting such a limitation.”

15. Enact provisions to implement Truth and Reconciliation Commission Call to Action 64 for any education institutions receiving federal funds:

“We call upon all levels of government that provide public funds to denominational schools to require such schools to provide an education on comparative religious studies, which must include a segment on Aboriginal spiritual beliefs and practices developed in collaboration with Aboriginal Elders.”

16. Amend the Library and Archives of Canada Act to implement Truth and Reconciliation Commission Call to Action 69:

“We call upon Library and Archives Canada to:

i) Fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples and the United Nations Joinet-Orentlicher Principles, as related to Aboriginal peoples’ inalienable right to know the truth about what happened and why, with regard to human rights violations committed against them in residential schools.

ii) Ensure that its record holdings related to residential schools are accessible to the public.

iii) Commit more resources to its public education materials and programming on residential schools.”

17. Amend the Historic Sites and Monuments Act to implement Truth and Reconciliation Commission Call to Action 79:

“We call upon the federal government, in collaboration with Survivors, Aboriginal organizations and the arts community, to develop a reconciliation framework for Canadian heritage and commemoration. This would include, but not be limited to:

i) Amending the Historic Sites and Monuments Act to include First Nations, Inuit and Métis representation on the Historic Sites and Monuments Board of Canada and its Secretariat.

ii) Revising the policies, criteria and practices of the National Program of Historical Commemoration to integrate Indigenous history, heritage values and memory practices into Canada’s national heritage and history.

iii) Developing and maintaining a national heritage plan and strategy for commemorating residential school sites, the history and legacy of residential schools and the contributions of Aboriginal Peoples to Canada’s history.”

18. Amend the Department of Justice Act to require all Department of Justice legal advice and litigation positions to be consistent with UNDRIP, the honour of the Crown, the fiduciary duty and the duty to consult (including definitions of the latter three terms).

Further amend the Department of Justice Act to require the department to table before Parliament a statement on whether each new bill or regulation has a significant risk of infringing Indigenous rights, including whether any Indigenous group has made such an assertion. This would be modelled on Section 4.2 of the act on charter statements.

After more than 150 years of extreme discrimination against Indigenous peoples, it is time to demand bolder steps than it seems like Justice Canada will ever support.

Canada needs the Every Child Matters Act. We need to implement the Truth and Reconciliation Commission Calls to Action in law.  [Tyee]

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