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Rights + Justice
Federal Politics

Truth and Reconciliation? What Truth and Reconciliation?

By ignoring Indigenous rights and child protection, our parties have sentenced a vital national inquiry to a quiet death.

Tom McMahon 7 Oct

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 fact that reconciliation isn’t a headline issue during this year’s federal election campaign, despite government and business determination to build a new pipeline for Alberta bitumen, is just one indication that ‘we’re not there yet.’” — Senator Murray Sinclair

Remember when Prime Minister Justin Trudeau promised to implement all of the Truth and Reconciliation Commission’s Calls to Action? That was memorable.

The CBC’s Beyond 94 is the best collection and summary available of Canada’s implementation of the TRC’s Calls to Action. Beyond 94 shows that, as of July 2019, 26 of the 94 Calls to Action had not even been started, and only 10 were fully completed.

The Conservatives never promised to follow the TRC’s Calls to Action, and it’s clear they are utterly opposed to any reconciliation with Indigenous peoples. So a little balance is necessary in assessing the government’s performance.

Let’s look at four of the TRC’s Calls to Action. Where are the political parties on these four items?

Implement UNDRIP

Calls to Action 24, 27, 28, 42, 43, 44, 48, 50, 57, 67, 69, 70, 86 and 92 commit Canada, churches, universities and Canadians to implement through domestic legislation and other measures the United Nations Declaration on the Rights of Indigenous Peoples.

In response, the House of Commons passed Bill C-262 in 2018 to require Canadian law to harmonize with UNDRIP. After it became apparent in 2019 that Conservative efforts to prevent a third and final reading in the Senate for C-262 would succeed, the Liberals announced they would once again campaign on a promise to legislate UNDRIP if re-elected in the fall.

But C-262 was a private member’s bill by NDP MP Romeo Saganash, who is not running again in this year’s election. Exactly why wasn’t his bill a Liberal government bill?

The Greens and NDP have also promised legislation to implement UNDRIP. But let’s unpack this a bit.

UNDRIP’s most important provision is that Indigenous nations have a right to free, prior and informed consent about anything that will happen on their lands. Conservatives especially, and others, are petrified this might mean that Indigenous peoples can say no to pipelines and any other proposal their colonial governments set their minds to. In their view, the right to consent cannot possibly mean the right to say no. This is the fundamental reason that former prime minister Stephen Harper refused to allow Canada to endorse UNDRIP in 2007 at the United Nations.

After Bill C-262 died in the Senate, the Liberals said again that if re-elected they will implement UNDRIP. Fool me once, shame on you...

And what about the NDP? I find their position to be very confusing. Do they support the liquefied natural gas pipeline and gas plant in northern B.C. even though hereditary chiefs are opposed to it?

The NDP seems to be in favour of the Coastal GasLink LNG pipeline beginning in Dawson Creek and ending at a plant in Kitimat. This position seems to be their only chance of retaining retiring MP Nathan Cullen’s seat in northern B.C. But how can the NDP tell the Liberals: “You. Bought. A. Pipeline.” and then support a different pipeline (kinda sorta, nudge, nudge, wink, wink) even if hereditary chiefs are opposed? The same problem applies to the Site C dam and other projects that require major intrusions onto Indigenous lands. The UN Committee on the Elimination of Racial Discrimination told Canada that it is concerned “that the realization of the Site C dam without free, prior and informed consent, would permanently affect the land rights of affected Indigenous peoples in the Province of British Columbia. Accordingly, it would infringe Indigenous peoples’ rights protected under the International Convention on the Elimination of All Forms of Racial Discrimination.”

Again, for balance, let’s recognize that the Conservatives do not believe that Indigenous peoples have any right whatsoever to free, prior, informed consent over developments on their land. All fossil fuel projects are good. Indigenous peoples lost their land rights because England said so. End of story. God save the Queen and all of the colonialism and white supremacy she gave to Canada.

Independent Senator Murray Sinclair told APTN: “That [UNDRIP] doesn’t mean that we’re vetoing [proposals]. It doesn’t mean that First Nations people, or Indigenous people outside of Indian reserves, are vetoing anything. Just because they say you can’t run a pipeline across my land doesn’t mean you can’t run it somewhere else.”

582px version of Idle No More signs
NDP MP Romeo Saganash took it upon himself to create a bill aligning Canada’s laws with that of the United Nations Declaration on the Rights of Indigenous Peoples. Conservatives killed it in the Senate. Photo by

Child welfare

As you would expect, the TRC’s first five Calls to Action are about child welfare. The Government of Canada, and therefore the people of Canada, have discriminated against Indigenous children and youth for well over a century. In 1977, the Canadian Human Rights Act was finally enacted, but it included the odious provision that no one was allowed to allege discrimination under the Indian Act. Finally, in 2008, section 67 was repealed.

As of today, in 2019, the Canadian Human Rights Tribunal, which Canada created, has issued eight different orders to the federal government to stop discriminating against Indigenous children with respect to child welfare funding and programs.

There are eight because each one of them is a response to Canada’s failure to implement the previous order. Every single time, the federal government — and therefore Canadians as a whole — refused to comply with these orders and the law and tribunal that we created.

Under the Canadian Human Rights Act and the Indian Act, Canada finally allows complaints about discrimination, but we will not comply with the orders that result. When Spain adopted laws to limit the worst abuses against Indigenous peoples by Spanish invaders and settlers in the early 16th century, a notorious phrase arose: “I obey but do not comply.” This is Canada in the 21st century.

We must respect and implement the orders of the Canadian Human Rights Tribunal. But last week the Liberals announced that they will appeal the most recent order, and yesterday the Conservatives said they would do the same. The NDP and Greens said they would implement the tribunal’s order.

Assaulting children

Almost everyone knows this: if you hit someone without their consent, it is a criminal offence. It’s called assault. Except when you hit a child.

Children are the most vulnerable people to being hit, because hitting them is permitted by law and children have virtually no ability to defend themselves, either physically or in court. The Supreme Court of Canada, the Criminal Code and Canadians apparently like it that way.

In Indian residential schools, children were hit all the time. Morning, noon and night. For every imaginable, invented reason. Canada and the churches never had a law, regulation or policy telling Indian residential school administrators and teachers just how to go about hitting children in a “reasonable” way until the 1950s. Just hit them reasonably.

There was never a conviction in Canada for unreasonable hitting of Indigenous children until 1998 (the very few convictions to that point in time involved sex offences). In 1998, Jane Kakaychawan, a nun, was convicted of assault at St. Anne’s Indian Residential School in Fort Albany, Ont., and given a conditional sentence. Ann Wesley, another nun at the same school, was convicted in the spring of 1999 of three charges of administering a noxious substance and five counts of assault. Judge Robert Boissoneault imposed no sentence on the 72-year-old woman, saying that in her case, the conviction was punishment enough. These are the only cases of physical assault (not including sexual assault) that ever resulted in a conviction through the entire history of Canada’s Indian residential schools (and both convictions were against women.)

With this background, it is natural that the TRC’s Call to Action 6 calls upon the federal government to repeal section 43 of the Criminal Code. This is the section that expressly permits adults to hit children without fear of being charged with criminal assault.

Section 43 says: “Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.”

In 1991, Canada ratified the United Nations Convention on the Rights of the Child, article 19 of which mandates the protection of children from all forms of physical or mental violence, injury or abuse. But we did not repeal section 43.

In 2004, the Supreme Court of Canada interpreted section 43 in such a way that the Supreme Court’s interpretation bears almost no relation whatsoever to the actual words in section 43. The Supreme Court interpreted section 43 to mean that teachers are not allowed to hit children, but parents (or a person standing in place of a parent — would this include a priest or a nun in residential school?) are allowed to hit children in “reasonable” ways.

Somehow, everyone in Canada is supposed to know what the Supreme Court thinks is a reasonable way to hit children. Examples: according to the court, it is always unreasonable to hit children under the age of 24 months (beware your 25th month!) or 13 years or older. Every child in between those ages can be hit if the hitting is only intended to help the child learn rather than for punishment. No objects may be used in the hitting; the hitting must be below the head; the impact of the force used must be transitory and trifling — don’t leave any marks.) By assuming that everyone knows these rules and will obey, the Supreme Court thinks that keeping section 43 in the Criminal Code — unchanged — is just fine.

The United Nations Committee on the Rights of the Child told Canada in 2012: “The Committee is gravely concerned that corporal punishment is condoned by law in the State party under Section 43 of the Criminal Code. Furthermore, the Committee notes with regret that the 2004 Supreme Court decision Canadian Foundation for Children, Youth and the Law v. Canada, while stipulating that corporal punishment is only justified in cases of ‘minor corrective force of a transitory and trifling nature,’ upheld the law. Furthermore, the Committee is concerned that the legalization of corporal punishment can lead to other forms of violence... The Committee urges the State party to repeal Section 43 of the Criminal Code...”

Fifty-seven countries around the world have repealed their laws similar to section 43. A joint statement by 600 organizations and experts reviewed the evidence and human rights issues and recommended repealing section 43. These experts find that hitting children does not help them to learn anything and harms them.

By contrast, the UN Committee on the Rights of the Child expressly called on the Catholic Church to renounce corporal punishment. But the Catholic Church thinks the right to hit children is a religious matter and a private matter “according to the moral and religious values offered by Catholic doctrine.” We saw everything we needed to see about the moral and religious values in Catholic doctrine during the last century of Indian residential schools.

Canada’s political parties are horrified about the political implications of repealing section 43 of the Criminal Code. There are too many Canadians who still believe that parents need the right to hit their children without government interference.

Which political party in 2019 is promising to repeal section 43 of the Criminal Code?

Public memorials

One of the ways that colonialism expresses itself is to rename places in honour of colonial heroes by eliminating Indigenous names and erecting statues to honour and revere those who played the most important roles in stealing Indigenous lands for the sake of England’s empire.

History does not have to be a zero-sum game. History does not have to be an exercise in subtraction. As much as I might personally despise statues, street and park names, city names and provincial names to honour England’s colonialism (British Columbia, Victoria, Vancouver, Prince George, Alberta, Regina, York, New Brunswick, Nova Scotia, Halifax, Newfoundland, etc.) we cannot possibly remove every one of those. At the very least, can we not do history by addition?

Can we please honour and remember Indigenous contributions to Canada? Can we please tell the truth about 150 years of discrimination against Indigenous peoples? The TRC’s Calls to Action 81 and 82 call on our federal and provincial governments to install a “publicly accessible, highly visible, Residential Schools Monument in each capital city to honour Survivors and all the children who were lost to their families and communities.” Not a single government of any political party has chosen to do this one simple thing. Why not? Why is this so difficult? Who will ask the NDP provincial government of B.C. and their Green supporters just what they are waiting for?

The National Centre for Truth and Reconciliation has been working on identifying the names of those children who died in Indian residential schools. So far, it has confirmed 2,800 names, but there are at least 1,600 others whose identities are not yet confirmed. This is important but not enough. Records are important and names are important; so are public memorials.

Federally, we have a wonderful stained glass window that tells a symbolic story of Indian residential schools in the House of Commons. This is nowhere near sufficient as a public monument.

Will anyone commit to implementing Calls to Action 81 and 82?

And bigger picture: Have the Truth and Reconciliation Commission Calls to Action been buried and forgotten by Canada’s federal political parties? In the election of 2019, that’s how it feels to me.  [Tyee]

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